Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Dora Retirement Home, is located at 4727 Brooksdale Drive, Sarasota, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate a ACLF (facility) at 4727 Brooksdale Drive, Sarasota, Florida, housing a maximum of six residents. Idora Rawlings is and has been the owner and operator of the facility since its initial licensure in March, 1990. By letter dated August 12, 1993, the Agency denied Respondent relicensure to operate the facility the license for which was scheduled to expire on August 22, 1993. Respondent is presently operating under a conditional license pending the disposition of this administrative proceeding in accordance with Section 400.417(2), Florida Statutes. On January 29, 1991, the Agency reported the results of its January, 1993, annual survey of the facility and cited the Respondent for several deficiencies. These deficiencies were corrected within the specified time allowed by the Agency. However, some of the same type deficiencies were cited in the January 19, 1993, annual survey that is alleged not to have been corrected in either the March 22, 1993, or the June 11, 1993, follow-up visits or the January 10, 1994, appraisal visit. In January 1993, the Agency performed an annual survey of the facility and reported the results on January 19, 1993. Several deficiencies were cited by the Agency in this annual survey. The Agency provided the Respondent with a specified time within which the alleged deficiencies were to be corrected. It is alleged that some of the deficiencies were not corrected within the specified time allowed by the Agency. Listed below are the Class III deficiencies that are alleged in the administrative complaint as violations of statutes or rules and the findings regarding those deficiencies. For convenience, the alleged deficiencies and the findings of fact concerning those deficiencies are listed in the same alphabetical order {(a) through (bb)} as in the administrative complaint. The facility failed to provided proof that liability insurance was maintained. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency. The Respondent had certificates of insurance for its liability insurance issued on June 18, 1990 and January 30, 1991, for the period of July 27, 1990 - July 27, 1991, and certificates of insurance for liability insurance issued on August 19, 1992, and January 20, 1993, for the period of July 27, 1992 - July 27, 1993. It is unclear whether the Agency requested and was not provided copies of the certificates of insurance at the 1991 and 1993 annual surveys or whether the Agency was just unable to locate copies of the certificates of insurance in the Respondent's files during the 1991 and 1993 annual surveys. In either case, the Respondent had certificates of insurance and the facility was insured during the applicable periods. The Agency failed to establish that a deficiency existed at the 1991 annual survey or the 1993 annual survey or that there was a repeat deficiency. The facility failed to post the last Agency inspection report. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. At the time of the annual survey in January 1993, and the March 1993, follow-up visit, Respondent had a copy of the last Agency inspection report (issued April 1991) in a file folder with other facility papers. These papers, including the latest Agency inspection report, were available for inspection by the residents and the public. However, the latest inspection report was not posted separately in a prominent location. The Agency established that a deficiency did exist in this regard. The facility failed to maintain the admission/discharge records in a complete manner. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. The Summary of Deficiencies for the January 29, 1991, and January 19, 1993, annual surveys indicate that the deficiencies cited at those surveys were corrected within the specified time allowed by the Agency. The Summary of Deficiency for the follow-up visit of June 11, 1993, does not provide a specified time within which the Agency allows the facility to correct the deficiency cited at the June 11, 1993, follow-up visit. The cited deficiencies concern the unavailability of admission/discharge records, the lack of required resident information in the admission/discharge records that were available and the failure to post admissions. At all times material to this proceeding, Respondent kept a separate register of the admission/discharge of the facility's residents which was available to the Agency for its inspection. Some of the information contained in the current register had been transferred to the current register from the old register. The reason for transferring the information was the new forms furnished by the Agency for this purpose better accommodated the information required by the Agency to be on the forms. In transferring the information from the previous register to the current register certain errors and omissions did occur, along with some of the admissions and discharge dates not being in chronological order. The January 19, 1994, appraisal visit alleges that two of the six residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register. The Agency failed to identify which two of the six residents present were not listed in the register. The names of the six residents present in the facility on December 6, 1993, with no discharge date, were listed in the register. There was no evidence that the Respondent had added any names to the register after the January 19, 1994, appraisal visit. As to the January 29, 1991, and the January 19, 1993, annual surveys and the June 11, 1993, follow-up visit, the Agency failed to establish that Respondent's admission/discharge records were not maintained in a complete manner, notwithstanding the testimony of the Agency's witness to the contrary. While the Respondent's admission/discharge register was somewhat "sloppy", the evidence shows that the register contained the required information. As to the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of residents present in the facility at the time of the January 19, 1994, appraisal visit were not listed in the register. The Agency failed to establish that a deficiency existed in this regard at the 1991 or 1993, annual survey, the June 11, 1993, follow-up visit or the January 19, 1994, appraisal visit or that there was a repeat deficiency. The facility failed to maintain a record of resident weights at admission and semiannually thereafter. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency. Respondent failed to record either the weight or the height of some of the residents admitted before the January 29, 1991, annual survey. However, this deficiency was corrected at or before the March 22, 1991, follow-up visit. There is insufficient evidence to show that Respondent failed to record the weight and height of any resident admitted between the January 29, 1991, annual survey and the January 19, 1993, annual survey, notwithstanding the testimony of the Agency's witnesses to the contrary. The Agency failed to establish or identify which, if any, resident that was admitted to or living in the facility during the applicable times that required or received individual assistance with their activities of daily living (ADL) as defined in Rule 10A-5.0131(2)(c), Florida Administrative Code. Likewise, the Agency failed to establish or identify which, if any, of the residents whose weight Respondent failed to record semiannually were receiving individual assistance with their ADL's. The Agency has failed to establish that a deficiency existed at the January 29, 1991, annual survey or the January 19, 1993, annual survey or that it was a repeat deficiency. The facility did not have a disaster plan and did not have the plan coordinated with the local disaster preparedness authority. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19. 1994, appraisal visit and is a repeat deficiency. The Respondent had a written disaster plan but the plan had not been coordinated with or reviewed by the local disaster preparedness authority at any of the visits by the Agency in January and March, 1993, or January, 1994. Although the local authority was slow to act on these matters, the Respondent failed to act timely or in a responsible manner in initially presenting the plan or making the changes required by the authority. The Agency established that the alleged deficiency existed at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and still existed at the January 19, 1994, appraisal visit, and it was a repeat deficiency. The facility did not develop written job descriptions for staff who provide personal services. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. Although some of the Respondent's staff did not have written job descriptions at the time of the January 19, 1993, annual survey or at the March 22, 1993, follow-up visit, the Agency failed to establish or identify which, if any, of the facility's employees without written job descriptions were providing personal services to the residents during the applicable time or which residents required assistance with personal services. Furthermore, the Agency failed to establish that the staff without any job descriptions at the January 19, 1993, annual survey was the same staff without job descriptions at the January 24, 1993, follow-up visit. The Agency failed to establish that a deficiency existed in this regard. The facility did not maintain required staff documentation and qualifications in the personnel record. It is alleged that this deficiency was cited at the time of the June 11, 1993, follow-up visit and was not corrected at the January 10, 1994, appraisal visit. The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. The facility was basically a one person operation. Idora Rawlings, being the owner and administrator, was usually that person. However, other personnel was hired from time to time. Although there was at least a part-time employee working at the time of the June 11, 1993, follow-up visit or had worked previously, this employee was never identified by the Agency and it was never established that this employee's personnel record did not contain the required staff documentation and qualifications. Other than the administrator, the Agency failed to identify any other part-time or full-time employees that had previously worked or were working at the facility at the time of the June 11, 1993, follow-up visit or at the January 19, 1994, appraisal visit. While the personal records of employees of the facility were sketchy, the Agency failed to establish which of those personnel records failed to meet the required staff documentation and qualifications, and thereby result in a deficiency. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that staff providing assistance with personal hygiene received training in personal hygiene. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit. As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were furnishing residents assistance with personal hygiene. Likewise, the Agency failed to establish or identify which, if any, of the facility's employees had not received training in personal hygiene. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that each staff person that comes into contact with potentially infectious materials is trained in infection control procedures for blood and other body fluids. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, and was not corrected at the March 22, 1993, follow-up visit. The Agency failed to establish that any of the facility's resident posed a threat of exposing any staff member to potentially infectious materials. As stated above, the facility was a one person operation and the administrator was usually that person. Other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees were required by their employment to expose themselves to any potentially infectious material that may be present in the facility. Likewise, other than the administrator, the Agency failed to establish or identify which, if any, of the facility's employees that were required to be trained in infection control procedures for blood and other body fluids had not been trained. The Agency failed to establish that a deficiency existed in this regard. Each person admitted to the facility was not covered by a contract executed at admission or prior thereto. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, annual survey and is a repeat deficiency. The Agency failed to establish and identify which, if any, of the residents that did not have a properly executed contract prior to, or at the time of admission. The Agency's witnesses could not identify any resident by name that did not have a properly executed contract prior to, or at the time of admission. The Agency failed to establish that a deficiency existed in this regard at any time or that there was a repeat deficiency. Each resident had not been examined by a health care provider within sixty (60) days prior to or thirty (30) days after admission. It is alleged that this deficiency was cited in the January 19, 1991, annual survey, recited at the January 19, 1993, annual survey and is a repeat deficiency. The Health Assessment for Adult Congregate Living Facilities, HRS-AA Form 1823 (health assessment) is the form completed by the health care provider upon completion of the medical examination and forwarded to the ACLF facility to assist the administrator in determining the appropriateness of admission. Lawrence C. Huffman admitted to the facility on December 23, 1990, had an undated health assessment. Martin C. Huber admitted to the facility on May 6, 1990, had a health assessment dated December 11, 1990, completed approximately seven months after admission. Pearl Rauchat admitted to the facility on October 9, 1990 had a health assessment dated November 19, 1990, completed 41 days after admission. This deficiency was corrected on March 7, 1991, well within the specified time for correction set by the Agency. Fred Dutt admitted July 10, 1992 had a health assessment dated August 14, 1992 - December 10, 1992, completed 35 days after admission. The Agency's presented no evidence of any other resident whose health assessment was untimely at the January 19, 1993, annual survey or at any other time.. The facility is required to rely on the health care provider to timely examine the resident, and to prepare and file the health assessment. Dutt's health assessment being only five days over due does not constitute a deficiency. Although the Agency established a deficiency in January, 1991, it was timely corrected, and there was no deficiency established in January, 1993. Therefore, there is no repeat deficiency. The administrator did not ensure that the criteria for continued residency was followed. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. The Agency failed to establish or identify which, if any, of the residents where the Respondent failed to follow the criteria for continued residency, notwithstanding the testimony of the Agency's witnesses. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The facility did not insure that staff knew how to implement the disaster plan. It is alleged that this deficiency was cited at the January 29, 1991, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. Other than the administrator, the Agency failed to establish that there were other employees prior to or at the time of the January 29, 1991, survey or that the Respondent had failed to insure that the staff, if there were any, knew how to implement the disaster plan. Although there may have been staff, other than the administrator, working at the facility between the January 29, 1991, annual survey and the January 19, 1994, appraisal visit, the Agency failed to establish or identify which, if any, of the staff did not know how to implement the disaster plan. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The administrator did not ensure that the staff certified in first aid are present in the facility at all times. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. The Agency failed to establish or identify which, if any, of the facility's employees that were not certified in first aid were left in charge of the facility. During the applicable time, the administrator and a part-time employee were the only employees of the facility. Both the administrator and the part- time employee had been certified in first aid. Either the administrator, the part-time employee or both were always present at the facility. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff have documentation of freedom from communicable diseases. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit or the January 19, 1994, appraisal visit. The Agency failed to establish or identify which, if any, of the staff did not have documentation of freedom from communicable diseases. During the applicable period there was only one part-time employee and the administrator working at the facility. The Agency failed to establish that either the part- time employee or the administrator did not have documentation of freedom from communicable diseases. The Agency failed to establish that a deficiency existed in this regard. The administrator had not designated in writing a staff person to be in charge during the temporary absence of the administrator. It is alleged that this deficiency was cited at the January 19, 1993, annual survey and was not corrected at the March 22, 1993, follow-up visit. During 1993, Evelyn Rhoden was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This authorization was posted on the bulletin board near the telephone in the small dining room by the kitchen. During 1994, Chistine St. Amand was designated in writing by the administrator as the staff member to be in charge of the facility in the administrator's absence. This authorization was posted on the same bulletin board as the 1993 written authorization. The authorizations were available to the Agency's surveyors during the applicable surveys and follow-ups. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff supervise the self-administered medications as specified by procedures spelled out in the regulations. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit. The Agency failed to advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. The Agency failed to establish or identify which, if any, of the facility's residents required supervision of self-administered medication and thereby require the facility to document staff supervision of self- administered medication. The Agency failed to establish that a deficiency existed in this regard. The administrator did not ensure that the staff restricted the assistance with self-administered medication process as allowed in the regulations. It is alleged that this deficiency was cited at the January 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. It appears that this is the same deficiency as listed in 4(q) above. However, in any event the Agency has failed to establish or identify which, if any, of the facility's staff did not restrict the assistance with the self- administered medication process as allowed by the regulations. The Agency failed to establish that a deficiency existed in this regard or that there was a repeat deficiency. The administrator did not hire or ensure that only licensed staff administered medications. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the Agency failed to establish the identity of patient #5 whose health assessment indicated she needed her medications administered or that staff was administering medication to patient #5. As to the deficiency cited at the January 19, 1994, appraisal visit, the administrator who is not licensed to administer medication admitted to popping the medication out of individual bubble packs into individual souffle cups for several of the residents who would then take the medication or would place the souffle cups on a cabinet shelf in front of the resident's name on the shelf to be taken at a later time - such as lunchtime. The Agency failed to establish or identify which, if any, of these residents required their medication to be administered as oppose to those who could self-administer medication, with or without supervision. There was insufficient evidence to show that the administrator was administering medication. The Agency failed to established that a deficiency existed in this regard at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit. The administrator did not ensure that no prescription drug is kept by the facility unless it had been legally dispensed and labeled for the resident for whom it was prescribed. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was recited at the June 11, 1993, follow-up visit, not corrected at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the Agency has established that a month's supply of vitamins for Viola Shupp had been placed in a "daily pill container" by the resident's daughter. This "daily pill container" was placed in the same plastic box as prescription medication containers in the cabinet where the Respondent kept medication. The prescription medication containers were properly labeled with the required information. This deficiency was corrected within the time specified by the Agency for correction. As to the deficiency cited at the June 11, 1993, follow-up visit, the Agency establish that the centrally stored medication was not locked up. The Respondent admitted that the centrally stored medication included such items as vitamins, merthiolate, dramamine, Shaklee alfalfa, ointments, creams, tinctures, and two prescription medications (Synthroid, 0.5mg and Cipro) in containers with prescription labels with the required information for resident Henry Shadle. Other than the Synthroid and Cipro, none of the other containers had prescription labels. However, there was no evidence that any of the other medications (vitamins, ointments, merthiolate, etc.) were prescribed medications. None of the other medications (vitamins, ointments, merthiolate, etc.) were labeled to identify the resident owning the medication. The Agency did not advise the facility in the June 11, 1993, Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. As to the deficiency cited at the January 19, 1994, appraisal visit, the Agency has shown that five souffle cups of medication without covers or prescription labels were on a shelf in an unlocked cabinet. The souffle cups had been placed on a shelf by the patient shortly before time to take the medication after the administrator has assisted the residents in getting the medication out of bubble packs as set forth in 4(s) above. The Agency established that (1) a deficiency existed at the January 19, 1993, annual survey but was timely corrected, (2) a similar deficiency existed at the follow-up visit of June 11, 1993 and, (1) a similar deficiency existed at the annual survey of January 19, 1994. The Agency has established a repeat deficiency. The administrator did not ensure that no person other than the pharmacist shall alter a prescription label, and transfer medications from one storage container to another. Medication orders changed by the physician must be re-labeled by the pharmacist. The administrator did not make every effort to ensure that residents whose medications are supervised by the facility are refilled in a timely manner. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit. The Agency failed to advise the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. There was no evidence that any prescription label on any medication container for any resident had been altered in any fashion at any time. There were some plastic baggies containing non-prescription medication or the individual container of the non-prescription medication that had written instructions or the name of the resident on them. During the January 19, 1994, appraisal visit a plastic box was found to contain several prescription medications that were in properly labeled containers. However, there was a "daily pill container" in the plastic box which contained a month's supply of vitamins. The vitamins in the "daily pill container" had been placed there by the resident's daughter. The "daily pill container", along with the individual prescription medication containers had been placed in the plastic box and placed in the facility's medication cabinet by the resident's daughter. The Agency failed to establish or identify any medication order changed by a physician that had not been properly rebelled by the pharmacist or had been rebelled by an employee or the administrator of the facility Likewise, the Agency failed to establish or identify any resident whose medication was supervised by the facility that the administrator failed to ensure that that resident's medications were not refilled in a timely manner. The Agency failed to establish that a deficiency in this regard existed at the June 11, 1993, follow-up visit or January 19, 1994, appraisal visit. The administrator did not dispose of medications as allowed by regulations. It is alleged that this deficiency was cited in the January 19, 1993, annual survey and recited again at the June 11, 1993, follow-up visit. At the January 19, 1993, annual survey the Agency surveyor found a bottle of Tylenol that was alleged to belong to a resident that had been discharged from the facility longer than 15 days. The Agency failed to establish or identify the resident that the Tylenol belonged to or when that resident was discharged. However, the facility had disposed of the Tylenol by the March 22, 1993, follow-up visit and the Agency considered the matter corrected within the specified time the facility was allowed to correct the deficiency. As to the follow-up visit of June 11, 1993 concerning this deficiency, the Agency failed to establish or identify any resident that had been discharged from the facility whose medication had not been disposed of, or disposed of improperly by the facility. The Agency failed to establish that a deficiency existed at the June 11, 1993, follow-up visit and thereby establish a repeat deficiency. The administrator did not ensure that the facility had no stock supply of over-the-counter (OTC) medications, OTC medications are labeled as required, and supervised as ordered by the physician. The Agency failed to advised the facility in the Summary of Deficiencies of the specified time within which the facility must have the deficiency corrected. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and was not corrected at the January 19, 1994, appraisal visit. The Agency established that the Respondent did keep a stock supply of OTC medications in that such items as Tylenol, milk of magnesia, vaseline, Mylanta, Easy Lax, and other assorted OTC medications were kept in the facility without any resident's name on the medication. This deficiency still existed at the January 19, 1994, appraisal visit. Likewise, the Agency established that OTC medications were kept for residents with the resident's name on the medication in with other residents' OTC medication stored in the facility's cabinet. However, the Agency failed to establish that any of these OTC medications were not labeled as ordered by the physician or that the manufacturer's label with directions for use were not kept with the OTC medications or that the supervision of the OTC medication was not as order by the physician where there were such orders. The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January 19, 1994, appraisal visit. The facility did not employ a Consultant Pharmacist within fourteen (14) days of the documentation of an uncorrected Class III medication violation, and did not retain the Pharmacist for on-site quarterly updates until the department verified after written notification by the Administrator and Consultant Pharmacist the correction of the medication violations. It is alleged that this deficiency was cited at the June 11, 1993, follow-up visit and recited at the January 19, 1994, appraisal visit. By letter dated June 17, 1993, the Agency advised the administrator that "[b]ecause of the uncorrected and new deficiencies related to Medications according to 10A5.034 of the administrative code you are now required to employ a pharmacist consultant. The initial on site pharmacist consultant visit must take place within 14 working days and quarterly thereafter." The administrator hired a pharmacist consultant who visited the facility on July 6, 1993, this was within 14 working days allowed by the Agency. However, the consultant pharmacist was not retained after July 6, 1993. The administrator did not submit the Consultant pharmacist's quarterly corrective action plan to the Agency. After the January 19, 1994, appraisal visit, the administrator again employed a consultant pharmacist. The Agency established that a deficiency in this regard existed at the June 11, 1993, follow-up visit and was not corrected at the time of the January 1994, appraisal visit. The administrator did not ensure that opportunities are provided for social and leisure activities by planned activities. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, was not corrected at the March 22, 1993, follow-up visit and was recited at the January 19, 1994, appraisal visit. Contrary to the testimony of the Agency's witnesses, the administrator did provide the residents opportunities for social and leisure activities by planning activities. However, the administrator was limited in what could be offered in that the facility was mainly a one person operation, and the age and physical condition of the residents limited their participation to certain social and leisure activities. Also, contrary to the testimony of the Agency's witnesses, the administrator did prepare, keep and post an activities calendar - albeit not an elaborate or sophisticated one. The Agency failed to establish that a deficiency in this regard existed at the January 19, 1993, annual survey or the January 19, 1994, appraisal visit. The administrator did not develop and implement or arrange for an ongoing activities program at a minimum ten (10) hours a week, and did not ensure resident participation in the planning activities. It is alleged that this deficiency was cited at the January 19, 1993, annual survey, was not corrected at the March 22, 1993, and June 11, 1993, follow-up visits and was recited at the January 19, 1994, appraisal visit. The Agency failed to establish that the activities planned by the administrator for the residents as set out in 4(y) above did not total a minimum of 10 hours a week. The administrator had developed and implemented or arranged for an ongoing activities program and provided for resident participation in the planning activities. While the administrator's program was not elaborate or sophisticated, it met the requirements for an ACLF with a resident capacity such as Respondent's facility. (aa) The administrator did not ensure that monthly fire drills were documented. It is alleged that this deficiency was cited at the January 19, 1991, annual survey, was recited at the January 19, 1993, was not corrected at the March 22, 1993, follow-up visit, was recited at the January 19, 1994, appraisal visit and is a repeat deficiency. At the January 19, 1993, annual survey there was no documentation of monthly fire drills for the past year. At the January 19, 1994, appraisal visit, it was established that although monthly fire drills from April, 1993 through December, 1993, had been documented, the documentation did not contain the required information. The dates of the fire drills were provided. However, information specified by regulation such as time required to evacuate, location of simulated fire, fire escape paths used and notation of residents who resisted or failed to participate was not provided. The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency. (bb) The administrator did not maintain documentation available regarding the testing and operation of the smoke detectors. It is alleged that this deficiency was cited in the January 19, 1993, annual survey, recited at the January 19, 1994, appraisal visit and is a repeat deficiency. As to the deficiency cited at the January 19, 1993, annual survey, the monthly testing of smoke detectors was not documented. Smoke detectors in room #3 and the hallway were inoperable when tested by the surveyor at the January 19, 1993, annual survey. This deficiency was corrected within the time specified by the Agency. At the time of the January 19, 1994, appraisal visit the Respondent had failed to document the monthly testing of smoke detectors. The Agency established that a deficiency in this regard existed at the times alleged and is a repeat deficiency. By letter dated January 12, 1994, the Agency advised the administrator that a moratorium on admissions to the facility had been imposed effective January 10, 1994, in accordance with Section 400.415, Florida Statutes. At the time the moratorium was imposed January 10, 1994, the resident census was six. The letter of January 12, 1994, advised the administrator of the right to request a formal administrative hearing on the issue of the moratorium. The administrator made no request for a formal administrative hearing. Sometime in the latter part of June, 1994, a resident of the facility was discharged bringing the resident census to five. Shortly thereafter, on July 9, 1994, the facility admitted a new resident. Upon being advised by the Agency that the admission was in violation of the moratorium, the facility discharged the resident on August 31, 1994. It was the administrator's understanding that the moratorium was on any admissions above the resident census of six. By letter dated August 23, 1994, the Agency advised the administrator that the January 12, 1994, letter was being supplemented and amended. Among other matters, the letter advised the administrator that the moratorium would run concurrently with the facility's licensure denial and remain in effect until the denial issue was resolved. The letter also advised the administrator of the right to a formal administrative hearing. The administrator made no request for an administrative hearing. On September 9, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would remain in effect until no longer necessary, affirming the Agency's action set forth in the January 12, 1994, letter. On October 12, 1994, a Final Order was entered by the Agency imposing a moratorium effective January 10, 1994, that would run concurrently with the licensure denial and remain in effect until the denial issue was resolved, affirming the Agency's action set forth in the August 23, 1994, letter.