The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency") concerning the denial of the Certificate of Need (“CON”) Application No. 10234, filed by North Brevard County Hospital District d/b/a Parrish Medical Center (“Parrish”). 1. On December 5, 2014, the Agency issued a State Agency Action Report (“SAAR”) preliminarily denying CON Application 10234 seeking to establish a new 20-bed comprehensive rehabilitation unit in District 7, Brevard County. The decision was published in Filed March 10, 2015 3:06 PM Division of Administrative Hearings the Florida Administrative Register on December 8, 2014. Exhibit 1. 2. On December 29, 2014, Parrish petitioned for a formal administrative proceeding to appeal the Agency’s initial denial of its CON application. The case was referred to DOAH and assigned Case No. 15-0133. 3. On December 29, 2014, Healthsouth of Sea Pines Limited Partnership, d/b/a Heaithsouth Sea Pines Rehabilitation Hospital (“HealthSouth Sea Pines”) petitioned for a formal administrative proceeding in support of the Agency’s preliminary denial of CON Application No. 10234. The case was referred to DOAH and assigned Case No. 15-0132. 4. On January 26, 2015, Parrish filed a Notice of Voluntary Dismissal of Case No. 15-0133. Exhibit 2. 5. On January 26, 2015, HealthSouth Sea Pines filed a Notice of Voluntary Dismissal of Case No. 15-0132. Exhibit 3. It is therefore ORDERED: 6. The denial of Parrish’s CON Application No. 10234 is UPHELD. ORDERED in Tallahassee, Florida, on this /O day on Liat ch, 2015. Elizabeth Dudek, Secretary 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. Page 2 of 3 CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- _— named persons by the method designated on this bike of Ltt , 2015. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings www.doah.state.fl.us (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine.novak(@ahca.myflorida.com (Electronic Mail) David C. Ashburn, Esquire Michael J. Cherniga, Esquire M. Hope Keating, Esquire Greenberg Traurig, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32301 ashburnd‘@gtlaw.com chernigam@gtlaw.com keatingh@gtlaw.com R. Terry Rigsby, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Turigsby@penningtonlaw.com Brian@penningtonlaw.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol .fitch@ahea.myflorida.com (Electronic Mail) Page 3 of 3 Miscellaneous AGENCY FOR HEALTH CARE ADMINISTRATION Certificate of Need DECISIONS ON BATCHED APPLICATIONS The Agency for Health Care Administration made the following decisions on Certificate of Need applications for Hospital Beds and Facilities batching cycle with an application due date of September 3, 2014: County: Brevard Service District: 7 CON #10233 Decision Date: 12/5/2014 Decision: A Applicant/Facility/Project: Indian River Behavioral Health, LLC Project Description: Establish a 74-bed child/adolescent psychiatric hospital Approved Cost: $16,737,262 County: Brevard Service District: 7 CON #10234 Decision Date: 12/5/2014 Decision: D Facility/Project: Parrish Medical Center Applicant: North Brevard County Hospital District Project Description: Establish a 20-bed comprehensive medical rehabilitation unit County: Broward Service District: 10-] CON #10235 Decision Date: 12/5/2014 Decision: A Facility/Project: Plantation General Hospital Applicant: Plantation General Hospital Limited Partnership Project Description: Establish a 200-bed replacement acute care hospital Approved Cost: $0 A request for administrative hearing, if any, must be made in writing and must be actually received by this department within 21 days of the first day of publication of this notice in the Florida Administrative Register pursuant to Chapter 120, Florida Statutes, and Chapter 59C-1, Florida Administrative Code. EXHIBIT 1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE BEARINGS NORTH BREVARD COUNTY HOSPITAL DISTRICT d/b/a Parrish Medical Center, CASE NO.,: 15-0133CON CON NO. 10234 Petitioner, Vs. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION. Respondents. / NOTICE OF VOLUNTARY DISMISSAL North Brevard County Hospital District d/b/a Parrish Medical Center. by and through its undersigned counsel, hereby provides notice of its voluntary dismissal of its Petition for Formal Administrative Proceedings, by which it initiated Case No. 05-0133CON on January 8, 2015. Respectfully submitted this 26" day of January, 2015. GREENBERG TRAURIG, P.A. 101 East College Avenue Post Office Drawer 1838 Tallahassee, FL 32302 ‘Velephone: (850) 222-6891 Facsimile: (850) 681-0207 MICHAEL {CHERNIGA Florida Bar No. 328014 chernigam@gtlaw.com Counsel for North Brevard County Hospital District d/b/a Parrish Medical Center EXHIBIT 2 Filed January 26, 2015 12:39 PM Division of Administrative Hearings CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that the foregoing was filed by eALJ with the Division of Administrative Hearings. The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, and copy furnished 1o the following by electronic delivery this 26th day of January, 2015: Lorraine M. Novak, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Lorraine. Novak @ahca.myflorida.com Michael J. Chédiga _ TAL 451937932v1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS HEALTHSOUTH OF SEA PINES LIMITED PARTNERSHIP, d/b/a HEALTHSOUTH SEA PINES REHABILITATION HOSPITAL, Petitioner, Case No. 15-0132CON VS. NORTH BREVARD COUNTY HOSPITAL DISTRICT, d/b/a PARRISH MEDICAL CENTER and AGENCY FOR HEALTH CARE ADMINISTRATION, Respondents. HEALTHSOUTH OF SEA PINES LIMITED PARTNERSHIP, d/b/a HEALTHSOUTH SEA PINES REHABILITATION HOSPITAL’S NOTICE OF VOLUNTARY DISMISSAL Petitioner. HealthSouth of Sea Pines Limited Partnership, d/b/a HealthSouth Sea Pines Rehabilitation Hospital, by and through the undersigned counsel, hereby voluntarily dismisses its petition in the above-styled proceedings. Respectfully submitted this Lo day of January, 2015. (a R. am RRY Y RIGSB Y Florida Bar Number: a BRIAN A. NEWMAN Florida Bar Number: 0004758 PENNINGTON, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 (32302-2095) Tallahassee, Florida 32301 Telephone: 850-222-3533 Facsimile: 850-222-2126 nie: cerati . EXHIBIT 3 Filed January 26, 2015 1:45 PM Division of Administrative Hearings E-Mail: — trigsby‘@penningtoniaw.com brian’@penningtonlaw.com Attorneys for HealthSouth Sea Pines Rehabilitation Hospital CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was filed with by eALJ with the Division of Administrative Hearings. The DeSoto Building. 1230 Apalachee Parkway. Tallahassee, Florida 32399-3060, and copy furnished to the following by electronic delivery this ¢ day of January, 2015: Lorraine M. Novak, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive. Suite 3431 Tallahassee. Florida 32308 Lorraine. Novak ‘wahca.myflorida.com ae aaa in =f d — ATTORNEY oP 7D
The Issue The issue is whether the application filed by Humana Hospital Cypress for a certificate of need to operate an inpatient cardiac catheterization laboratory should be approved.
