Findings Of Fact The Department of Health, Board of Pharmacy, pursuant to Chapter 465.004, Florida Statutes, has authority to adopt rules pursuant to Sections 120.536(1) and 120.54, Florida Statutes, and to implement the provisions of Chapter 465, Florida Statutes, conferring duties upon the Board. At all times material hereto, Albert F. Williams was the holder of pharmacist license No. 0008425 issued by the State of Florida, Board of Pharmacy, and was also licensed as a consulting pharmacist.1 At all times material hereto, Stich Pharmacy, d/b/a Skycrest Pharmacy (Skycrest) was the holder of Pharmacy license No. 0012143, issued in 1950 by the State of Florida, Board of Pharmacy, for operation of a community pharmacy.2 By reference, the six statements of facts above listed in the preliminary statement and stipulated to by the Petitioner and Respondent are incorporated herein. At all times material hereto, Albert F. Williams was the sole owner of Skycrest Pharmacy and was employed by Skycrest as its prescription department manager. As pharmacy manager, Albert Williams knew from previous experience that he was the person responsible for compliance by all Skycrest employees, including pharmacist, trainees, pharmacist-technicians, and delivery person, with Florida Statutes, administrative rules, and federal regulations governing pharmacy and pharmaceuticals in the operation of a community pharmacy business servicing both institutional and public clients, to include, but not limited to, maintaining all drug records and providing for the security of the prescription department. At all times material hereto, Skycrest, a community pharmacy, filled and refilled prescriptions received from nursing homes, refilled prescriptions received from Assisted Living Facilities (hereinafter ALFs) and refilled prescriptions received from the general public as walk-in clients. At all times material hereto, Skycrest accepted the return of previously dispensed pharmaceuticals contained in vials and contained in cassettes, from numerous nursing homes, from numerous ALFs, and from persons who represented themselves to Skycrest employees as "family" or "caretakers" of persons residing in various nursing homes or residing in various ALFs. At all times material hereto, Skycrest took back cassettes containing previously dispensed inpatient medications. Skycrest redispensed medications and returned both previously dispensed medications and redispensed medications in cassettes to residents in nursing homes and ALFs. The prescription labels on the bottom of incoming cassettes were not changed to reflect redispensing of additional medications prior to those cassettes being redelivered to the respective nursing homes and ALFs. At all times material hereto, Skycrest employed a driver, who every seventh or eighth day, picked up Opus system3 cassettes from various nursing homes and ALFs. These cassettes were returned to Skycrest, whereupon empty and partially used unit dose compartments would be refilled with redispensed medications. Redispensed and unused previously dispensed medications were then returned to the respective nursing homes and ALFs in the refilled and redispensed Opus system cassettes. At all times, material hereto, Albert Williams, admittedly directed the business of the Skycrest pharmacy department to accept "returned previously dispensed mediations, not given to patients nor paid for by the nursing homes or ALFs, because such medications are owned by Skycrest; that additional redispensed medications were also owned by Skycrest until nursing homes and ALFs made monthly payment for the medications given to their patients, and that all payments to Skycrest from various nursing homes and ALFs were to be computed from and based upon the Medical Administration Records4 (herein after MAR) maintained by Skycrest and maintained at each nursing home and each ALF serviced by Skycrest." At all times material hereto, Skycrest received and accepted controlled substance medications in vials brought in by "caretakers" and/or "family" members of residents living in nursing homes and ALFs; took controlled substance medications from returned vials, added controlled substance medication to the returned controlled substance medication taken from the vials and thereafter redispensed controlled substance medication in the Opus system cassettes to licensed nursing homes and licensed ALFs. Mr. Alfred Williams, as pharmacy manager of Skycrest, operated the pharmacy on his belief that the law provided that Skycrest could take back medications, and those medications previously dispensed but not ingested could be redispensed. Mr. Williams acted on his belief that the law was written because many pharmacies were taking back previously dispensed medications and redispensing, and that the law was aimed to help reduce the burden of expense on patients' families. Mr. Williamss admitted that he does not know whether or not the law upon which he operated Skycrest and relied upon applied to institutional pharmacies only and not to community pharmacies servicing ALFs and nursing homes. Petitioner does not contest the fact that the Board of Pharmacy has approved the Opus cassette system as an acceptable closed unit dose system when employed in accordance with applicable rules. The expiration dates for