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, concerning the imposition of a penalty, it is recommended that the Agency for Health Care Administration enter a Final Order finding the Respondent to have committed the violations set forth in paragraphs 3(b), 3(e), 3(t), 3(w), 3(x), 3(aa) and 3(bb) of the Administrative Complaint and for such violations shall pay an administrative fine of $100, $200, $300, $250, $250, $250, and $250, respectively, for a total administrative fine of $1,600, to be paid on terms the Agency deems appropriate. It is further recommended that the Agency grant the Respondent's application for renewal of its license with conditions the Agency deems appropriate, including, at the minimum, that the moratorium remain in place until such time as the Respondent employs a consultant pharmacist, on staff or by contract, and corrects the medication violations as found in this Recommended Order to the satisfaction of the Agency. RECOMMENDED this 27th day February, 1995, in Tallahassee, Florida WILLIAM R. CAVE 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 27th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5515 AND 94-4101 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in these cases. Petitioner's Proposed Findings of Fact: Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1. The introductory portion of Proposed finding of fact 2 is adopted in substance as modified in Findings of Fact 2 and 3. Proposed findings of fact 2(a), 2(c), 2(d), 2(f) through 2(r), 2(t), 2(u), and 2(x) are rejected as not being supported by the evidence in the record. Proposed findings 2(b), 2(e), 2(s), 2(v), 2(w), 2(y)and 2(z) are adopted in substance as modified in Findings of Fact 4(b), 4(e), 4(t), 4(w), 4(x), 4(aa) and 4(bb), respectively. Proposed finding of fact 3 is adopted in sustance as modified in Finding of Fact 4. Proposed finding of fact 4 is adopted in substance as modified in Findings of Fact 5, 6, 8-10. Proposed finding of fact 5 is adopted in substance as modified in Finding of Fact 7. Proposed finding of fact 6 is adopted in substance as modified in Finding of Fact 4(t). Proposed finding of fact 7 is covered in the Preliminary Statement. Respondent's Proposed Findings of Fact: 1. Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1. The balance of Respondent's proposed findings of fact are intermingled with cited rules and statutes, the allegations and argument. Some paragraphs are numbered and some paragraphs are unnumbered. Where it is possible, a response has been made to what might be considered proposed findings of fact. However, the proposed finding of fact may be one of many unnumbered paragraphs under a single number. 2. Proposed findings of fact 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 21, 23, 24, 25, 37 and 40 are adopted in substance as modified in Findings of Fact 4(c), 4(a), 4(d), 4(j), 4(b), 4(l), 4(m), 4(k), 4(n), 4(aa), 4(x)(z), 4(q), 4(n), 4(s), 4(u), 4(v), 4(g), 4(p), 4(o) and 4(u), respectively 3. Proposed findings of fact 2, 4, 26 - 30, 32, 36, 39 and 43 - 48 are either not material or relevant, or unnecessary, or subordinate, or cumulative. 4. Proposed findings of fact 16, 20, 22, 28, 31, 33, 34, 35, 38, 41 and 42 are rejected as not being supported by the evidence in the record. COPIES FURNISHED: Sam Power, Agency Clerk Agency For Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Tom Wallace, Assistant Director Agency For Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Linda Parkinson, Esquire Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801 William Witt, Esquire 4625 East Bay Drive, Suite 210 Clearwater, Florida 34624
The Issue The issues are whether Respondent, as the owner and operator of an assisted living facility (ALF), is guilty of failing to correct seven deficiencies by a followup survey conducted on July 19, 2011, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has owned and operated an ALF at 567 Northeast 137th Street. On May 26, 2011, Petitioner's surveyor conducted a survey of the ALF in connection with the renewal of Respondent's license. On July 19, 2011, Petitioner's surveyor conducted a followup survey of the ALF to determine whether Respondent had corrected the deficiencies cited in the initial survey. At the conclusion of the May 26 survey, the surveyor conducted an exit conference with Ms. Nelson. The surveyor obtained Ms. Nelson's signature to a form explanatory letter that states: The purpose of this letter is to explain the process now that the survey has been completed. During the exit conference, you . . . were advised of the deficiencies and were requested to write them down. At this time we also established time frames for the correction of each deficiency. You will receive a written report from our office of this survey. The time to correct, however, starts from today, the day of the survey. . . . It is required that each deficiency be corrected by the date established. If a deficiency is not corrected within the required time frame, the facility may be assessed an Administrative Fine by the Central Office in Tallahassee. . . . Additional time may be granted to correct specific deficiencies if a written request is received prior to the original date of correction. This written request must identify the deficiency, by tag number (refer to the deficiency report), to be extended . . .. When the written result of this visit is received, your copy of the report must be made available to the public and residents or participants according to the specific program requirements. . . . Petitioner's surveyor did not mention a deficiency report in her testimony, nor do any of the exhibits refer to or include a deficiency report. Petitioner did not refer to a deficiency report in its proposed recommended order or Administrative Complaint. The surveyor's handwritten notes for the initial survey do not include tag numbers, but her notes for the followup survey supply what appear to be tag numbers for the deficiencies. (Petitioner exhibits, pages 44-46 and 52-53.) Perhaps Petitioner generated a deficiency report after the initial survey, but there is absolutely no indication in the record that it did so or, even if it did, that it provided the deficiency report to Respondent. Interestingly, Petitioner exhibits pages 75-76 are fax cover sheets, both dated August 2, 2011, referencing an attached Form 3020, which is a deficiency report, but Petitioner exhibits omit similar cover sheets for the initial survey. Although the Administrative Complaint identifies the deficiencies for which Petitioner's surveyor cited Respondent, this pleading obviously was not available to Respondent prior to expiration of the time frames for corrections. Also, absent a copy of the deficiency report, Respondent could not obtain an extension of time to make corrections, as this request had to include the tag numbers that are included in the deficiency report, nor could Respondent comply with the directive to post the report at the facility. But the most serious problems arising from Petitioner's failure to provide Respondent with a deficiency report are that Ms. Nelson would not have known exactly what to correct (unless she is a very good notetaker) and would not have known the deadlines for correcting the deficiencies. Given the number and level of detail of the allegedly uncorrected deficiencies, it is impossible to favor Petitioner with the inference