Findings Of Fact The parties Humana Cypress General description Humana Hospital Cypress (Humana Cypress) is a 273-bed acute care hospital in Pompano Beach, Broward County, Florida. Eighteen of its beds are intensive/cardiac care beds and 48 beds are telemetry beds, which are used to monitor cardiac patients. It is located within two miles of a publicly funded hospital, Imperial Point Medical Center, operated by the North Broward Hospital District. Humana Cypress is located in an area with a large population of the elderly. About 80 percent of Humana's patients are over 65 years of age. About 26 percent of its admissions in 1990 were primarily for cardiac related problems and another 14 percent had a secondary diagnosis which was cardiac related. Humana Cypress provides a broad range of services for the diagnosis and treatment of coronary problems, including electrocardiology, echocardiology, nuclear medicine heart studies, stress testing, holter monitoring, outpatient magnetic resonance imaging, and other non-invasive procedures. Humana Cypress has operated a cardiac catheterization lab for outpatients since outpatient services were deregulated by the Legislature. Humana Cypress has been fully accredited with the Department of Health and Rehabilitative Services and by the national accreditation group for hospitals, the JCAHO. Humana Cypress has contracts with preferred provider organizations, and several health maintenance organizations including an HMO known as Humana Medical Plan (HMP) which is owned by Humana, Inc., the parent company of Humana Cypress. Humana Cypress serves more HMP patients than any other Florida hospital. About 112,000 Humana Medical Plan members reside in Broward County, many of whom are served at Humana Cypress. The existing outpatient cardiac catheterization laboratory Humana Cypress opened an outpatient cardiac catheterization lab in March of 1988 after outpatient services were no longer subject to certificate of need review. That lab occupies about 500 square feet, with an adjacent control room of 120 square feet, and equipment room of 150 square feet. There is no minimum size for a lab in the Department's rules. The lab is located in the hospital's radiology department and has appropriate equipment. The room can also be used for arteriography and billiary drainage procedures. While the lab is rather small, its size is adequate. The use of the lab for other procedures limits the maximum number of caths it can perform, but the multiple uses enhances the efficiency of the use of the square footage of the lab. In the first half of 1991, 160 outpatient catheterizations were performed in the lab. The outpatient laboratory is an open laboratory, meaning that any physician who satisfies the criteria to obtain credentials for the lab may perform catheterizations. No one doctor has an exclusive franchise to provide all catheterizations at the lab, as is the case at some other hospitals. Five physicians with active staff privileges perform outpatient catheterizations at Humana Cypress. Those cardiologists who use Humana Cypress have privileges at other Broward hospitals. The outpatient lab is appropriately staffed. The medical director of the laboratory is Dr. Munusqamy, a board certified cardiologist who has 11 years experience performing catheterizations. The existing staff is sufficient to handle an increased volume of patients. In 1990 179 outpatient catheterizations were performed and volume increased during the first six months of 1991, when 160 catheterizations were performed. No patient required hospitalization immediately following the procedure. Patients admitted to Humana Cypress who need diagnostic cardiac catheterization cannot have the catheterization performed at the Humana Cypress cath lab, which is able to perform it, but instead are transported to a hospital which has a certificate of need to perform inpatient catheterizations. From a medical point of view, the lab at Humana Cypress will operate the same way it does now, whether or not the certificate of need for inpatient services is approved, although it will be used more intensively than it is now if the CON is approved. Florida Medical Center Florida Medical Center, Ltd. (FMC), is a 459-bed acute care hospital located in western central Broward County. It provides a broad range of cardiology services including both cardiac catheterization and open heart surgery. It is the largest provider of catheterization in HRS District X (Broward County), and the third largest provider of cardiac catheterization in this state. More than 3,000 catheterizations are performed there each year. It currently has three separate catheterization laboratories. Its open heart surgery program was the first one in Broward County and approximately 700 open heart surgeries are performed there each year. FMC provides a high quality care. It has contractual agreements with Humana to provide diagnostic cardiac catheterization, open heart surgery, angioplasty (i.e., therapeutic cardiac catheterization), and psychiatric services to Humana Medical Plan patients. The proposed service area for Humana Cypress' cardiac catheterization laboratory overlaps the service area of FMC. FMC served 110 Humana Medical Plan patients in 1990 in the two diagnostic related groups for diagnostic catheterizations, DRG #124 and #125. Humana Cypress would be able to perform these catheterizations if its CON application is approved. Those Humana HMO patients generated approximately $500,000 in gross revenues for FMC, i.e., total revenue for before taking into account the cost of providing the service to those patients. Humana, Inc., will have an incentive to redirect some portion of these patients to Humana Cypress, one of its own hospitals, if this application is approved. FMC has had a decline in its revenues, with a down turn in the total number of cardiac catheterizations. If the application of Humana Cypress is approved, FMC will lose patient revenue without a dollar-for-dollar decline in its costs. FMC, as an existing cardiac catheterization provider, will be adversely affected financially by approval of the certificate of need application filed by Humana Cypress and has standing to challenge the application. The Department of Health and Rehabilitative Services The Department of Health and Rehabilitative Services is the agency charged with making the determination of whether to issue a certificate of need. Section 381.701(4), Florida Statutes (1989). It's state agency action report proposed to deny the application. The Humana Cypress inpatient cardiac catheterization application Humana Cypress proposes to establish inpatient cardiac catheterization services by conversion of its present outpatient catheterization laboratory. This application involves no new capital expenditures. The capital expenditures were made when the lab was built and equipped. Interest expenses were incurred as a result of the equipment purchase and the cost is being depreciated by the hospital. No space must be converted to accomplish diagnostic catheterizations for patients admitted to the hospital. The project cost of $260,000 stated in the application reflects the book value of the new equipment purchased when the outpatient lab was established more than four years ago. No additional hospital staff will be needed to provide inpatient catheterization services. The five cardiologists and existing staff can accommodate the projected additional patient volume. Should a patient require open heart surgery as an immediate consequence of catheterization, Humana Cypress has an agreement to transport the patient to Holy Cross Hospital for that surgery. The hospital projects that inpatients who receive cardiac catheterization will have their bills paid in the following ways: 32 percent by Medicare, 5 percent by Medicaid, 51 percent by Humana Medical Plan, 4 percent by other health maintenance organizations, 5 percent through commercial insurance, and 3 percent of its billings will go unpaid as service to indigent persons. It projects 265 caths in the first year of operation with approval to serve patients admitted to the hospital, and 320 in the second year. Half of these patients are projected to be inpatients and half outpatients. Consistency with statutory criteria Need in relation to the state health plan and the District X local plan, Section 381.705(1)(a), Florida Statutes The state health plan The need methodology found in the rule does show a need for one additional program. The certificate of need statute requires than an application be consistent with the state health plan. FMC exhibit 3 is the portion of the state health plan pertaining to diagnostic catheterization. It states four preferences. These preferences are used in ranking competing applications for inpatient cardiac catheterization services filed in the same batching cycle. The very title