medications found in Skycrest pharmacy are written on the containers in which the pharmacy received the medication from a pharmaceutical wholesaler. At all times material hereto, Skycrest would accept vials of outdated, returned controlled medication and would keep those vials for an undetermined length of time in a box for disposal; or should a customer or caretaker come back and ask for his/her vials, they were returned to those customers. Mr. Alfred Williams did not keep a separate record of the date each vial was returned to the pharmacy; to ascertain a return date Mr. Williams would refer to Skycrest's copy of the MARs. At all times material hereto, Mr. Alfred Williams knew that when dispensing controlled substance medications, the dispensing pharmacist must instruct the recipient of the controlled substance that if it is not used by the patient, that it has to be destroyed at that location. The returned vials of dated controlled medication would be kept by Skycrest for a year after return for either use by the customer or ultimate disposal by Skycrest. Mr. Alfred William admitted that the destruction of controlled substance medications at the patient's location did not occur in the Opus unit dose system which he, as manager of Skycrest pharmacy department, instituted and continued in the exchange every seven days, resulting in returned controlled substance medication ending up in possession of Skycrest pharmacy department after having been redispensed. Mr. Williams' response to allegation (b) of the complaint, was that his pharmacy, following the accepted standard of practice in the pharmacy profession, when confronted with prescriptions without dates, would call the prescribing physician's office to confirm missing dates (and other needed information, if any) and the information provided was entered into Skycrest's computer system. With "missing date" information from the face of the prescription, but contained in Skycrest's computer system, compliance with the purpose and intent of the rule is accomplished. On or about March 31, 1998, agency employees, William Herbert, investigator; Wayne Rowe, investigator trainee; and Dennis Force, photographer, conducted an unannounced inspection of Skycrest pharmacy. During the investigation, the investigators made observations of vials containing legend medications and controlled substance medications on active dispensing shelves. Petitioner's Exhibit No. 4 contains the name of the medication, prescription number and dispensed date of cassettes with Skycrest pharmacy labels; medication in vials from various Walgreen pharmacies, medication in cassettes with labels from other than Skycrest pharmacy, and unit dose pre- packaged medications from various pharmacies. Exhibit No. 5 is comprised of photos of cassettes containing medications assigned to various ALFs with each ALF's name taped on the bottom of each active shelf. Exhibit No. 6 is comprised of two original prescriptions and one prescription from Dental Emergency Room, PA,. Based on experience as an agency field investigator, William Herbert professed familiarity with pharmacy licensing requirements and with Chapters 499 and Chapter 893, Florida Statutes, regarding controlled substance and adulterated pharmaceuticals and medicines. His uncontroverted testimony was that only three ALFs in Pasco, Pinellas, and Hernando counties are licensed to have on-site pharmacies and a consulting pharmacist, which permits resident patients of those facilities to return scheduled medications back to the dispensing on-site pharmacy for redispensing.5 Skycrest, a community licensed pharmacy, is limited in its business to dispensing medications to patients on a carry- out basis and can dispense to patients who are housed in short- term or long-term facilities only when each prescription is patient specific. The ALFs and nursing homes, which were serviced by Skycrest via redispensing medication through the Opus unit dose closed system did not have a class I nor II institutional pharmacy license. Accordingly, neither resident patients of those not-licensed-institutions nor the institutions themselves were authorized by statute to return unused medications to non- resident pharmacies, including Skycrest, for redispensing. Notwithstanding the classification of licensure held, institutional class I or class II, neither the nursing homes nor the ALFs are permitted to return controlled substance medication to a dispensing pharmacy for destruction under existing US Drug Enforcement Agency (DEA) rules. Mr. Williams testified that the DEA 222 form is in triplicate. He explained that the one copy taken from his pharmacy by the investigator was incomplete because the controlled substance ordered from the pharmaceutical distributor (one copy sent with order) had not been either shipped by the distributor and/or received by Skycrest at that time. The testimony was that when controlled substances are ordered from distributors one copy of the DEA 222 accompanies that order. Second, when controlled substances are received from distributors, the recipient pharmacy completes the remaining two copies by inserting the date shipment received, source, kind, and quality of materials received. One completed copy of the DEA 222 form is returned to the distributor, and one completed copy is