The Issue The issue is whether Norwood Pines' annual licensure to operate an adult congregate living facility should be renewed. The Department denied renewal because of repeated failures to correct deficiencies at the facility, and due to the necessity to impose a moratorium on admissions on March 31, 1989, due to conditions at the home which threatened the health, safety, and welfare of residents.
Findings Of Fact Norwood Pines had been licensed as an Adult Congregate Living Facility (ACLF) under the "Adulte Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. It had a licensed capacity of four beds. A survey of Norwood Pines was conducted by Lorraine Grissom, a registered nurse who serves as a senior community health nursing consultant for the Department. She regularly conducts ACLF licensure surveys. An ACLF is a home which provides housing, food service, and personal services for adults, which may include limited nursing services when the home is specifically licensed to do so. Section 400.402(2), Florida Statutes. An ACLF license is good for only one year. Section 400.417(1), Florida Statutes. At the time of the survey on March 31, 1989, four elderly women resided at the Norwood Pines ACLF: J.M., R.R., B.A.; and a fourth resident whose condition is not at issue in this proceeding. The home had been established by David Winfrey, and his wife, Barbara Winfrey, who is a registered nurse. Barbara Winfrey had been involved in the operation of the facility but had turned over responsibility for the ACLF to Mr. Winfrey. At the time of the survey on March 31, 1989, she was but of town, out of touch, and unavailable to consult with the aide at the home about problems with any of the residents. On her first visit Ms. Grissom observed one of the aides at the home was under the influence of come substance (whether alcohol or drugs could not be readily determined). The aide's gait was unsteady (she stumbled several times), her speech was slurred, and the content of her conversation was disorganized. The aides had never been given written job descriptions outlining their duties and responsibilities in providing personal care to the residents. Two residents at the ACLF were inappropriate for ACLF care. J.M. was incontinent, confused, and needed care beyond that which Norwood Pines was able to provide. Rule 10A- 5.0181(3)(a)1.e., Florida Administrative Code. B.A. was confused and disoriented; would wander outside in the rain, needed to be watched constantly; and needed to have drugs administered, because she was too disoriented to medicate herself. Rule 10A- 5.018(2)(a)4.c., Florida Administrative Code. B.A. was so disoriented that in case of fire she could not preserve herself or follow directions. Rule 10A-5.0181(2)(a)4.f., Florida Administrative Code. Food service at the home was inappropriate in that menus had not been dated and planned one week in advance, and menus were not followed in the preparation and service of food. Mr. Winfrey did not contest this survey finding, although he did maintain that residents got enough to eat. The administration of medications to residents was a severe problem at the home. There were problems with the supervision of administration of medications, the maintenance of proper medication records, and proper storage and labeling of medications. If a resident is fully capable of taking her own medication, she may purchase and maintain in her own room over- the-counter drugs such as aspirin or rolaids without a prescription, and without the necessity of a label showing the name of the resident, the name of the prescribing M.D. and instructions for the use of the medication. If the facility undertakes the responsibility for supervision of self- administered medications, staff must read the medication label to the resident when it is taken, check self-administered dosages against the label of the container, and assure that resident obtains and takes the dosage prescribed. Rules 10A-5.013(2)(jj) and 10A-5.024(1)(c), Florida Administrative Code. Medicines may be centrally stored but medicines so stored must be kept locked. Rule 10A-5.0182(3)(a)4.a., Florida Administrative Code. Resident R.R. was seen removing Excedrin from an unsecured cabinet in violation of the rule. The centrally stored medicines were not labeled with the name of the resident, the dose, the M.D. who prescribed it, and the directions for use, in violation of Rule 10A-5.0182(3)(a)5., Florida Administrative Code. A medication sheet was not kept for the medication administered to residents, contrary to Rule 10-5.024(1)(c), Florida Administrative Code. For example, resident R.R. had a prescription for 30 Tylenol #3 tablets filled on March 25, 1984. Although 5 tablets were left in the bottle on March 31, 1989, there is no indication on her medication sheet that she had been provided those tablets. This violates Rule 10A-5.0182(3)(b)2.h. and (c)1., Florida Administrative Code. In addition, there was no indication that Peri- Colace, which had been ordered by a physician for resident J.M., had