Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration (hereinafter “the Agency”), finds and concludes as follows: 1. This matter involves an action in which the Agency denied the Petitioner’s renewal application for a home health agency license. (Ex. 1) 2. The Agency sought the denial of renewal of license based on: a. Survey ending May 6, 2008 included eight deficiencies b. Survey ending February 23, 2011 included three deficiencies, one of which was failure to be operational at the time of surveyors came to conduct an unannounced survey. The home health agency refused to provide the requested plan of correction to the Agency within ten days. c. Survey ending August 4, 2011 included four deficiencies. 3. On February 17, 2012, the above-styled matter was referred for a formal hearing to the Division of Administrative Hearings. The matter was held in abeyance pending an appeal in a related case regarding the revocation of this same license. On March 19, 2013, the Court of Appeal dismissed the Petitioner’s appeal upholding the Final Order revoking this license. On April 9, 2013, the Agency filed a Motion to Close Case and Relinquish Jurisdiction in this case. On April 11, 2013, Administrative Law Judge June C. McKinney entered an Order Closing File and Relinquishing Jurisdiction. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Notice of Intent to Deny is UPHELD. 2. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes, 3. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 1 Filed July 9, 2013 8:48 AM Division of Administrative Hearings 4. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED in Tallahassee, Florida, this Kx day of , 2013. Elizabeth Dudek, Secretary alth Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. 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 correc ry So this apr er_was served on the below-named persons by the method designated on this "a ets , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Anne Menard, Unit Manager Facilities Intake Unit Health Care Clinic Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Nelson E. Rodney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Valerie Jeune Compass Home Health Agency for Health Care Administration 16635 NE 19" Avenue (Electronic Mail) Miami Beach, Florida 33162 (U.S. Mail) | June C. McKinney Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue is whether Respondent concealed medications from Petitioner's inspectors so as to interfere with an investigation, in violation of Section 456.072(1)(r), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a practical nurse in Florida, holding license number PN 1028401. On May 11, 2001, Respondent was employed by Seawinds Health Care Services as a licensed practical nurse. After receiving complaints that Seawinds Health Care Services was operating an unlicensed drug and alcohol rehabilitation center, Petitioner's Unlicensed Activity Office and the Miami-Dade Police Department conducted an unannounced inspection of the facility on May 11, 2001. At the time of the arrival of the law enforcement officers, Respondent had custody of the key to the medication closet at the nurse's station. During the course of the inspection, a law enforcement officer asked Respondent to unlock the medication closet. Respondent did so at about noon. Inside the closet were numerous bins bearing the names of different patients. Some medications were strewn between bins, and some medications were in unmarked bins. The law enforcement officers briefly examined the bins and their contents and then proceeded elsewhere with their inspection. Later, they approached Respondent and asked her to execute a consent to search the closet that they had searched at noon. Respondent executed the consent and at about 2:30 p.m., she again unlocked the closet for inspection. At the time of the second inspection, the closet contained only medications stored in bins marked with the names of current patients. After she was given her Miranda rights by a law enforcement officer, Respondent admitted that, at the direction of one of her supervisors, she had moved the other medications from the closet, where they had been at noon, to a nearby desk drawer. The medications in the desk drawer included medications for patients who had departed the facility. These medications included controlled substances. A short period of time--not more than one-half hour--elapsed between the second opening of the closet and Respondent's admission that she had moved the missing medications to the desk drawer. Respondent subsequently cooperated with the investigation and provided useful information. She had followed the direction of her supervisor to hide the improperly maintained drugs because she was scared. According to one law enforcement officer, Respondent helped the investigation and did not impede it; the delay caused by Respondent after she moved the medications was "minimal." The second law enforcement officer who testified agreed that Respondent did not impede the investigation. This officer also found Respondent cooperative and willing to testify against her supervisors.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 5th day of July, 2002. COPIES FURNISHED: Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Amy M. Pietrodangelo Senior Attorney Agency for Health Care Administration Practitioner Regulation, Allied Health 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Mark S. Solomon Attorney for Respondent 901 South Federal Highway, Suite 300 Fort Lauderdale, Florida 33316
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2: The Respondent had voluntarily surrendered the license for this assisted living facility and voluntarily closed this assisted living facility. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Ss The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially Filed November 3, 2014 4:29 PM Division of Admihistrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency $6,000.00. 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 7. The Agency’s Bureau of Central Services and the Assisted Living Unit shall maintain an alert on the Respondent’s controlling interest, Aida Salgueiro, in order to ensure compliance with the terms of the Settlement Agreement. ORDERED at Tallahassee, Florida, on this ro 2) day of Crctotecr _ , 2014. ek, Secretary alth Care Administration Elizabeth Agency for
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_cgpy of this Final Order was served-6n the below-named persons by the method designated on this 52>-day of TE , 2014. 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Catherine Anne Avery, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration Alba M. Rodriguez, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Aida Salgueiro Medicaid Contract Management Pretty Family Home Care Agency for Health Care Administration 2980 S.W. 103" Court (Electronic Mail) Miami, Florida 33165 (U.S. Mail) Ashley Jenkins Brian J. Perreault, Jr. Bureau of Central Services Lydecker Diaz Agency for Health Care Administration (Electronic Mail) 1221 Brickell Avenue, 19" Floor Miami, Florida 33131-3240 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether Petitioner is entitled to an exemption from disqualification to work in a position of special trust.