attached to the order and retained by the pharmacy as required by the rule. No evidence was introduced by Petitioner to contradict or challenge Mr. Williams' testimony regarding this system of dating DEA 222 form. Skycrest accepted returned vials containing controlled substance medications and cassettes containing controlled substance and legend medications from non-institutional licensed ALFs and non-institutional licensed nursing homes neither of which had an on-site pharmacy or employed a licensed consulting pharmacist manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Pharmacy, enter a final order of dismissal with prejudice the complaint herein filed against Mr. Albert F. Williams, Registered Pharmacist. It is further recommended that the Board of Pharmacy, order Mr. Albert F. Williams to forthwith surrender Pharmacy license no. 0012143 issued to Stich Enterprises, Inc., d/b/a Skycrest Pharmacy as stipulated by the parties. DONE AND ENTERED this 9th day of January, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 9th day of January, 2001.
The Issue Whether Respondent violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(a), Florida Administrative Code; violated Section 463.014, Florida Statutes, by violating Rule 64B13-3.008(15)(f), Florida Administrative Code; violated Section 463.016(1)(h), Florida Statutes, by violating Rule 64B13-3.009(2)(b), Florida Administrative Code; and violated Section 463.016(1)(f), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times material, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about April 19, 1998, Respondent entered into a lease agreement captioned "Equipment License," with U.S. Visions, Corp., to lease space and equipment as an optometric office in the J. C. Penney retail store on Mary Esther Avenue, Mary Esther, Florida. This location also constitutes the Santa Rosa Mall. Respondent paid $100.00 monthly rent for this office space. At all times material, Respondent also maintained a separate office for the practice of optometry under the name "Coastal Vision Center" in rental space in Destin, Florida. Respondent paid $2,900.00 monthly rent for the Destin office space. Respondent practiced in both locations during 1998. Respondent practiced under a professional corporation, named Shannon Fowler, O.D., P.A. Respondent's office space at the J.C. Penney location was inside the J.C. Penney retail store. Adjacent to Respondent's office space was the "J.C. Penney Optical Center," in which an optometrist practiced, and in which eyeglasses, contact lenses, and other optical merchandise could be purchased. Respondent personally placed a sign at the entrance to his office space at the J.C. Penney location identifying himself by name, stating that an independent practice of optometry was located there, and stating that he was not affiliated with the J.C. Penney retail store. During the time he practiced at the leased office space located in the J.C. Penney store, Respondent maintained telephones listed in his name at both his office locations. The telephone number for his office in J.C. Penney was different than the telephone number for his Destin office. Only Respondent, himself, answered Respondent's telephone at the J.C. Penney location. This telephone and telephone number were separate and had a different telephone number from the telephones for the J.C. Penney Optical Center. The receptionist at the J.C. Penney Optical Center occasionally made appointments with Respondent for persons who walked into the J. C. Penney Optical Center or who telephoned the J. C. Penney Optical Center telephone, but all such appointments were subject to confirmation by Respondent. There was no formal arrangement or agreement for the J. C. Penney Optical Center receptionist to make appointments over the Optical Center telephone for Respondent, and Respondent did not pay the receptionist. However, Petitioner benefited if the appointments she made were confirmed by him and actually kept by the patient. All of Respondent's patients at either location were advised that Respondent maintained an office in Destin, and all of his patients were advised to call a third telephone number, Respondent's cell phone number, for after-hours or emergency matters. All after-hours matters were handled at the Destin office by Respondent. However, patient files for patients that Respondent saw solely at the J.C. Penney location were stored by Respondent at that location. Respondent had no after-hours access to the J.C. Penney store. If there were an emergency, Respondent would have to obtain the patient's file the following day. At both office locations, Respondent, alone, determined which patients to see, what examinations and procedures to conduct, what optometry services to render, and what fees to charge any patients for his services. The lease agreement for Respondent's office space at J.C. Penney contained provisions precluding U.S. Visions Corp. from interfering with, or regulating, Respondent's independent practice of optometry in the office space he had leased. The lease agreement also contained a provision by which U.S. Vision Corp. covenanted not to violate Florida law. Respondent's lease with U.S. Visions Corp. prohibited his selling "frames, contacts, and related items" at the J.C. Penney location. Respondent