that, at the end of the initial survey, its surveyor accurately communicated all of the cited deficiencies and all of the corrective time frames, and Ms. Nelson accurately captured all of this information. As noted in the Conclusions of Law, section 408.811(4), Florida Statutes, provides for a corrective time frame of 30 days, unless Petitioner provides a longer or shorter time frame. The only mention at the hearing of any time frame for correction was the testimony of Petitioner's surveyor, who stated that she gave Respondent 30 days to apply for approval of an emergency management plan. The surveyor did not testify that a 30-day time frame applied to all deficiencies, as she easily might have done, if she had set the same time frame for all of the deficiencies; she testified that a 30-day time frame applied specifically to the requirement of submitting an emergency management plan. Even if the surveyor had testified that she had given Respondent 30 days to correct all of the cited deficiencies, this deadline could not reasonably have expired before Petitioner provided Respondent the deficiency report. The form letter warns that the corrective time frame begins from the date of the completion of the initial survey, but the form letter assumes that Petitioner will issue the deficiency report a few days later. Here, though, the corrective time frames expired before Respondent received the deficiency report, without which, as noted above, she could not even have applied for an extension of any of the corrective time frames. As discussed in the Conclusions of Law, the failure of Petitioner to prove that it provided Respondent with a deficiency report, including a detailed citation of individual deficiencies and a clear time frame for their correction, necessitates the dismissal of the Administrative Complaint. The following findings are provided in case these Conclusions of Law are ultimately not sustained. By May 26, 2011, Resident #1 had undergone a significant change while at the ALF because she had developed a stage 3 pressure wound or ulcer, her activities of daily living (ADLs) had declined, and she had been hospitalized earlier in May. However, Respondent failed to keep written records detailing any changes in the pressure wound, discussing any decline in ADLs, or explaining the reason for the recent hospitalization. By July 19, 2011, Resident #1 had been rehospitalized, but Respondent's records did not disclose why. On May 26, the bed rails were halfway up on Resident #1's bed. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. On July 19, the bed rails were halfway up on the bed of Resident #3. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. This finding is consistent with Count Two of the Final Order. On May 26, the surveyor examined the MOR for Resident #1. The allegations concerning Resident #1's MOR for the initial survey are impossible to assess because the MOR that Petitioner introduced into evidence is illegible as to critical entries. The allegations concerning Resident #2's MOR for the initial survey are unproved except for the misadministration of Simvastatin, which was to be administered once at bedtime; the initialed MOR reveals that staff observed the self- administration of this medication once in the morning and once in the evening for the entire month of May. Petitioner's failure to produce the bingo card instructions, in order to prove some conflict between them and the reprinted prescription shown for each drug on the MOR, precludes a finding of a conflict, or a finding that observing the self-administration of drugs in accordance with the reprinted prescriptions shown on the MOR was in any way incorrect. The allegations concerning Resident #3 for the initial survey are impossible to assess because Petitioner neglected to produce a copy of her MOR. On July 19, the initialed MOR for Resident #2 reveals that, by 11:35 a.m. on July 19, no staffperson had initialed the morning self-administration of Carvedilol; the morning self- administration, which was due at 8:00 a.m., should have been completed and initialed well before 11:35 a.m. As for Resident #3, Petitioner failed to prove that a staffperson initialed for observing the self-administration of Risperidone and Tramadol for noon on July 13; the indication on the MOR was that Resident #3 was not present at that time. Two staffpersons had different ways of indicating the absence of the resident, and the surveyor did not understand the manner by which one staffperson indicated absence--i.e., by initialing and then circling the initial. (Additionally, the surveyor's marks on the exhibit sometimes obscures the marking on the MOR placed by staffpersons.) However, Resident #3's MOR discloses no administrations of artificial tears in July, even though her medication was available at the ALF. These two findings are consistent with Count One of the Final Order. On May 26, Staff #3, Staff #4, and Staff #5 did not have the four hours of training required to qualify to observe the self-administration of medications. Petitioner proved that Staff #3 was hired on October 14, 2000, and Staff #4 was hired on August 10, 2009. Petitioner proved only that Staff #3 observed the self-administration of medication. The MORs for the initial survey cover nearly the entire month of May, and they bear only the initials "K" and "M"; "K" appears to be Staff #2, whose name is Kermite Jerome, and "M" appears to be Staff #3. On July 19, Staff #5 and Staff #7 did not have the four hours of training required to qualify to observe the self- administration of medications. Petitioner did not prove a hire date for Staff #7, who was newly hired. Petitioner did not prove that either Staff #5 or Staff #7 observed the self- administration of medication. The MOR's for the followup survey cover nearly three weeks of July, and they bear only the initials "K" and "L"; the "L" is Ms. Nelson. On May 26, Respondent did not have a dated and planned menu posted at least one week in advance. On July 19, Respondent did not have a dated and planned menu posted at least one week in advance. On May 26, Respondent did not maintain a dated, signed contract for Resident #1, nor a signed contract for Resident #3. On July 19, Respondent did not maintain a signed contract for Resident #3. On May 26, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. On July 19, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. This finding as to July 19 is consistent with Count 3 of the Final Order.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of February, 2013. COPIES FURNISHED: Leonie Nelson L and B Solutions Care, Inc. 567 Northeast 137th Street Miami, Florida 33161 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Julie Arrendell Qualified Representative 13899 Biscayne Boulevard, Suite 101 North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact The Parties. The Respondent, the Department of Health and Rehabilitative Services, is a state agency charged with the responsibility for administering Florida's Medicaid program pursuant to Chapter 409, Florida Statutes. The Petitioner, Conval-Care, Inc., is a home health care agency of the State of Florida. Conval Care was created by Inez Browning in 1983. Conval Care is a Small Business Party. Conval Care has never employed twenty-five or more full-time employees. Conval Care's net worth has never equaled or exceeded $2,000,000.00. Medicaid Services Provided by Conval Care to Adult Congregate Living Facilities. In 1988, Conval Care qualified as a provider of medical services reimbursable pursuant to Florida's Medicaid program. Subsequent to becoming a Florida Medicaid provider, Conval Care began providing home health services to, among others, residents of three adult congregate living facilities (hereinafter referred to as an "ACLF"). Conval Care received Medicaid reimbursement for the services it provided to residents of the three ACLF's it serviced. Department Concerns About Services Provided to Residents of ACLFs by Home Health Care Agencies. Prior to May 1, 1991, various employees of the Department discussed various issues concerning the appropriateness of Medicaid reimbursement for services provided by home health care agencies to residents of an ACLF. At no time relevant to this proceeding did the Department conclude that under no circumstances would it be appropriate to make Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF. To the extent that the