Findings Of Fact On June 6, 1979, Petitioner went into a public restroom and attempted to use a urinal. To do so, he had to remove his sexual organ from his clothing. An adult male dressed in beach clothing called to him, "Come here," so Petitioner turned around and took half a step. The man asked, "What do you like?" Petitioner responded, "Women. Excuse me," and faced the urinal again. The other man, a plain-clothes law-enforcement officer, arrested Petitioner. Petitioner was charged with Section 800.03, Florida Statutes, "exposure of a sexual organ (by masturbation) -- misdemeanor." This was a misdemeanor charge at the time committed. Despite there having been no masturbation, in his opinion, Petitioner pled nolo contendere, and adjudication was withheld; he was assigned six months unsupervised probation and paid a fine. It is only on the basis of the foregoing 1979 plea that Petitioner has been disqualified from working in a position of special trust. He was notified by an April 18, 1996 letter that, pursuant to Sections 402.302(8) and 435.04(2), Florida Statutes [1995], he is disqualified as a household member in a family day care home. (Agency Exhibit 1) Petitioner also was arrested in 1982. The record is unclear as to what statute he was charged under at that time, but he did plead guilty and was fined. The circumstances surrounding the 1982 incident were established solely by Petitioner's testimony. He was in a department store restroom. There was a hole cut in the wall between two stalls "and apparently there was someone on the other side, the next stall that prompted me to put my sex organ through the hole in the wall." The person in the next stall was not a law enforcement officer. (TR 37-41, 43-45)1 Petitioner was arrested upon exiting the restroom. He has not been arrested since 1982. Petitioner has been happily married for 27 years. He and his wife have three children and five grandchildren. He and his wife are well-loved by their own children and grandchildren. They have a history of welcoming the troubled friends of their children into their home. The neighborhood children and Petitioner's grandchildren have always affectionately called Petitioner, "Grand-daddy" and have called Petitioner's wife, "Nanny." Their home is, and always has been, a gathering place for the neighborhood children. Petitioner's wife runs a licensed family day care home out of the family home from 6:00 a.m. to 6:00 p.m., Monday through Friday. Although she did not know about Petitioner's 1979 incident before it was disclosed through the agency screening process, she does not believe Petitioner presents a danger to children. She believes the 1979 incident constituted "entrapment". By a second letter dated April 18, 1996, Petitioner's wife was notified that, pursuant to Sections 402.302(8) and 435.04(2) Florida Statutes [1995] (Agency Exhibit 2), Petitioner was forbidden from having contact with any children in her family day care home and that if he is allowed to have contact with children in her care, she would be subject to an administrative fine and possible criminal penalties. The four children currently paying to attend Petitioner's wife's day care home are respectively aged one, two, three, and four years of age. For the last eight years, due to his trade as a self- employed leather worker, Petitioner has traveled a wide circuit from flea market to flea market throughout the week. He is only present in the family home from 10:30 p.m. Fridays to 3:00 a.m. Mondays. His wife's day care home does not operate during those periods that Petitioner is typically at home. Petitioner is a devout Seventh Day Adventist and an elder of his local church. He is the church's Sabbath School Superintendent. Petitioner's daughter and former daughter-in-law wrote letters entered in evidence and also testified that the family home is warm and loving and that Petitioner is a great "Grand- daddy." They rely on Petitioner and his wife for baby-sitting services. In their mutual opinion, Petitioner is not a danger to children, however some of their testimony minimized Petitioner's problems as only being "past mistakes." Neighbors' letters to the effect that Petitioner does not pose a threat to children, is active in his church, and travels except on weekends were admitted in evidence without objection, as was a statement by his pastor that Petitioner is a man of "impeccable character." However, none of these persons was available for cross-examination, and their letters do not clearly show that they had knowledge of Petitioner's past lewd acts or any reason or opportunity to know if he had committed any subsequent ones.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is , reluctantly, RECOMMENDED that the Department of Children and Families enter a Final Order removing Petitioner from the registry of disqualified persons.RECOMMENDED this 6th day of March, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1997.