did maintain inventory, employ an optometrist, and sell eyeglasses, lenses and frames at the Destin location. Respondent worked out of the J.C. Penney location three half-days per week on Mondays, Tuesdays, and Wednesdays. When requested by the patient, Respondent accepted the J.C. Penney credit card as payment for optometric services rendered at that location. When such card was used by a patient to pay for Respondent's services, J.C. Penney processed the payment and billed the patient directly. J.C. Penney rendered accounting and payment in full to Respondent for services charged on the credit cards on a bi-monthly basis. There is no evidence as to whether payment to Respondent was, or was not, affected by a delinquent payment by a patient to J.C. Penney. Respondent also accepted payment for his services rendered to patients at either location by check, cash, and Visa, Mastercard, and American Express credit cards. The patient elected which manner of payment to tender. Respondent's business records indicate that all of these forms of payment were utilized by patients at both locations. J.C. Penney charged a two-percent (2%) processing fee for the collection and accounting of services charged by patients on their J.C. Penney credit card. This fee, and the manner in which J.C. Penney processed the payments charged to the J. C. Penney credit card, are comparable to, and do not materially differ from, the typical arrangements between small business merchants and issuers of the other major credit cards which Respondent accepted. Unrefuted testimony of a certified public accountant employed by Respondent was to the effect that the financial records of Respondent's two optometry offices for 1998 show no indication that J.C. Penney exercised any influence or control over Respondent's independent practice of optometry or billing practices, and in fact, indicate that J.C. Penney did not. There is no evidence that the Respondent ever used prescription forms or any other forms referring to J.C. Penney at either of his office locations. On July 12, 1998, an advertisement appeared in the Sunday supplement to the "Northwest Florida Daily News" under the heading "J.C. Penney Optical Center," advertising a "FREE eye exam & 50% off frames." In very small print, the advertisement said, "we'll pay for your eye exam for eyeglasses by deducting up to $40 from your prescription eyeglass purchase." The advertisement specified "Santa Rosa Mall." The J.C. Penney Optical Center is not a licensed optometrist. A corporation can never hold an optometrist license. Only an individual can be licensed as an optometrist in Florida. The record is silent as to who or what entity placed the advertisement. Respondent was not named in the advertisement. Respondent did not place the advertisement. There is no evidence that Respondent had any involvement in the text or publication of the advertisement. Respondent did not have any prior knowledge that the advertisement was going to be published. U.S. Visions Corp. had never published any advertisement prior to July 1998, and Respondent did not foresee that the subject advertisement would be published. Respondent had no opportunity or means to prevent the publication of the advertisement. Respondent did not approve of, or consent to, the publication or content of the advertisement. Respondent had no opportunity to review the advertisement prior to publication. The lease for the J.C. Penney office location did not provide for U.S. Vision Corp. to do any advertising for Respondent. Respondent had no arrangements for advertising with either U.S. Vision Corp. or J.C. Penney. Respondent did not contemporaneously see the advertisement. He learned about it only through service of notice of the Department of Health's investigation into the advertisement, which ultimately resulted in this case. No patient or potential patient ever brought the advertisement or the coupon in the advertisement to Respondent or ever requested that the Respondent provide optometry services in accordance with the advertisement or the coupon. Respondent did not provide any optometry services in accordance with the advertisement or coupon, and would not have done so if requested. Respondent received no benefit from the advertisement. Respondent provided no "FREE" eye exams. The Respondent charged $49 per eye exam. The agency's expert witness, a licensed optometrist and former member of the Board of Optometry, testified that he believed that, on its face, the advertisement implied an association or affiliation between Respondent and J.C. Penney; that an optometrist practicing at J.C. Penney could be expected to benefit from the advertisement because of the content of the advertisement; that the advertisement was misleading because a person reading it would expect an eye exam to be "FREE"; and that when there is a lessor-lessee relationship of the type presented in this case, the Respondent optometrist has a responsibility to ensure that advertisements conform to the optometry statute and rules. The same expert witness testified that Chapter 463, Florida Statutes, does not prohibit optometrists from commercial establishments.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Optometry enter a final order dismissing Counts II, III, and IV, finding Respondent guilty of Count I of the Second Amended Administrative Complaint, and issuing a reprimand. DONE AND ENTERED this 2nd day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2001.