of "preferences" shows that they are not minimum criteria which an applicant must meet. The first is that preference should be given to an applicant which provides both cardiac catheterization and open heart surgical services, but as the plan acknowledges, [s]ince 1983, Florida has permitted hospitals to perform diagnostic cardiac catheterization without an open heart surgery program, but they must have an open heart surgery program to perform therapeutic cardiac catheterization procedures. In Florida, 23 hospitals now have cardiac catheterization programs without an open heart surgery program and six of these have been approved for open heart surgery programs. (State Health Plan at 69.) The second preference is to establish new catheterization programs in counties where catheterization is unavailable. This is inapplicable to Broward County, where catheterization is available at nine hospitals according to Table 19 of the State Health Plan. Applications filed by hospitals with a history of providing a disproportionate share of charity care and Medicaid patient days are to receive preference. Since there are no competing applications, this preference is irrelevant. The fourth preference is that applicants who agree to provide services without regard to the patient's ability to pay should be approved. This preference is, likewise, inapplicable, because there is no competing application. The district health plan The District X comprehensive health plan for 1990 was the most recent plan in effect when Humana Cypress filed its application. Like the State Health Plan, it contains preferences. The first preference is similar to the fourth preference in the state health plan, and looks more favorably on applications which reflect a willingness to serve people without regard to ability to pay. As with the state preference, it is not applicable here in the absence of a competing application. The second preference would give priority to applications proposing catheterization laboratories with existing open heart surgical capabilities, and it too is inapplicable because there is no competing applicant. Availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of existing services. Section 381.704(1)(b), Florida Statutes No party contends that existing hospital catheterization laboratories fail to provide high quality care in Broward County. Given the nine hospitals listed in the state health plan as approved to provide catheterization (State Health Plan Table 19 at page 63) there is no problem with geographic accessibility. The North Broward Hospital District hospitals, and the South Broward Hospital District through Memorial Hospital, provide most of the indigent care in the county. The approval of this application will not improve economic access to diagnostic catheterization in a significant way, for only a small number of Medicaid and indigent patients are likely to be served. See Finding 43 below. There is no persuasive evidence that the existing indigent care providers are over-utilized or in any other way inadequate. The same is true for the privately owned hospitals in Broward which serve predominantly paying patients. A catheterization laboratory has the capacity to provide about 1,200 cardiac catheterizations annually (260 workdays x 4.5 caths in one 8-hour shift). Among the nine providers there are 14 existing laboratories in the district (not counting the third backup laboratory at Holy Cross Hospital) so there is capacity in the current providers to perform 16,800 cardiac catheterizations. Eight thousand five hundred were performed in 1989. The relatively new catheterization service at a North Broward Hospital District facility, Imperial Point, provided 221 catheterizations in 1990, and North Broward Hospital provided 347. Both do have room for additional growth, but there is no persuasive evidence that disapproval of this application would have the effect of shifting any patients to those facilities. During the 12-month period the rule uses to calculate need. April 1989 to March 1990, 8,819 catheterizations were performed in District X. The rule projects a need for 9,452 catheterizations during the 1991 planning horizon year for this batching cycle. For the period April 1990 through March 1991, 10,200 caths were performed in District X and in the first quarter of 1991 3,300 caths were done, which, using straight line projections, would show a total of 13,200 in the year 1991, still well below the 16,800 which could be performed at existing laboratories. This growth in catheterizations may be due to the growth in therapeutic catheterizations, also known as angioplasties. Angioplasty is assigned DRG Code 112, while diagnostic catheterizations fall under DRGs 124 or 125. Hospitals report their procedures by DRG number to the Florida Health Care Cost Containment Board. The number of angioplasties increased in Broward County from 1,608 in 1988 to 2,097 in 1990, an increase of about 30 percent, but Humana Cypress would never be permitted to perform angioplasties unless it first received CON approval to operate an open heart surgery program, since on-site open heart surgery backup is necessary to provide angioplasties. Rule 10-5.032, Florida Administrative Code. The Health Care Cost Containment Board data for 1988-1990 show that inpatient diagnostic catheterizations have actually declined from 3,345 in 1988 to 1,949 in 1990. It appears that there is actually a declining demand for inpatient diagnostic catheterization. This is not surprising, because the Legislature deregulated outpatient services in 1987 and by 1988 many hospitals, including Humana Cypress, began to perform outpatient catheterizations. The population of Broward may be aging, and during the period from 1988 to 1990, the total number of inpatient cardiac discharges, which is a category much broader than cardiac catheterizations, has remained relatively constant. This indicates limited growth in the need for inpatient cardiac care services. There is no need to approve the application of Humana Cypress in order to expand the availability, accessibility or efficiency of inpatient cardiac catheterizations in Broward County, or to ameliorate any over-utilization or inadequacy of existing programs. Quality Care. Section 381.705(1)(c), Florida Statutes The current outpatient program at Humana Cypress provides high quality patient care. Because the outpatient catheterization laboratory at Humana Cypress is fully equipped, fully operational and fully staffed, no additional health care dollars need be spent to bring another inpatient provider into the health care delivery system. The more procedures a hospital does, the more proficient the staff becomes and patient outcomes improve. The outpatient lab performed 160 caths in the first six months of 1991, which would be 320 caths on an annualized bases, and still performed 80 other special (non catheterization) procedures. The volume is sufficient to insure quality care. There is no persuasive evidence that approval of this application would prevent the new program at Imperial Point from achieving the minimum volume of 300 caths per year within two years of beginning the service. The minimum volume is required to assure that high quality care is provided at each approved hospital. Alternative to diagnostic catheterization. Section 381.705(1)(d), Florida Statutes No non-invasive procedure serves as an alternative to diagnostic catheterization. The current practice of transferring patients admitted to Humana Cypress who need diagnostic catheterization to another hospital that has received CON approval for inpatient catheterization for the procedure, and returning them to Humana Cypress is wasteful. Necessary health manpower and management personnel, accessibility to district residents. Section 381.705(1)(h), Florida Statutes Humana Cypress has appropriate management and health care staff to operate the catheterization program as an inpatient