The Issue Whether the Respondent's rejection of the Petitioner's Application for Licensure dated August 8, 1986, was proper?
Findings Of Fact The Petitioner was issued a license dated July 1, 1985 (hereinafter referred to as the "License"), to operate a home health agency in Franklin County, Florida. On the face of the License it was indicated that the "Expiration Date" of the License was June 30, 1986. By letter dated April 2, 1986, the Respondent notified the Petitioner that its License would expire on June 30, 1986. The Petitioner was also informed that if an application for renewal of the License was not filed on or before May 2, 1986, the Petitioner would be subject to an administrative fine. An application to be used to renew the License was also sent with the letter. In April or May of 1986, the Petitioner filed for Chapter 11 bankruptcy. On May 8, 1986, the United States District Court for the Northern District of Florida, Tallahassee Division, entered an order pursuant to 11 U.S.C. s. 362, which, among other things, stayed the commencement or continuation of any legal proceedings against the Petitioner. The Petitioner began discussions with Charles Hecht, Jim Palmer and a group called the Well Springs group about the possibility of selling the Petitioner. The Well Springs group was represented by John Branch and Ann Morgan. On June 16, 1986, Marilyn Nevado of the Respondent's Jacksonville Office of Licensure and Certification called the Petitioner's office. Ms. Nevado talked with Denise Putnal, the secretary and bookkeeper of the Petitioner. Ms. Nevado called to remind the Petitioner that its License was going to expire on June 30, 1986, and to ask why no application to renew the License had been filed. Ms. Putnal explained to Ms. Nevado that the Petitioner was involved in a bankruptcy proceeding. Virginia Schorger, the Administrator of the Petitioner, asked Ms. Putnal to call the Respondent on June 16, 1987, and find out what the Petitioner should do about its License. Ms. Putnal called the Respondent's Jacksonville office. She spoke with a woman, whose name she could not recall, and was told by the woman that she would have someone who could answer Ms. Putnal's questions call Ms. Putnal. Later that day, Arthur Harberts called the Petitioner and spoke with Ms. Putnal. According to a memorandum from Mrs. Putnal dated July 23, 1986, Ms. Putnal told Mr. Harberts the following: I explained in detail to the man that our agency had filed bankruptcy and was in the process of being sold to either of two bidders with this decision being made by the Federal Bankruptcy Court. Mr. Harberts told Ms. Putnal the following: He told me that FCVNA [the Petitioner] should not renew the license in that name. He said to have the agency write a letter to Mr. John Adams' office detailing all of what I had explained to him via telephone. With this letter he requested the agency send a copy of our current license. He also explained that the new owner would have to obtain a license in the new agency name. . . . Mr. Harberts had been told that the sale of the Petitioner was to take place before June 30, 1986. Ms. Putnal reported her conversation with Mr. Harberts to Ms. Schorger and made a copy of the License. The Petitioner did not send a letter with a copy of the License to the Respondent as suggested by Mr. Harberts. As of July 1, 1986, no application to renew the License was filed by the Petitioner. On June 30, 1986, the Petitioner's License expired by operation of law. On July 17, 1986, a sale of the Petitioner to the Well Springs group was approved by the bankruptcy court. On July 23, 1986, Ms. Schorger was informed by Ms. Morgan that she had been told that the License had expired. Upon learning that the License had expired, Ms. Schorger sent a letter dated July 23, 1986 to Amy Jones, Director of the Office of Licensure and Certification of the Respondent. In part, Ms. Schorger indicated the following in her letter: Early in June our Secretary/Bookkeeper called your office to inform you of our bankruptcy with reorganization plans and to ask about renewing the license. She was told that as soon as the court decided who the new owner would be to send a copy of the present license and the name of the new owner. Ms. Schorger also had Ms. Putnal write a memorandum memorializing her telephone conversation of June 16, 1986, with Mr. Harberts. Ms. Putnal completed the memorandum on July 23, 1986. A copy of this memorandum was sent with the July 23, 1986 letter. A check for $500.00 was also included with the July 23, 1986, letter. After July 23, 1986, Ms. Schorger had several telephone conversations with Ms. Jones. In a letter dated August 5, 1986, Ms. Jones recommended that the "new owner" of the Petitioner apply for a new license as an "uncertified" home health agency. This action was suggested so that the Petitioner could continue to operate. Ms. Jones told the Petitioner that the Petitioner would not, however, be entitled to bill Medicaid/Medicare and, therefore, it was also recommended that the new owner apply for a certificate of need. Once the certificate of need was approved, it was recommended that an