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
The Issue Whether Petitioner, acting on behalf of June Rosacker, is entitled, pursuant to Chapter 717, Florida Statutes, to the $37,281.25 in the Department of Banking and Finance's (Department's) Unclaimed Property Account Number 00963-1981- 00026, which was derived from the Department's sale of five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, that Gulfstream Bank, N. A., had turned over to the Department as unclaimed property.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made to supplement the "Stipulated Facts" set forth in the parties' Prehearing Stipulation: June Rosacker (Mrs. Rosacker) is the widow of Richard Rosacker (Mr. Rosacker). She and her late husband were married for 38 years before he passed away on October 11, 1995. Mr. and Mrs. Rosacker lived in a residence on the premises of Floral Acres, a commercial nursery located at 109 Northeast 17th Street in Delray Beach from 1961 until 1978. It was their first marital residence. Mr. Rosacker was the Vice President of Operations of Floral Acres until 1969, when he resigned his position. Mr. Rosacker's resignation coincided with his cousin, Arthur Rosacker, Jr. (Arthur Jr.), succeeding Arthur Rosacker Sr. (Arthur Sr.), Arthur Jr.'s father and Mr. Rosacker's uncle, as President of Floral Acres. Mr. Rosacker and Arthur Jr. did not get along with each other as well as Mr. Rosacker and Arthur Sr. did. Mr. Rosacker started his own business in 1970. Arthur Sr. executed his Last Will and Testament (Arthur Sr.'s Will) in 1971. Mr. Rosacker was not named a beneficiary in Arthur Sr.'s Will. Arthur Sr. passed away on April 4, 1978. Sometime in the 1970's, Mr. Rosacker received at his and Mrs. Rosacker's Floral Acres residence correspondence from a bank, which was not Mr. and Mrs. Rosacker's "regular bank," advising Mr. Rosacker that the bank was holding $25,000.00 in "funds" in his name. 1/ Mr. Rosacker thought "the bank must have made a mistake." He had no knowledge of the "funds" which were the subject of the bank's correspondence. Mr. Rosacker went to the bank (which was located in Boca Raton) for the purpose of letting the bank know that the "funds" were not his. Upon his return, he told Mrs. Rosacker that had taken care of the matter by telling the bank "it was not his money, he didn't put any money in the bank, and he knew nothing about it." In 1981, Boca Raton-based Gulfstream Bank, N.A. 2/ (Gulfstream) reported to the Department that it was holding as unclaimed property five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, (Bonds in Question) that had been left in a safe deposit box, number 3228, rented in the name of a "Richard Rosacker" whose address was not "on file" at the bank. 3/ Gulfstream's report to the Department further indicated that the "date of [the] last transaction" involving safe deposit box number 3228 was May 5, 1971. On this date, according to the report, the lessor of the box was Fort Lauderdale-based American National Bank and Trust Company (which subsequently merged with Gulfstream). The bonds were remitted to the Department, which sold them for a total of $37,281.25. At no time did either Mr. or Mrs. Rosacker rent a safe deposit box from American National Bank and Trust Company or Gulfstream. At no time did either Mr. or Mrs. Rosacker purchase Florida Development Commission Sunshine Skyway Revenue Bonds. On May 18, 1984, Mr. Rosacker executed a Declaration of Trust, which provided, in pertinent part, as follows: ARTICLE I TRUST CORPUS This Trust shall consist of the original TEN DOLLARS ($10.00) contribution and additional assets may be contributed by me or by any other person. All trust assets shall be listed on the SCHEDULE OF ASSETS attached hereto, may be comprised of property of any kind and character, including insurance benefits of any nature, and may be added by inter vivos or testamentary transfer, or otherwise at my demise. Any asset registered in the name of the Trust or Trustee 4/ shall be presumed to be a part of this Trust, whether such asset is listed on the SCHEDULE OF ASSETS or omitted therefrom, it being my intent to expand rather than restrict the list of assets held in this Trust. . . . ARTICLE V DISPOSITION AT SETTLOR'S DEMISE-RESIDUARY TRUST PROVISIONS If my wife, JUNE WEBB ROSACKER, survives me, I direct my Trustee to fund into "Trust B" provided under paragraph B the largest amount, if any, that can pass free of Federal estate tax under this instrument by reason of the unified credit and the state death tax credit, reduced by property passing outside this instrument which does not qualify for the marital or charitable deduction in computing Grantor's federal estate tax. The values as finally fixed for Federal estate tax purposes shall govern the funding of this Trust. The balance of my estate I give outright to my wife, June Webb Rosacker. . . . ARTICLE VI APPOINTMENT OF TRUSTEE . . . Upon my demise my wife, JUNE WEBB ROSACKER and my friend, MARVIN SALINE, shall be appointed the Trustees of all shares of this Trust. Should MARVIN SALINE be unable to serve as Trustee, my brother, HANS DONALD ROSACKER shall