program. The program is geographically accessible to all residents of Broward County. Probable impact of the proposed project on the cost of providing health services including the effects of competition and promotion of quality assurance and cost effectiveness. Section 381.705(1)(l), Florida Statutes Humana Cypress has a low occupancy rate. It has reduced ancillary services according the occupancy, and avoided staffing empty beds in an effort to control costs. Obviously the hospital would like to add inpatient cardiac catheterization to increase its occupancy levels so that it can spread its fixed costs over a larger patient base. In its application, Cypress projects that it will charge $8,875 for diagnostic catheterization, but at hearing a witness testified that the amount was in error, overstating the charge by $1,625, so that Cypress would probably have a list charge of approximately $7,250 for DRGs #124 or #125. It is extremely difficult to assess the significance of the difference, since almost no one pays any hospital's gross or list charges. Medicare patients are billed based upon what Medicare will pay if they qualify by age for Medicare. Most health insurers have negotiated fees with hospitals (i.e., the hospital becomes a "preferred provider" to the insurer's policyholders), at very substantial discounts below list charges. These are a hospital's "net charges." List charges are developed because they are the basis for Health Care Cost Containment Board regulation of hospital charges. The most that can be said of the evidence, taken together, is that Humana Cypress will probably charge approximately what the district wide average charges are for diagnostic catheterizations, a figure closer to the $8,875 found in the application, and that charge will have little effect upon price competition. There is little reason to believe that Humana Cypress will significantly undercut charges at other hospitals so that patients will prefer Humana Cypress and leave other providers or that by cutting list charges, it would attract significantly more patients. Most of its revenue will come from Medicare, Medicaid, Blue Cross and Humana Medical Plan, which will reimburse Humana Cypress on a fixed per diem basis without regard to the gross or list charge projected in the application. Financial feasibility. Section 381.705(1)(i), Florida Statutes FMC and the Department of Health and Rehabilitative Services stipulated that the project is financially feasible, except for the application's utilization projections. Given the negligible incremental costs of providing services currently performed for outpatients to hospital inpatients, the project is feasible. Humana Medical Plan HMO patients can be redirected with economic incentives away from non-Humana hospitals through plan provisions for co-payments or in other ways, and instead encouraged to use to Humana Hospital Cypress, which would be to the advantage of the parent company, Humana, Inc. The projection found in the application that 51 percent of the diagnostic catheterizations would be performed on patients subscribing to Humana Medical Plan is quite reasonable. It is likely that Humana Cypress will be able to perform 265 caths in its first year of operation and 320 in the second year. This project is financially feasible in the long and short term. The applicants' past and proposed provision of health care services to Medicaid patients and the medically indigent. Section 381.705(1)(n), Florida Statutes Humana Cypress has projected that five percent of its cardiac catheterization patients would be Medicaid patients and three percent would be charity care patients (Humana exhibit 5, attachment III.e.). Humana Cypress has never historically provided that amount of indigent care or Medicaid care through its existing outpatient cardiac catheterization laboratory. In 1989 no for-profit hospital in Broward County (including Humana Cypress or its sister hospital, Humana Bennett) reported any charity care to the Health Care Cost Containment Board. In 1990 Humana Cypress reported $175,111 of charity care to the Health Care Cost Containment Board, which equaled to two tenths of one percent of gross charges. Five percent of the inpatients receiving catheterization probably will not be Medicaid patients. Humana Cypress only recently became a Medicaid provider in September 1990. According to Health Care Cost Containment Board 1989 financial data for all hospitals in Broward County, the average of patient charges attributable to Medicaid patients was 1.6 percent of total charges, with Humana Cypress having provided one percent, and its sister Humana hospital, Humana Bennett, having provided only three tenths of one percent. The State Health Plan discloses that the percentage of Medicaid diagnostic cardiac catheterizations throughout Florida is just one percent. State Health Plan, page 63, figure 31. Data for Broward County are similar. The volume of Medicaid catheterizations is small because Medicaid population is not of a type which generally requires diagnostic cardiac catheterization. The two largest Medicaid groups are women of child bearing age, and the elderly, whose catheterization charges are covered by Medicare. District wide, a total of 12 Medicaid discharges were reported for DRSs #124 and #125. Assuming Humana Cypress meets its projected volume of 265 patients in year 1, five percent would equal 13 Medicaid patients. It is most unlikely that Humana Cypress will serve, in its first year, more Medicaid patients than all other district hospitals combined. Moreover, physician practice patterns in Broward County are such that physicians generally refer the indigent to the publicly funded and tax supported hospitals operated by the North Broward and South Broward Hospital Districts, not to for-profit hospitals such as Humana Cypress. But see, Finding 43, below. It is likely that Humana Cypress will provide no more than one percent of its diagnostic catheterization services to Medicaid patients. The indigent care policy for Humana Cypress, found in Humana exhibit 3, is that it "does not refuse emergency care to any person based on his or her ability to pay. Humana Hospital Cypress' policy is to treat every emergency patient upon their arrival at the hospital, and to not withhold any needed service because an individual lacks the financial resources to pay for needed care." (Humana exhibit 3, page 22) This policy contains no specific commitment to indigent care. It focuses on people who present themselves at the emergency room. Most of the indigent care provided is provided through the emergency room. Diagnostic catheterizations are most often scheduled elective procedures, and not emergency procedures, so as a practical matter they would not fall under the hospital's indigent care policy. Humana Cypress has affiliated with the East Broward Medical Foundation, a not-for-profit entity made up of physicians and health care providers. Primary care physicians are part of this network and these physicians do make referrals to specialists, such as cardiologists who perform diagnostic catheterizations. Participation by Humana Cypress in this network does indicate an attempt to break existing practice patterns and to increase indigent care. The physician committee at Humana Cypress has agreed to serve indigents referred by the Foundation. Nonetheless, this relationship has not matured to the point that it is reasonable to project three percent indigent care and five percent Medicaid care would be reached in the inpatient cardiac catheterization program or in the total program, including outpatients. While Humana Cypress will achieve 265 patients in year 1 and 320 patients in year 2, half of whom will be inpatients, the projected levels of service to indigent and Medicaid patients are unlikely to be achieved. It is more likely than not that only one percent of the catheterizations will be performed on Medicaid patients