Department had unresolved legal questions concerning the appropriateness of paying Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF, it would not be reasonable for it to take action against Conval Care, or any other home health agency, based upon those unresolved legal questions. The evidence in this case, however, failed to prove that the actions which the Department ultimately took against Conval Care were based upon unresolved legal questions being discussed by the Department. The Department's Medicaid Program Integrity Office. The Department's Medicaid Program Integrity office is charged with responsibility within the Department for overseeing the integrity of the Florida Medicaid program. See Section 409.206, Florida Statutes (1989). The Department's Medicaid Program Integrity office carries out the Department's responsibility for review of the Medicaid program, including fraud investigations. Rule 10C-7.060(3), Florida Administrative Code, provides the following: Any suspected criminal violation or fraudulent activity by any provider shall be referred by the department to the Medicaid Fraud Control Unit in the Office of the Auditor General for investigation. Rule 10C-7.060(5), Florida Administrative Code, provides the following: (5) The determination that a violation has occurred is a function of the Medicaid Program Integrity Office. The determination shall be based upon investigations completed by that office or relevant information from other offices and agencies. Based upon Rule 10C-7.060(5), Florida Administrative Code, the Department is charged with the ultimate responsibility for determining if a violation of Medicaid law has occurred. Therefore, it would be unreasonable for the Department to take action against a Medicaid provider based upon the conclusions of any other agency without independent evaluation by the Department. Rule 10C-7.060(5), Florida Administrative Code, also requires that the Department, in determining whether a violation of Medicaid law has occurred, base its decision on its own investigation or "relevant information from other offices and agencies." The Department is, therefore, required to consider information provided to it by the Medicaid Fraud Control Unit of the Office of the Auditor General. Rule 10C-7.060(4), Florida Administrative Code, provides the circumstances pursuant to which the Medicaid Program Integrity office may impose administrative sanctions on providers of Medicaid services in Florida. The specific administrative sanctions which may be imposed, and the procedures to be followed, in imposing sanctions are set out in Rule 10C-7.060, Florida Administrative Code. "Guidelines for Administrative Sanctions" are set out in Rule 10C-7.063, Florida Administrative Code. The Medicaid Fraud Control Unit. The Medicaid Fraud Control Unit (hereinafter referred to as "Medicaid Fraud"), is a part of the Florida Office of the Auditor General. See Section 409.2664, Florida Statutes (1989)(repealed effective June 5, 1991, Chapter 91- 282, Laws of Florida). Section 409.2664, Florida Statutes (1989), provided, in pertinent part, the following: . . . the Auditor General shall: Investigate the possible criminal violation of any applicable state law pertaining to fraud in the administration of the Medicaid program, the provision of medical assistance, or the activities of providers of health care under the state Medicaid program. . . . . Refer to the Department of Health and Rehabilitative Services all potential noncriminal abusive activities. Refer to the Department of Health and Rehabilitative Services for collection all instances of overpayment, discovered during the course of investigation, made to any providers of health care under the state Medicaid program. . . . . Pursuant to Section 409.2664, Florida Statutes, investigative reports prepared by Medicaid Fraud are routinely referred to the Department's Medicaid Program Integrity office. The Medicaid Program Integrity office routinely relies on investigative reports prepared by Medicaid Fraud. The Investigation of Conval Care. Ellen Williams, a medical health care program analyst for the Medicaid Program Integrity office, first became aware of Conval Care in January or February, 1990, while Ms. Williams was reviewing a "Provider Top 100 Report." A "Provider Top 100 Report" is a report prepared by the Department on a routine basis which lists the top 100 providers of Medicaid services based upon the amount of Medicaid funds a provider is paid. The Provider Top 100 Report reviewed by Ms. Williams in early 1990 listed Conval Care as the top home health care services' provider for the first time. Ms. Williams had not seen the name Conval Care before on the list. Ms. Williams was curious about why Conval Care had appeared on the list. Ms. Williams decided to look into the matter further. Ms. Williams subsequently learned that Medicaid Fraud was involved in an investigation of Conval Care. Ms. Williams, therefore, discontinued her investigation of Conval Care. Ms. Williams referred the matter to Medicaid Fraud in March, 1990, as contemplated by Section 409.2664, Florida Statutes, and Rule 10C-7.060(3), Florida Administrative Code. The May 1, 1991, Investigative Report. At some time after May 1, 1991, Ms. Williams received an unsigned Investigative Report dated May 1, 1991, from Medicaid Fraud (hereinafter referred to as the "Investigative Report"). Respondent's exhibit 1. The Investigative Report includes conclusions concerning various possible violations of Medicaid laws which may have been committed by Conval Care. In support of those alleged violations, the Investigative Report also includes fairly substantial factual bases for the violations. The evidence in this case failed to prove that the facts recited in the Investigative Report, if proved to be true, would not support a finding that Conval Care had committed serious violations of various Medicaid provisions. In particular, the Investigative Report concludes that Conval Care has served patients, who reside in and out of ACLFs, that were not "homebound" as required by the Medicaid providers' manual. The Investigative Report also concludes that Conval Care provided services which were rendered "while no valid signed physician's authorization was in effect . . . " as required by the Medicaid providers' manual. Further, the Investigative Report concludes that Conval Care provided services which were not "medically necessary". The facts relied upon by Medicaid Fraud to reach these conclusions are set out in the ten page Investigative Report. The Investigative Report concludes that Conval Care improperly received $591,082.00 from Medicaid for services to individuals (ACLF residents and non-ACLF residents). It also concludes that $241,582.00 of the $591,082.00 were improperly received for services that were rendered while no valid signed physician's authorization was in effect and the remaining $349,500.00 was improperly received for services that were not "medically necessary". The Department's Reliance on the Investigative Report. Based upon a review of the Investigative Report, Ms. Williams applied the provisions of Rule 10C-7.063, Florida Administrative Code, to determine the appropriate administrative sanction to be imposed on Conval Care. The weight of the evidence proved that the Department properly applied the provisions of Rule 10C-7.063, Florida Administrative Code. Based upon Ms. Williams determination of the appropriate administrative sanction to be applied to Conval Care, Ms. Williams prepared a draft of a letter which she recommended the Department send to Conval Care. The draft letter prepared by Ms. Williams and the Investigative Report were reviewed by appropriate officials of the Department. The draft letter was ultimately approved. Ms. Williams, and the Department's, only basis for the action the Department took against Conval Care was the Investigative Report. Ms. Williams also relied on an investigation of what appeared to be a similar home health care agency named Underhill Personnel Services (hereinafter referred to as "Underhill"). Underhill, another home health care agency, was providing home health care services to residents of ACLF's. The services being provided by Underhill were similar to the services reported in the Investigative Report. Ms. Williams, however, had no independent basis for concluding what services Conval Care was, or was not, providing to ACLF's except