be appointed Trustee. . . . Should neither of the foregoing be able to serve as Trustee with my spouse then she shall appoint as Trustee a corporate fiduciary. The "Declaration of Trust's" "Schedule of Assets" was left blank. On September 23, 1988, Mr. Rosacker executed an Amendment to Trust Agreement, which provided, in pertinent part, as follows: I hereby amend Article VI, Paragraph A to provide that if my spouse cannot serve as Trustee, then my daughters, JANICE and ELLEN, shall serve as Trustees, or either shall serve as sole trustee if one cannot serve. I then amend Paragraph B to appoint my spouse and my daughters, JANICE and ELLEN, (or either if one cannot serve) as Co-Trustees at my demise. I therefore revoke all reference to MARVIN SALINE and HANS DONALD ROSACKER as potential Trustees, . . . . On May 18, 1984, the same day he executed the Declaration of Trust, Mr. Rosacker also executed a Last Will and Testament, which provided, in pertinent part, as follows: ARTICLE III I give to my beloved wife, JUNE WEBB ROSACKER, in fee, all clothing, jewelry, household goods, personal effects, automobiles and other tangible personal property not otherwise specifically bequeathed by Will, Codicil or Separate Writing, except cash on hand, owned by me at the time of my death. . . . ARTICLE V All the rest, residue and remainder of the property which I may own at the time of my death, real, personal and mixed, tangible and intangible, of whatsoever nature and wheresoever situated, including all property which I may acquire or become entitled to after the execution of this Will, . . . , I bequeath and devise to the Trustee of that Trust Agreement executed by me on , 1984, said assets to be held IN TRUST as part of the Trust Estate as that term is used in said Trust Agreement as further amended at time prior to my death. . . . ARTICLE VI I hereby appoint my wife, JUNE WEBB ROSACKER, to be my Personal Representative of this my Last Will and Testament. . . . Fred Goodman is a Florida-licensed private investigator who does business as Eyes and Ears Investigative Services. He has been "involved in abandoned property matters" for the past nine years. In February of 1994, Mr. Goodman visited Mr. and Mrs. Rosacker at their home in Oveido, Florida, to seek authorization to file a claim with the Department, on behalf of Mr. Rosacker, to recover the proceeds of the sale of the Bonds in Question. Mr. Rosacker declined to give Mr. Goodman such authorization. He told Mr. Goodman that, although he believed that the bonds "were put in the bank for him by his uncle," Arthur Sr., "it was a situation in which he was not going to be able to prove that he owned the funds" and that therefore it would be a "waste of time" for him to pursue the matter. Following Mr. Rosacker's death in 1995, Mr. Goodman entered into an agreement with Mrs. Rosacker in which Mrs. Rosacker agreed to "appoint Eyes and Ears Investigative Services . . . an irrevocable Limited Power of Attorney to proceed on [her] behalf in accordance with [the recovery of the $37,281.25 in assets described in the agreement]; [and] to perform any and all acts, including but not limited to the execution of any and all documents, for and on behalf of [her], as may be required in order to effect the recovery and disbursement of said assets to Eyes and Ears Investigative Services Escrow Account." The agreement provided that, "for full compensation of its Services," Eyes and Ears Investigative Services would be "assigned a fee of 30% [of] said assets." Although it has been almost six years since Mr. Rosacker has passed away, his Last Will and Testament has not yet been probated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order rejecting Petitioner's claim that Mrs. Rosacker is entitled to the proceeds of the Bonds in Question. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of October, 2001.
Findings Of Fact Background Respondent, Department of Health and Rehabilitative Services (Department), is the designated state agency responsible for the administration of Medicaid funds under Title XIX of the Social Security Act. Rule 10C- 7.048(2)(a), Florida Administrative Code. Petitioner, Richmond Healthcare, Inc., d/b/a Sunrise Health Center, owns and operates a 240-bed nursing home in Broward County, Florida, and is a participant in the Florida Medicaid Program. As a participant, petitioner is required to submit annual cost reports to the Department. Based on these cost reports, the Department establishes a participant's reimbursement rate. Rules 10C-7.048(4)(a)5 and 10C-7.048, Florida Administrative Code. The annual cost reports are subject to audit at the discretion of the Department. If audited, a direct examination of the participant's books, records and accounts that support the amounts reported in the annual cost report is made to determine the correctness and propriety of the amounts claimed in the cost report. Rule 10C-7.0481, Florida Administrative Code. Pertinent to this case, the Department elected to audit petitioner's cost reports for the period of October 5, 1983, through December 31, 1984. Based on such audit, the Department issued an audit report that disallowed certain costs claimed by petitioner, and proposed to recoup the excess Medicaid payments made to petitioner as a consequence of such