and another one percent on indigents. This weighs only slightly in favor of the application. H. Whether there are less costly, more efficient or appropriate alternatives to the proposal made in the application. Section 381.705(2)(a), Florida Statutes In general, Humana operates Humana Cypress at a 40 percent occupancy rate. To compensate for this low rate of occupancy, hospital management has down-sized ancillary services so that, if one ignores the unused potential for additional occupancy at the facility, Humana Cypress can be said to operate efficiently. It had the lowest cost per adjusted admission of any hospital in the county for 1989 and for 1990, the last years for which data was available. In 1990 its cost per adjusted admission was $3,829. Humana Cypress does not project that patients admitted to the hospital for catheterizations falling under DRG Codes 124 and 125 would pay only that average cost per adjusted admission. Rather, it projects that the cost for inpatients would be $8,875 (See Finding 34), which is below the charges for many other Broward hospitals (this is based on 1989-90 data and inflated forward to 1991 to be consistent with the bases on which Humana Cypress' projection of its costs were made). The costs for DRGs 124 and 125 at North Ridge Medical Center would be $10,293; at Broward General Hospital $10,497; at Plantation General Hospital $10,814; at Memorial Hospital of Hollywood $9,209; at North Broward Medical Center $9,938; and at Humana Hospital Bennett $10,797. Imperial Point Medical Center would have an average charge below that of Humana Cypress ($7,367) as would Holy Cross Hospital ($7,033). Imperial Point's catheterization laboratory is relatively new and has excess capacity. As a result, the most efficient alternative to providing diagnostic catheterization at Humana Cypress would be to attempt to shift those patients to a lower volume, but efficient provider, Imperial Point. There is no way to force candidates for catheterization to Imperial Point, however. Humana can attempt to shift its own HMO patients to Humana hospitals by its pricing policies, e.g., co-payment and PPO arrangements with non-Humana hospitals can encourage subscribers to use Humana hospitals. Humana argues that approval for its application would promote price competition and increase patient choice (Cypress Recommended Order, page 20, paragraph 70). There is generally little price competition for catheterization, see Finding 34, above. Moreover, of the eight group IV hospitals (hospitals which generally have a similar mix of intensity of illness of their patients, whose costs therefore are roughly comparable according to the HCCCB), Humana owns four of these eight hospitals. It is difficult to understand what incentive Humana has to promote price competition among the four hospitals it owns. The competition argument is not nearly so persuasive as it would be if all hospitals were independently owned and had reason to compete against each other on price, but there will be some price competition among the remaining four facilities. Whether existing inpatient facilities are being used in an appropriate and efficient manner. Section 381.705(2)(b), Florida Statutes There is no persuasive evidence that existing inpatient facilities are being used in an inappropriate manner or that they are operating inefficiently. Obviously, with a new program, Imperial Point Medical Center has the ability to grow and, as pointed out above, it is a very cost efficient provider. But that is not quite what this statutory criteria focuses upon. At best, this factor is neutral, because there are no existing providers that are operating inefficiently or inappropriately. The fixed need pool challenge filed by FMC. Florida Medical Center has challenged the calculation of the fixed need pool published on August 10, 1990, because the rule upon which the calculation had been based was determined to be invalid in the case of Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 351 (Fla. 1st DCA 1991). It has not challenged the revised mathematical calculation which shows the need for one additional catheterization program in District X, which the Department published on September 7, 1990. It is the position of Florida Medical Center in the proposed order that: At the time the Department published its fixed need pool, there was no valid cardiac catheterization rule; therefore, whatever methodology was used to produce the pool is invalid. (Proposed Recommended Order of Florida Medical Center, Conclusions of Law at 22). This is different from the position expressed by Florida Medical Center in the prehearing stipulation, which states its challenge in this way: Florida Medical Center believes that the rule we should be litigating under is the rule published by the Department of Health and Rehabilitative Services in the July 5, 1991, issue of the Florida Administrative Weekly, with the exception of the two sentences, listed below, which were contained in the original publication. The Court held that those two sentences could not be modified as HRS attempted to modify them, without a new point of entry. These sentences FMC contended should be excised from the rule read: Departmental Intent . . . It is the intent of the Department to allocate the projected growth and the number of cardiac catheterization admissions to new providers regardless of the ability of existing providers to absorb the projected need. and 8. Need Determination. In order to assure patient safety and staff efficiency, to prevent the unnecessary duplication of services, to foster competition among providers, and to achieve maximum economic use of existing resources, the following criteria shall be considered in the approval of certificate of need applications for new adult cardiac catheterization programs. . . . (Original language struck through, added language underlined.) The Court of Appeal held that the amendments made in the rule by the language quoted above were procedurally irregular, and so invalidated those changes. The Department corrected its procedural error by republishing amendments to the catheterization rule in the July 5, 1991, edition of the Florida Administrative Weekly. It deleted the language regarding fostering competition which had been disapproved by the appellate court, but did not reinsert the original language regarding "unnecessary duplication of services." Florida Medical Center had argued that those words must be read into the Department's rule as a matter of law. This argument is unpersuasive on the issue of the size of the fixed need pool for the batching cycle. The major significance of the rule is the mathematical computation of need, which was not challenged in the prehearing stipulation and is not affected by the two sentences FMC challenged. Based on the unchallenged portion of the rule, there is a mathematical need for one additional inpatient diagnostic catheterization program in District X (Broward County). The fixed need pool the Department published in its September 7, 1990, revision is correct.