been given. Staff advised Ms. Grissom that J.M. had not been given the medicine during the month of March because J.M. could not swallow it. This information was not given to J.M.'s physician. As a result, J.M. became impacted with feces. Staff was then instructed to administer Ex-lax to J.M. without a physician's order, and not to document its use on the medication sheet for J.M. Staff also gave J.M. a Fleet enema, without a physician's order. This was not proper treatment for the impaction. As a result of the impaction, JAM. had refused to eat for 2-3 days, was lethargic and was aspirating mucus. She also had difficulty breathing. The aide did not notify J.M.'s physician of this, even though her condition was a significant deviation from J.M.'s normal state of health, in violation of Rule 10A-5.0182 (1)(d), Florida Administrative Code. Resident B.A. needed to have her medication actually administered to her, rather than having supervision in taking her own medication. Staff at an ACLF may administer medication to a resident if there is a licensed RN or LPN on staff. There was no nurse at Norwood Pines to administer medication; it was done by an untrained, unlicensed aide, in violation of Rule 10A-5.0182(3)(b) and (c), Florida Administrative Code. This is especially significant because the medications involved were psychotropic drugs such as Mellaril, which the doctor ordered to be administered on an "as needed" basis for depression. This medication was given daily, because the aide did not know how to recognize behaviors which show that it was needed, something which a LPN or RN could be trained to recognize. Daily administration of Mellaril is dangerous, and contrary to the physician's instructions. The side effects of Mellaril can be severe shaking and involuntary movements, which is a particularly high risk for elderly persons, and can be irreversible. Other drugs which did appear on the medication sheets for patients on March 31, 1989, such as Lanoxin, and Haldol were not in the ACLF and therefore could not be administered as required. These violations found on March 31, 1989, had been brought to the attention of the Administrator before. Unlabeled medications, use of unlicensed staff to give medication and the lack of health assessments had been cited as deficiencies on the October 22, 1988, survey. Ms. Grissom returned on May 31, 1989, for a follow- up survey to see whether the deficiencies identified on March 31, 1989, had been corrected. All of the deficiencies remained uncorrected, including those related to proper storage, labeling, recording and supervision of the administration of medication; to the criteria for retaining residents at the home; to staff awareness of health and well-being of residents; and to provision of appropriate staff and food service. The Administrator, Mr. Winfrey, did not contest that these deficiencies had not been corrected on May 31, 1989. On May 31, 1989, Mellaril was still being given to R.R. by an untrained, unlicensed aide when the physician required that it be given on an "as needed" basis. Five hundred milligrams of calcium was being given to R.R., although the medication was unlabeled, and there was no doctor's order to provide it. A doctor had ordered that potassium be given to B.A. with plenty of water and with food, but she was given only a small amount of orange juice in a four ounce cup with the potassium. Ms. Grissom explained that it is dangerous to give potassium in a manner other than as ordered to patients with heart problems such as B.A. The medication records did not show that two other medications given for heart disease, Lanoxin and Lasix were being given daily as prescribed. B.A. was still a resident at the home on May 31, 1989, though she was still so disoriented that it was inappropriate for her to be in an ACLF. B.A. was only transferred to a facility appropriate for her care after Ms. Grissom made another visit on October 30, 1989. On May 31, 1989, staff was still unable to perform duties and ensure proper care of residents because the untrained aide was still responsible for administering psychotropic medications to residents. A final appraisal of the home was done on October 30, 1989, by Ms. Grissom. At that time, untrained, unlicensed staff was still administering medications and admitted doing so. As noted above, B.A. who was an inappropriate client, still resided at the facility. Medication records were still as inaccurate as they had been on March 31 and May 31, 1989. The daily records were not being kept as medications were given. When Ms. Grissom asked the aide for the resident's files, the aide brought menus. In short, the aide was unprepared to do those things expected of her. Health assessments for the residents were not available, although the facility had been cited for this deficiency in the October 28, 1988, survey. By the October visit, Haldol had been ordered for B.A. by her physician, to be administered "as needed," but was given as a regular dose. Mellaril, another dangerous drug, had been ordered to be given up to three times a day as needed for depression to R.R., but it was given three times a day as a regular dose, even though R.R. showed no signs of depression. None of the findings about the October 30, 1989, were controverted by Mr. Winfrey. As a result of the March 31, 1989, survey a moratorium on admissions was imposed at the Norwood Pines ACLF due to conditions which threatened the residents' health, safety, and welfare. Norwood Pines did not appeal the moratorium.