disallowance. Petitioner filed a timely protest to contest the Department's decision. The parties' joint stipulation At hearing, the parties stipulated as follows: The parties have recalculated the usual and customary charges at $65.72 per day. The Department of Health and Rehabilitative Services will reclassify costs of $8,282.00 from the capitalized minor equipment to the operating and patient care component. The Department of Health and Rehabilitative Services will reclassify construction period interest to start-up costs from the date of certificate of occupancy to the date of the admission of the first resident to the nursing home. Amortization of this amount for the 15 months ended December 31, 1984, cost reporting period totaled $27,677.00. The adjustment to indirect home office costs will remain as in the audit report. The parties agree that the property ceiling issue will be remanded to the Department of Health and Rehabilitative Services for an informal hearing. All arguments will be presented in writing to the informal hearing officer. Oral argument will be permitted at the request of either party. The parties further agree that the written arguments will be due on the same date that the Proposed Recommended Order is due in the companion rule challenge case. If the rule challenge is dismissed, the parties will file briefs and hold oral argument, if requested, within fifteen (15) days of its dismissal. The parties agree that the only remaining disputed issue in the Petition filed in this matter is the allowable expense for private airplane usage. The expenses for private airplane usage. In rendering its annual cost report, a participant, such as petitioner, is bound by the following provisions of law or contract: Rule 10C-7.48(4), Florida Administrative Code, which provides: (4) Provider Eligibility. (a) Nursing home providers participating in the Medicaid Nursing Home Program shall: * * * Have a Medicaid reimbursement rate established. The provider shall submit a cost report in compliance with the provisions of the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended January 1, 1984, adopted by reference. The cost report shall be analyzed and a reimbursement rate established in accordance with the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended effective January 1, 1984. The Florida Title XIX Long Term Care Reimbursement Plan, which provides: * * * Cost Finding and Cost Reporting All providers are required to detail all of their costs for their entire reporting period, making appropriate adjustments as required by this plan for determination of allowable costs. . . . The cost report must be prepared by the facility's independent Certified Public Account, on the forms prescribed by the Department, and on the accrual basis of accounting in accordance with generally accepted accounting principles as established by the American Institute of Certified Public Accountants (AICPA), the methods of reimbursement in accordance with Medicare (Title XVIII) Principles of Reimbursement, the Provider Reimbursement Manual (HIM-IS) except as modified by the Florida Title XIX Long Term Care Reimbursement Plan, and State of Florida Administrative Rules. * * * G. All providers are required to maintain financial and statistical records in accordance with 42 CFR 405.453(a), (b, (c), (e). The cost report is to be based on financial and statistical records maintained by the facility. Cost information must be current, accurate, and in sufficient detail to support costs set forth in the report. This includes all ledgers, books, records, original evidence of cost and other records in accordance with HIM-IS which pertain to the determination of reasonable costs, and must be capable of and available for auditing by State and Federal authorities. . . . (Emphasis added) * * * III. Allowable Costs * * * C. Implicit in any definition of allowable costs is that those costs should not exceed what a prudent and cost-conscious buyer pays for a given service or item. . . . HIM-IS, which provides: 2100. PRINCIPLE All payments to providers of services must be based on the "reasonable cost" of services covered . . . and related to the care of beneficiaries. . . . * * * 2102.1 Reasonable Costs... It is the intent of the program that providers will be reimbursed the actual cost of providing high quality care. Implicit in the intention that actual costs be paid to the extent they are reasonable is the expectation that the buyer seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service. . . . 2102.2 Costs Related to Patient Care.-- These include all necessary and proper costs which are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities. Necessary and proper costs related to patient care are usually costs which are common and accepted occurrences in the field of the provider's activity. . . . * * * 2103. PRUDENT BUYER General.