Recommendation It is recommended that the application of Humana Hospital Cypress for approval of a certificate of need to offer inpatient diagnostic cardiac catheterization be granted, with the condition that it be required to meet the projections for providing service to Medicaid and indigent persons made by Humana Cypress in its application, and that the challenge filed by Florida Medical Center to the revised fixed need pool calculation for the batching cycle, showing a need for one additional inpatient diagnostic catheterization program be dismissed. RECOMMENDED in Tallahassee, Leon County, Florida, this 31st day of July 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-6251 AND 91-1612 Rulings on findings proposed by Human Cypress. 1-4. Adopted in preliminary statement. 5 & 6. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 8. Adopted in Finding 3. Adopted in Findings 4 and 5. Adopted in Findings 6 and 8. Adopted in Findings 6 and 8. Adopted in Finding 8. Adopted in Findings 8 and 16. Adopted in Finding 7. Adopted in Finding 15. Rejected for the reasons stated in the Conclusion of Law 14. See also Finding of Fact 15. Adopted in Finding 15. Adopted in Finding 17. Rejected as subordinate to Finding 16. Rejected as unnecessary. Adopted in Finding 18. Rejected as redundant to Finding 18. Rejected as unnecessary. Rejected as unnecessary. 26 & 27. Adopted in Finding 24. 28 & 29. Rejected as unnecessary. The entire county is the unit of analysis, not east and west halves. See also Finding 27. First sentence rejected as unnecessary. Second rejected as subordinate to Finding 8. Sentence three rejected as unnecessary. Sentence four rejected as unnecessary, as no party has challenged the quality of care at Humana Cypress. Sentence five adopted in Finding 33. Rejected as subordinate to Finding 9. Adopted in Finding 31. 33 & 34. Generally adopted in Finding 31. 35 & 36. Rejected as unnecessary. 37-39. Generally rejected as unnecessary. The version of the rule Humana Cypress relies upon was invalidated by the Court of Appeal. Department of Health and Rehabilitative Services v. Florida Medical Center, 578 So.2d 351, 353 (Fla. 1st DCA 1991). 40-42. Generally rejected as argument. The testimony of Dr. Luke was not persuasive on the growth issue. 43. Generally discussed in Finding 18. Diagnostic catheterization programs are not limited to facilities which provide open heart surgery, and therapeutic catheterization. 44-46. The persuasive testimony is adopted in Finding 27. It is likely that diagnostic catheterization has decreased as outpatient diagnostic catheterization has become available. 47-51. Generally rejected as subordinate to Finding 6. There is no serious architectural problem with the application submitted by Humana Cypress. The Department was able to evaluate it. Adopted in Finding 3. Generally adopted in Finding 6. The lack of mortalities is irrelevant. Quality of care is not at issue. 54 & 55. Rejected as unnecessary. Quality of care is not at issue. 56. Adopted in Findings 7 and 16. 57 & 58. Generally rejected as subordinate to the finding of wastefulness. See Finding 31. 59-60. Rejected as unnecessary. 61. See Findings 6-9 and 31. 62-64. Generally adopted in Findings 33 and 44. 65-67. Generally adopted in Finding 34. The assertion that few patients pay full charges is adopted in Finding 34. What Humana Cypress will actually receive will depend on what it negotiates, and is quite difficult to project Adopted in Finding 34. Generally rejected for the reasons stated in Finding 45, though there will be some price competition. 71 & 72. Generally adopted in Finding 44. 73 & 74. Adopted in Findings 17 and 35. Implicit in Findings 6 and 8. Rejected as unnecessary. Adopted in Findings 5 and 35. Rejected as unnecessary. Rejected because economic access is a major issue in CON review, not withstanding a low utilization rate for catheterization by Medicaid or indigent patients. Adopted in Finding 38. Subordinate to Finding 38. Adopted in Finding 39. Rejected as unnecessary; it was Humana Cypress who based the application the projections of five percent Medicaid and three percent indigent or charity care. Adopted in Finding 38. There is little reason to believe that the total hospital experience of five percent Medicaid would be reflected in diagnostic catheterization, however, as Humana Cypress did in its application. Rejected for the reasons stated in Findings 41-43. Sentence adopted in Finding 36. Sentence two rejected because Humana Cypress has not provided five percent Medicaid and three percent indigent care for catheterization inpatients. Sentence three, if true, will cause Humana Cypress to accept the condition proposed for its certificate of need. Adopted in Finding 43. Generally adopted in Finding 43. Rejected as argument. 90-94. Generally adopted in Findings 18-21. 95 & 96. Rejected as unnecessary. 97-99. Adopted in Finding 22. 100-103. Rejected as unnecessary. 104. See the discussion in Findings 36-43. 105. Adopted in Finding 3. 106. Adopted in Finding 8. 107. Adopted in Finding 16. 108. Rejected as unnecessary. 109. Accepted in Finding 34. 110-117. Generally rejected. There will be some adverse impact on FMC, but not a sufficient impact that it will impair the quality of care at FMC. Rulings on findings proposed by the FMC. Adopted in Finding 10. Rejected as unnecessary, the quality of care at Broward providers is not an issue. Adopted in Finding 10. First sentence adopted in Finding 11. The remainder is rejected as unnecessary. Adopted in Finding 12. Adopted in Finding 13, but it is difficult to make any projections for revenue declines based on the experience of one month (i.e., June). Adopted in Finding 13. Adopted in Finding 14. 9-11. Adopted in Findings 1, 8 and 9. Adopted in Finding 22. Rejected as unnecessary. Sentence one adopted in Finding 3. The architectural specifications are adequate, so sentence two is rejected. Adopted in Finding 36. Adopted in Finding 37. Adopted in Finding 38. Adopted in Finding 38, although the finding with respect to Bennett is rejected as unnecessary. Adopted in Finding 38. Adopted in Finding 39. Adopted in Finding 43. Rejected as unnecessary, see also Finding 39. Adopted in Findings 39 and 40. Adopted in Finding 41. Adopted in Finding 42. Adopted in Finding 42. Rejected as unnecessary. Rejected because there is no persuasive evidence that approval of the Humana Cypress application will drive any existing or indigent care provider below 300 catheterizations per year, a level required for quality care. Imperial Point did not feel sufficiently threatened to intervene in this proceeding, which is significant to me. Rejected as unnecessary. See prior ruling. Rejected for the reasons given for rejected proposed finding 28. See also Finding 44. Rejected as unnecessary, this application has been "carefully evaluated." Rejected as unnecessary. Adopted in Findings 25 and 26. Adopted in Finding 27. Generally adopted in Finding 27. Adopted in Finding 27. Rejected as unnecessary, the inquiry is not limited to the Cypress service area. Generally adopted in Finding 28. Adopted in Finding 23. Rejected because the application has not been evaluated on the basis of Cypress' location in a "medically underserved area." Adopted in Finding 1. Adopted in Finding 28. Service to indigents is covered in Findings 41-43. Adopted in Finding 23. Rejected because the service area of Cypress is not the unit of analysis, but see Finding 23. Adopted in Finding 34. Generally adopted in Finding 34. Generally discussed in Finding 34. For the most part, gross charges are not significant in CON regulation. Because they are not the basis of a hospital's income. 49-53. Rejected because the indigent care providers did not participate in this case, which gives rise to the inference that they do not feel the need for protection from additional competition by Humana Cypress. Rejected because there is no reason to believe that denial of this application would have the affect of forcing additional patients to Imperial Point. Rejected for the reasons stated in Findings 33 and 44. Rejected for the reasons stated in Findings 33 and 44. Discussed in Finding 45. Rejected because there is insufficient reason to believe that the experience at Humana Bennett will be replicated at Cypress. Even if it is, the constraints on prices because few, if any, patients pay gross charges will keep the price from rising much above the district average. Rejected because the public providers have not objected to the certificate of need, and therefore it is not clear that they require protection for competition by Humana Cypress. Rejected as redundant. Rejected because there is no reason to believe that rejection of this application will force any patients to use the hospitals which are indigent care providers. Rejected because it is not necessary for Cypress to show that specific patients are going without cardiac catheterization in order to have its application approved. Rejected because, on balance, the criteria tilt in favor of granting the application. Rulings on findings proposed by the Department. Adopted in Finding 14. Adopted in Finding 1. Adopted in Finding 8. 