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the request of Norwood Pines for a renewal license to operate an Adult Congregate Living Facility. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-4346 The substance of the proposals submitted by the Department have been accepted. No proposed findings of fact were submitted by Norwood Pines. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128 David G. Winfrey Norwood Pines 19021 Northwest 10th Street Miami, Florida 33169 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
The Issue The issues are whether, contrary to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070, Respondent has committed violations in core- competency training for nine employees (Eula Brown, Natasia Bernard, Lorine Smiley-Lewin, Taneish Mayers, Irene Thompson, Therese Etienne, Adrae McCalla, Marline Ford, and Cynthia Phinn), "medication administration/validation training" for seven employees (Ms. Bernard, Ms. Smiley-Lewin, Ms. Mayers, Ms. Thompson, Ms. Etienne, Ms. Ford, and Ms. Phinn), service authorizations for two consumers (J. B. and L. H.), and Level 2 background screening and HIPAA training for one employee (Ms. Ford). If Respondent is guilty of any of these violations, an additional issue is the fine that should be imposed.
Findings Of Fact At all material times, Respondent owned half of the shares of Glory House USA, Inc., which, for ten years has operated one or more group homes for the developmentally disabled. At all material times, Respondent has been a Medicaid provider of services under the Florida developmental disabilities waiver program. For 2011, Respondent received $790,367.16 in Medicaid reimbursements for services provided to Medicaid consumers. At all relevant times, Respondent has been subject to a Medicaid Provider Agreement. In this agreement, Respondent agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. In particular, Respondent agreed to comply with Petitioner's Medicaid handbooks. On September 29, 2011, Petitioner's inspectors conducted an unannounced inspection of Glory House. During the course of the inspection, Petitioner's inspectors spoke to Respondent's home manager, who answered the inspectors' questions, supplied all of the requested documents that were readily available, and took the inspectors on a tour of the facility. The Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook issued by Petitioner, effective May 2010 (Medicaid Handbook) Appendix A identifies the assurances required by Petitioner and the Agency for Persons with Disabilities (APD) of providers of services under the Developmental Disabilities Home and Community-Based Services Waiver. Appendix A Section 2.1 imposes specific training requirements on providers and their employees. Appendix A Section 2.1.G imposes the requirement of core competency training upon "[a]ll direct service providers . . . within 90 days of employment." As of the date of the inspection, seven employees, who had been employed by Respondent's corporation for over 90 days, had not completed direct-care core competency training: Ms. Brown, Ms. Bernard, Ms. Smiley-Levin, Ms. Mayers, Ms. Thompson, Ms. Etienne, and Ms. Phinn. Petitioner has thus proved seven of the nine alleged violations of this training requirement. Respondent's corporation employed Ms. Ford in July 2011, so she was still in her first 90 days of employment at the time of the inspection and was not yet required to have completed her core competency training. Petitioner seems to have relied on an earlier date shown in Petitioner Exhibit 3, but this date purports to show the date of the employee's application, not the date of hire. The only evidence of Ms. Ford's hire date is the testimony of Respondent's daughter, who is the assistant administrator, and she places the date of hire in July 2011. Ms. McCalla had completed the required training prior to the site inspection. Certificates documenting this training show that Ms. McCalla completed the APD Core Competency Training I on September 14, 2006, and APD Core Competency Training II on September 19, 2006. For the two reasons noted in the Conclusions of Law, it is irrelevant that Respondent may not have provided the certificate to the inspectors at the time of the inspection, so the Administrative Law Judge declines to make a finding of fact on whether Respondent provided these certificates to Petitioner at the time of the inspection or within the 15 additional days allowed by the inspector for the provision of documents, as noted below. On the other hand, Respondent's