application be filed for a license as a "certified" home health agency. In the interim, Ms. Jones recommended that the Petitioner contact other certified home health agencies "in an effort to see if you can solicit their assistance in serving the Medicaid/Medicare clients in your area." On or about August 8, 1986, Ms. Schorger filed an Application for Licensure as a home health agency. Under Section I.D. of the application Ms. Schorger indicated that the application was for a license as a "certified agency" and not a "non-certified agency" as Mr. Jones had suggested. The check for $500.00 previously sent to the Respondent on July 23, 1986 and subsequently returned to the Petitioner was also included with the application. By letter dated September 2, 1966, the Respondent informed the Petitioner that the Application for Licensure submitted on August 8, 1986, for a license as a certified agency was denied. The Petitioner was aware that its License would expire on June 30, 1986. The evidence failed to prove that the Petitioner was told that the expiration date of the Petitioner's License would be extended or waived, that failure to file an application for renewal of the License would be excused or that the date for filing an application for renewal would be extended. The Petitioner did not hold a certificate of need for a home health agency at the time its Application for Licensure was filed on August 8, 1986.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Home Health Care Agency, Inc. (Home Health Care) was licensed as a home health agency by the Agency for Health Care Administration (AHCA), having been issued license number 20481-95 NC. The license was valid for one year from the date of issuance, which was January 1, 1996. The license expired on December 31, 1996, and the license bore such expiration date. On September 9, 1996, AHCA conducted an on-site inspection of Home Health Care. No deficiencies were found. On October 21, 1996, AHCA mailed a blank license renewal application to Home Health Care’s administrator. Accompanying the blank application was a letter also dated October 21, 1996, and addressed to Home Health Care’s administrator. The letter stated, among other things, that Home Health Care's license was expiring on December 31, 1996; that 60 days prior to the expiration date of the license, the application, all required documentation, and the license fee must be received by or postmarked to AHCA; and that a fine may be imposed for failure to timely submit the documents. October 31, 1996, was the deadline for Home Health Care to timely submit the license renewal application to AHCA. On December 3, 1996, Home Health Care’s completed license renewal application was executed. On December 3, 1996, via UPS Next Day Air, Home Health Care shipped its completed license renewal application to AHCA. The next day, on December 4, 1996, AHCA received Home Health Care's completed license renewal application. Home Health Care failed to timely submit its completed license renewal application to AHCA, but submitted the license renewal application 34 days late to AHCA. On or about February 22, 1997, AHCA issued a renewal license to Home Health Care for the 1997 licensure period. Prior to the expiration date of the licenses for home health agencies, as a courtesy, AHCA attempts to mail-out blank license renewal applications to home health agencies. The timing of the mailings varies and is dependent upon when AHCA’s computer system is able to generate the letters to the home health agencies, which accompany the blank license renewal applications. AHCA does not consider its act of courtesy to relieve the home health agency of the responsibility to submit the license renewal application within the required time frames. A home health agency which wishes to renew its license can request a blank license renewal application from AHCA at any time. AHCA receives numerous requests for blank renewal applications, as well as other documents required to be submitted by a home health agency. AHCA can fax, and has faxed, a blank renewal application to a home health agency on the same day that the application is requested. In the previous year, 1995, AHCA mailed a blank license renewal application for the 1996 licensure year to Home Health Care's administrator. Accompanying the blank license renewal application was a letter, dated June 22, 1995, to Home Health Care's administrator, which contained the same information and language as the letter of October 21, 1996, except for the expiration date of the license and the name of the author of the letter. Home Health Care’s administrator prepared and submitted a completed license renewal application for the 1996 licensure year. The blank license renewal applications for 1995 (the 1996 licensure year) and 1996 (the 1997 licensure year) did not change and were identical.
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: Finding that Home Health Care Agency, Inc. violated Subsection 400.471(5), Florida Statutes (1995), and Rule 59A- 8.003(4), Florida Administrative Code. Imposing an administrative fine of $3,400. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998.