4 & 5. Generally adopted in Finding 8. 6 & 7. Generally adopted in Findings 10 and 11. 8 & 9. Discussed in Findings 18-21. Discussed in Finding 25. Adopted in 1, but the finding of adverse impact on Imperial Point is rejected. Imperial Point did not seek to intervene to protect its program from additional competition. Discussed in Finding 23. Rejected, the HCCCB data in Finding 27 is more relevant. Rejected because inpatient caths declined, due to the availability of outpatient services. Adopted in Findings 6 and 25. Rejected as unnecessary. This fact is only significant when coupled with the new availability of outpatient caths. Adopted in Finding 26. Adopted in Finding 28. Adopted in Finding 27. Rejected because the unit of analysis is the District (Broward County) as a whole. Adopted in Finding 22. Adopted in Finding 41. Adopted in Finding 42. 24 & 25. Adopted in Finding 23. 26 & 27. Adopted in Finding 30. Rejected, see Finding 35. Rejected. This laundry list of factors is unhelpful. Rejected. While there is no single accepted means to project need, the projection methods advocated by Cypress were reasonable. Rejected. The number of caths in the outpatient program has been limited because inpatients cannot be cathed at Cypress. The HMP patients projected are very likely to come to Cypress, and the additional patients (other than Medicaid and indigent) are reasonable projections. Adopted in Finding 6. Rejected. See Finding 6. Generally adopted in Finding 28. Generally adopted in Finding 27. Rejected as unnecessary, but see Finding 10. Adopted in Findings 37 and 38. See Finding 38, based on changes, rather than on patient days. See Finding 37. The District average is large because so many Broward hospitals are tax-supported ones operated by the North or South Broward Hospital districts. 41-43. Rejected as unnecessary. Cross subsidizations for tax supported hospitals is not something the CON law specifically projects. Rejected as unnecessary. Adopted in Finding 15. Rejected, see Finding 44. Rejected. It is not rational to assume costs across hospitals will be the same. This is a matter of proof, not assumption. Adopted in Finding 40, but sentence two is rejected. Rejected as unnecessary. Rejected because rejection of this application will not "force" patients to "lower cost" procedures. Adopted in Finding 23. 52 & 53. Implicit in Finding 28. 54. First three sentences implicit in Finding 28. Last sentence rejected as unsupported by convincing evidence. COPIES FURNISHED: James C. Hauser, Esquire Suite 701 215 South Monroe Street Post Office Box 1876 Tallahassee, Florida 32302-1876 Lesley Mendelson Assistant General Counsel Department of Health and Rehabilitative Services Suite 103 2727 Mahan Drive Tallahassee, Florida 32308 Eric B. Tilton, Esquire 241-B East Virginia Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 IJ, 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 $2,500,00. 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 3. Conditional licensure status is imposed on the Respondent beginning on March 3, 2011 and ending on April 1, 2011. Filed November 29, 2011 11:03 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 25 day of WN. Berber , 2011. 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 copy of this Final Order was served on the below-named persons by the method designated on this Ze tay of Lake Ae fa , 2011. SS : = lerk Richard Shoop, Age 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) Mary Daley Jacobs Anna Small Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Attorney for the Respondent LaVie Care Centers 10210 Highland Manor Drive, Suite 250 Tampa, Florida 33610 (U.S. Mail) Claude B. Arrington Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Should Petitioner revoke or impose other discipline against Respondent's child care facility license? More specifically should action be taken against the license for Respondent's knowingly allowing persons who had not undergone Level 2 screening in accordance with Section 435.04, Florida Statutes, to either work in, volunteer in, or be present in the licensed facility or to reside in the residence of Marie McCracken adjacent to the facility, all in a setting in which one of those persons as a part of "child care personnel" would be disqualified to work in the facility under terms set forth in the screening process? See Section 402.310, Florida Statutes.
Findings Of Fact Petitioner in accordance with Section 402.305, Florida Statutes, licenses child care facilities to provide child care in Florida. Respondent holds a child care facility license to operate Pine Ridge Day Care in Duval County, Florida. Respondent has two adult sons, Keith McCracken and Ohlan McCracken who were adults at times relevant to the inquiry. Walter J. Giannone, Family Services Counselor for Petitioner, received a complaint on July 23, 1998, in relation to circumstances in Respondent's child care facility. The complaint was in relation to the attendance at the facility by Respondent's two adult sons. Mr. Giannone investigated the complaint on July 28, 1998. To conduct his investigation Mr. Giannone went to Respondent's licensed premises. While there he spoke to Ms. McCracken and asked her about her sons being present at the facility. Ms. McCracken denied that her sons were ever present at the facility. Several other staff members at the facility gave statements that were in accordance with Ms. McCracken's explanation that the sons were never at the center. By virtue of the visit, Mr. Giannone did not confirm the presence of Respondent's sons at the facility. Mr. Giannone received another complaint concerning Respondent's child care facility on October 22, 1998, that Respondent's adult sons were working with children at the facility. That complainant wanted to know if those adult sons had been screened. The complainant indicated to Mr. Giannone that the sons were there "all the time." In relation to the complaint made on October 22, 1998, Mr. Giannone went to the facility on October 28, 1998, to investigate. He spoke to Ms. McCracken. Ms. McCracken told Mr. Giannone that her sons stopped by the facility at various times of the day. However, Ms. McCracken told Mr. Giannone that the sons did not provide care to the children. To that date, Ms. McCracken realized that the sons had not been required to undergo the screening requirements of Section 435.04, Florida Statutes, as "child care personnel," as defined at Section 402.302(3), Florida Statutes. Following a discussion about the advisability of screening the two adult sons, in which Mr. Giannone recommended that both sons be screened to avoid any concerns about the propriety of their attendance at the facility, Mr. Giannone left Ms. McCracken background screening forms to be executed by her two adult sons. This arrangement was also made in consideration of the possibility that the sons could serve as substitute personnel at the facility when regular employees were absent. On this visit Mr. Giannone also determined that Ohlan McCracken was living with Respondent on property that was adjacent to the child care facility. On November 2, 1998. Mr. Giannone received another complaint concerning Respondent's child care facility. It was reported that Keith McCracken had lived in a bathroom in the child care facility for over a year, with a sign posted on the bathroom door that said "out of service." This complainant also stated that Ohlan McCracken lived next door to the facility and that both McCracken men took care of children at the facility without undergoing screening. This allegation was