as reported in the Investigative Report. The Investigative Report was an interim report. The Department was informed in July, 1991, that Medicaid Fraud's investigation of Conval Care was still ongoing. The evidence failed to prove that the conclusions recited in the Investigative Report, however, were of an interim nature or that the Department should have waited to act on the facts related in the Investigative Report. The Termination Letter. The draft letter prepared by Ms. Williams and approved by the Department was dated May 20, 1991, was signed by John M. Whiddon as Chief of the Department's Medicaid Program Integrity office and was sent to Conval Care (hereinafter referred to as the "Termination Letter"). The Termination Letter informed Conval Care that its participation in the Medicaid program in Florida was being terminated "for violation of federal and state laws and regulations respecting the Medicaid program, effective on the date of your receipt of this letter, subject to your right of appeal as discussed below." The Termination Letter also informed Conval Care that the Department was seeking reimbursement of $591,082.00 in Medicaid funds paid to Conval Care which the Department believed were for services that did not constitute "home care" as defined in Section 11.3 of the Medicaid Home Health provider handbook. The Termination Letter further informed Conval Care of the following: $349,500.00 (of the $591,092.00) had been paid to Conval Care for services that were not "medically necessary" as required by Rules 10C- 7.044(1)(e) and (i), (5)(a)3 and (14), Florida Administrative Code; $241,582.00 (of the $591,092.00) had been paid to Conval Care for services that were rendered while no valid signed physician's authorization was in effect in violation of Rules 10C-7.044(1)(e) and (i) and (5)(a)1-2, Florida Administrative Code; The Department, in addition to terminating Conval Care's participation in the program, was seeking reimbursement of the $591,092.00 overpayment and imposing an administrative fine of $5,000.00; and No further Medicaid payments would be made to Conval Care. The information contained in the Termination Letter was taken by Ms. Williams from the Investigative Report. For some reason which has not been explained in this case by either party, the Department did not inform Conval Care in the Termination Letter that the $591,092.00 reimbursement was also being sought by the Department because the persons who received the services were not "homebound", as concluded in the Investigative Report, even though Ms. Williams agreed with the conclusions of the Investigative Report concerning the fact that the recipients of services were not homebound. After Conval Care received the Termination Letter, the Department stopped all Medicaid payments to Conval Care. As a result, Conval Care closed within three months after receiving the Termination Letter. The Department should have been aware of this possible consequence. The weight of the evidence in this case failed to prove that the conclusions reached by the Department concerning possible violations of Medicaid law by Conval Care as set out in the Termination Letter were not reasonably supported, both factually and legally, by the allegations contained in the Investigative Report. If the alleged facts contained in the Investigative Report proved to be true, it cannot be concluded that the acts which the Department concluded Conval Care may have committed were not in fact violations of Medicaid law. Conval Care's Attempts to Obtain Advice. Prior to receiving the Termination Letter, but after the investigation of Conval Care had begun, Inez Browning, the President of Conval Care, attempted to discuss the propriety of providing Medicaid services through Conval Care to residents of ACLFs. Ms. Browning contacted several Department employees, including Ms. Williams, to discuss the matter. The only concern expressed by Department employees to Ms. Browning about the propriety of a home health care agency providing Medicaid services to residents of an ACLF in response to her inquiries involved the unavailability of Medicaid funds to cover such services. In light of the fact that the Department was aware that there was an ongoing criminal investigation of Conval Care by Medicaid Fraud, the evidence failed to prove that the Department's actions in failing to warn Ms. Inez of any potential violations Conval Care may have been committing was unreasonable. The Prosecution of the Termination Letter. After receiving the Termination Letter, Conval Care filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest the proposed actions of the Department expressed in the letter. Conval Care's request for hearing was filed by the Department with the Division of Administrative Hearings in June, 1991. The matter was designated case number 91-4020 and was assigned to the undersigned. Between June, 1991, and December, 1991, the parties pursued discovery and began preparations for the formal hearing in case number 91-4020. On December 18, 1991, the parties requested that case number 91-4020 be continued to give the parties an opportunity to pursue a possible settlement of their dispute. Case number 91-4020 was continued from December, 1991, until March, 1992. On March, 18, 1992, a Fourth Notice of Hearing was entered rescheduling the final hearing of case number 91-4020 for July 27-31, 1992. Between March, 1992, and July, 1992, discovery continued in case number 91-4020. On July 14, 1992, the Department filed a Motion for Leave to Amend Termination Letter and an Amended Termination Letter. In the Amended Termination Letter, the Department, for the first time, attempted to raise the issue of whether certain recipients of care provided by Conval Care were "homebound". The Department also attempted to add three other "counts" which Conval Care had not previously been put on notice of. The Department's effort to amend the Termination Letter, in light of the fact that it had been over a year since the original Termination Letter had been issued, and the fact that the final hearing of case number 91-4020 was scheduled for the week after the request to amend was filed, was denied. The Department requested, and was granted, a continuance of the final hearing scheduled to commence July 27, 1992, due to the hospitalization of counsel for the Department in case number 91-4020. The hearing was rescheduled to commence August 7, 1992. On August 5, 1992, only two days before the scheduled commencement of the final hearing in case number 91-4020, the Department filed a "Notice of Voluntary Dismissal". After the undersigned informed the Department that it was not in a position to "voluntarily dismiss" case number 91-4020, the Department informed the undersigned that the filing of the Notice of Voluntary Dismissal by the Department was intended as a notice of withdrawal of the Termination Letter by the Department. Therefore, an Order Closing File in case number 91-4020 was entered on August 13, 1992. The Department's compliance with discovery requests of Conval Care during the pendency of case number 91-4020, was less than adequate. On more than one occasion, it was necessary to order the Department to respond to reasonable discovery requests of Conval Care. While the Department's failure to reasonably respond to discovery requests may suggest a lack of evidence to support the Department's actions, the evidence failed to support a finding that there were not other reasons for the Department's actions. The evidence also proved that there were indications to the Department during discovery in case number 91-4020 that there could be problems with some of the facts of the Investigative Report which had been relied upon by the Department. Those problems and alleged problems which Conval Care has suggested in Conval Care's proposed final order in this case are not, however, sufficient to prove that the Department should have known that the alleged facts of the Investigative Report it had relied on in issuing its Termination Letter were insufficient to continue to pursue the charges it had made in case number 91- 4020. The weight of the evidence in this case, including the file in case number 91-4020, failed to prove why the Department chose not to pursue the charges of the Termination Letter. The evidence failed to prove that the Department "knew by [the time it withdrew the Termination Letter] that it couldn't win."