--The prudent and cost-conscious buyer not only refuses to pay more than the going price for an item or service, he also seeks to economize by minimizing cost. . . . * * * 2304. ADEQUACY OF COST INFORMATION Cost information as developed by the provider must be current, accurate, and in sufficient detail to support payments made for services rendered to beneficiaries. This includes all ledgers, books, records and original evidences of cost (purchase requisitions, purchase orders, vouchers, requisitions for materials, inventories, labor time cards, payrolls, bases for apportioning costs, etc.), which pertain to the determination of reasonable cost, capable of being audited. (Emphasis added) On audit, petitioner provided no books, records or accounts to support the amounts reported in its annual cost report for expenses associated with private airplane usage. Under the circumstances, the Department properly disallowed such costs since their propriety and correctness was not substantiated by petitioner. At hearing, petitioner offered no proof regarding the correctness or propriety of the subject costs, but relied upon the proof offered on behalf of intervenor, Thelma R. Allgood. Ms. Allgood was, at all times material hereto, an owner of 50% of petitioner's stock, and was, after its sale to third parties, contractually obligated to assist and cooperate with petitioner to document the subject claim. At hearing, the proof offered on behalf of intervenor demonstrated that during the period of October 5, 1983, through December 31, 1984, petitioner had contracted with Allgood Healthcare, Inc., which was located in Augusta, Georgia, to provide all of the customary and necessary management services for petitioner. During this period, Ms. Allgood, in addition to owning 50% of petitioner's stock, was, along with her husband, Thomas Allgood, the sole owner of Allgood Healthcare. In view of this community of interest, Allgood Healthcare was considered a home office of petitioner for cost reporting purposes. Between October 5, 1983, and December 31, 1984, Allgood Healthcare used its private plane on 42 occasions to fly Mr. and Mrs. Allgood, as well as other personnel of Allgood Healthcare, to or from petitioner's facility in Broward County, Florida, and the home office in Augusta, Georgia, as well as the cities of Savannah and Atlanta, Georgia. The expenses for these trips totaled $41,228.26, and included aircraft operation costs, pilot charges, pilot's expenses, and fuel. On average, the cost of each trip was approximately $940. 1/ During the same time-frame, the cost for a round trip economy fare ticket between Augusta and Fort Lauderdale by commercial airline was approximately $430. To demonstrate its entitlement to claim the expenses for private airplane usage on its costs report, it was incumbent upon petitioner to demonstrate that such costs were reasonable and related to patient care. Petitioner has failed to demonstrate either prerequisite. The only proof offered to demonstrate that the subject costs were related to patient care was through the testimony of Mr. Allgood. Mr. Allgood, admittedly a person with no knowledge of patient care or cost reporting, accompanied his wife on approximately one-half of the subject trips and opined that the purpose of those trips, as well as those on which he had no personal involvement, were related to patient care. Mr. Allgood was, however, unable to recall any specific trips he made; any dates he, his wife, or any other specific person were on the premises; or what precisely was done at any particular time that would demonstrate that the trip was related to patient care. Under the circumstances, Mr. Allgood's testimony is not persuasive, and his conclusion that the subject costs for private airplane usage were related to patient care is not credited. 2/ Regarding the reasonableness of the expenses incurred, the proof demonstrated that the cost per trip for use of the private plane was $940, while the cost for a round trip ticket by commercial airline was $430. To support the reasonableness of this expense, intervenor again offered the testimony of Mr. Allgood, who opined that where two passengers were on a trip, the cost was comparable to commercial travel. Mr. Allgood's testimony was, however, unpersuasive to demonstrate the reasonableness of the cost to patient care. Notably, Mr. Allgood, who admitted performing no services related to patient care, accompanied his wife on approximately one-half of the trips. Under such circumstances, his presence was unnecessary, and the costs for transporting Ms. Allgood by private plane, even assuming she performed services related to patient care, were unreasonable. With respect to the remaining trips, Mr. Allgood was shown to have no personal knowledge regarding those trips, and his testimony that at least two passengers were present on each of those trips is not credited. In fact, to the extent proof is available, it indicates that a number of trips were made with only one passenger, and that on several occasions the expense of a trip, ostensibly a round trip (Augusta-Fort Lauderdale- Augusta), were incurred to transport one or two passengers in one direction only.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Petitioner's protest of the Department's disallowance of the expenses associated with private airplane usage as Medicaid resident costs be dismissed, and Upon review of the property ceiling issue which is hereby remanded to the Department, that it enter a final order consistent with its findings on that issue, the parties' stipulation, and the recommendation contained in this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of January, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1989.