investigated by Mr. Giannone on November 3, 1998, during which Mr. Giannone made an inspection of the facility. In particular, he examined the bathroom that had been described by the complainant and found no evidence that anyone was living in the bathroom. He found the bathroom to be clean and stocked with supplies. Mr. Giannone made this discovery after Ms. McCracken told Mr. Giannone that Keith McCracken did not live in the bathroom. In this visit Ms. McCracken told Mr. Giannone that both of her sons lived next door to the facility. While Mr. Giannone was at the facility on this date, Keith McCracken was summoned by pager and came to the facility within 5 minutes. On November 2, 1998, within 5 minutes of the time the aforementioned complaint was made, a second complaint was received from a different person. The second complainant indicated that she had been using the facility for the past year for child care and had observed both McCracken sons caring for children at the facility. In reference to that complaint, when Mr. Giannone made his investigation on November 3, 1998, he observed Ohlan McCracken at the center around nap time helping- out with child care. Ms. McCracken acknowledged that Ohlan McCracken worked on that date and the day before to assist Ms. McCracken in the attempt to stay within the ratio of staff- to-children called for by licensure requirements. Before Mr. Giannone left the facility on November 3, 1998, he collected the completed screening forms that had been executed by Keith McCracken and Ohlan McCracken. It was later revealed that Ohlan McCracken was disqualified from working in a position of trust or responsibility to provide "child care" by virtue of his commission of the offence of auto theft, pursuant to an arrest in Duval County, Florida, on December 31, 1996. The disqualification for that type of offense is related to Chapter 812, Florida Statutes, as referred to under the screening provisions of Section 435.04(2)(r), Florida Statutes. Ms. McCracken was made aware of the discovery that Ohlan McCracken was disqualified to work in "child care" following the screening. With this revelation, Ms. McCracken left Mr. Giannone with the impression that she was previously aware that Ohlan McCracken had a record but the nature of the record pertained to a juvenile offense. Following the notice of disqualification, Petitioner, in the person of Mr. Giannone, has no knowledge that Ohlan McCracken has returned to Respondent's child care facility. Ms. Laura Thomas had children who were cared for at Respondent's child care facility. Dates upon which the children received care began in March 1995 and continued into October 1998, for at least one of her children. While her children were present, Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for children at the facility on a consistent basis for about two years. Specific care observed by Ms. Thomas involved Ohlan McCracken giving a bottle to Ms. Thomas' infant son on many occasions. Ms. Thomas observed her daughter playing with Keith McCracken many times. Ms. Thomas observed Ohlan McCracken and Keith McCracken providing lunches for the children at the facility. Ms. Thomas observed Keith McCracken and Ohlan McCracken caring for the children at the close of the day while the children were waiting to be picked up by their parents. Ms. Thomas had been in the facility at various times between 6:30 a.m. and 6:00 p.m. and observed Keith McCracken and Ohlan McCracken participating in child care. Maurice W. Murray, Family Services Counselor Supervisor for Petitioner, has had experience with Respondent and her Pine Ridge Day Care. Although Mr. Murray does not consider Respondent's child care facility to be a "problem center," he has observed inadequacies in the facility in the past. One of his observations had to do with the fact that Ms. McCracken "was not real good with keeping up with her background screening timely." In particular, a background screening warning letter had been issued on April 3, 1996, with respect to an employee at Respondent's child care facility. Mr. Murray also had discussion with Ms. McCracken about the condition of playground equipment being in disrepair. While on the playground performing an inspection, Mr. Murray observed Ohlan McCracken on the playground at the facility. Mr. Murray asked Ms. McCracken, "Who's he?" Ms. McCracken replied "that's my son, Ohlan." Mr. Murray stated, "Well, you know, if he is going to be here, he needs to be background screened." To emphasize the point, Mr. Murray wrote in his supplemental inspection report for that day the details of this conversation. Finally, concerning the performance of the facility, Mr. Murray made one other reference to a background screening issue aside from the experience that Mr. Giannone related as has been reported in the fact-finding. In her testimony at hearing Ms. McCracken acknowledged that her sons had helped out at the facility whenever she was "shorthanded." Ms. McCracken acknowledged telling Mr. Murray that her sons were there at the facility a lot but she demurs that she is their mother and their presence at the facility should not be unexpected. Further, Ms. McCracken testified that she did not see anything wrong with her sons giving children their snacks if the sons were at the facility. Ms. McCracken never observed Ohlan giving bottles to Ms. Thomas' son. Ms. McCracken acknowledged that her sons played with the children on the playground but not on a regular basis. Ms. McCracken established that her sons are not regular employees who have been hired and paid to provide child care at the facility. Ms. McCracken identified that on the date that Mr. Murray saw Ohlan McCracken on the playground, Ohlan McCracken was not living at the residence adjacent to the facility. As Ms. McCracken established, at the time that Ohlan McCracken was observed on the playground by Mr. Murray, he was not there for the purposes of assisting in child care. As established by Ms. McCracken, Ohlan McCracken moved back to the residence adjacent to the facility in the latter part of 1997. At times relevant to the inquiry, it can reasonably be inferred that Respondent was aware of the participation of Keith McCracken and Ohlan McCracken in providing child care at Respondent's licensed facility. As Ms. McCracken described it, she was aware that Ohlan McCracken had been trouble for "taking a car" before the results of the screening were made known to her. She did not realize that the offense was a felony. Ms. McCracken established in her testimony that Ohlan McCracken has not returned to the facility following the disclosure through the screening results that Ohlan McCracken was disqualified from serving as "child care personnel." Ohlan McCracken continues to live with Respondent at the residence adjacent to the facility beyond the point in time during which Respondent had been charged with violations in accordance with the December 2, 1998 charging document. Concerning the past license history, Ms. McCracken acknowledges an incident in 1981 in which the facility had a problem with rendering care for "too many children."
Recommendation Upon consideration of the violations and the standards for imposition for discipline, it is RECOMMENDED: That a final order be entered finding the Respondent knowingly allowed unscreened personnel, her sons, to work in the child care facility, in a setting where Respondent knew that those persons should have been screened before working in the child care facility, in which one of those persons was disqualified from working in the facility, and suspending the license for the child care facility for 30 days. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 28th day of May, 1999. COPIES FURNISHED: Gene T. Moss, Esquire Moss and Andrews 337 East Bay Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office 2417 Jacksonville, Florida 32231 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