argument that core competency training was only required of employees providing unsupervised direct care to consumers is unsupported by the above-cited provision of the Medicaid Handbook. The allegation as to "medication administration/validation training" is a composite allegation. As noted in the Conclusions of Law, certain employees of providers must undergo medication administration training and validation; these are separate requirements. Also, there is no requirement of "validation training," as suggested by Petitioner's allegation. As of the date of the inspection, six of the seven named employees had completed medication administration training. Ms. Ford was the only employee who had not completed medication administration training, but she did not, at the time, administer medication to consumers or supervise their self-administration of medication. As explained in the Conclusions of Law, the Administrative Law Judge has rejected Petitioner's claim that Respondent had to affirmatively designate those employees who were not allowed to administer medications or supervise the self-administration of medications, so the Administrative Law Judge declines to make a finding of fact on whether Respondent so designated any such employees. Petitioner has thus failed to prove any of the seven alleged violations of this training requirement. As of the date of the inspection, three of the seven named employees had current validations for medication administration: Ms. Mayers, Ms. Etienne, and Ms. Phinn. (Like Ms. Ford, though, Ms. Etienne did not, at the time, administer medication to consumers or supervise their self-administration of medication, so Petitioner's proof as to Ms. Etienne fails on two grounds.) Because, as noted above, Ms. Ford was not designated to administered medications or supervise the self- administration of medications, Petitioner has thus proved three of the seven alleged violations of the validation requirement: Ms. Bernard, Ms. Smiley-Lewin, and Ms. Thompson lacked the required validations. As of the date of the inspection, one employee--the peripatetic Ms. Ford--had not completed HIPAA training. However, the record fails to establish the specific details of this requirement. In its proposed recommended order, Petitioner has relied on two documents: the Non-Institutional Medicaid Provider Agreement (Petitioner Exhibit 1, p. 16), which states only: "The provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statement of policy applicable to the Medicaid program, including the Medicaid . . . Handbooks . . . "; and the Medicaid Handbook, which states: Florida Medicaid has implemented all of the requirements contained in . . . HIPAA. [A]ll Medicaid providers, including their staff . . ., must comply with HIPAA privacy requirements. Providers who meet the definition of a covered entity according to HIPAA must comply with HIPAA Electronic Data Interchange (EDI) requirements. . . . For the reason noted in the Conclusions of Law, Petitioner has failed to prove its alleged HIPAA-training violation. As of the date of the inspection, Ms. Ford had submitted unspecified documentation sufficient to allow the Department of Children and Family Services (DCF) to issue a letter, dated June 29, 2011, documenting "the final results of a criminal history records check received by [DCF], required by Florida Statute for the below stated program," which is noted as an "APD Foster/Group Home." The letter further states: "[DCF] received the complete criminal history records for [Ms. Ford]. Nothing was found in the Department's review that disqualifies the individual from serving in the program . . . for which this screening was requested and is required by law." The letter adds that "[t]his screening remains valid for five years providing the applicant does not have a 90 day break in service " The Medicaid Handbook, at page 55, states: Direct service provider applicants must comply with the requirements of a level 2 screening in accordance with section 435.04, F.S. Compliance with this requirement may be accomplished through one of two ways: ?Background screening pursuant to s. 393.0655, F.S., or Applicants must submit a fingerprinting card, an affidavit of good moral character, a caretaker information sheet, and a check . . . to DCF for processing. . . . The results of this screening will be submitted with the Medicaid enrollment application. ?Background screenings pursuant to section 409.907, F.S. Applicants must submit a fingerprint card with the Medicaid Enrollment Application and a check made payable to the Medicaid fiscal agent for processing; or, if available, the applicant may submit the screening through an approved live scan location. Screening is performed at the time of enrollment and every five years thereafter. It is the responsibility of the applicant or provider to ensure this request for screening or rescreening is submitted for processing in a timely manner. Assuming that the cited provisions impose any duty upon Respondent beside ensuring that the employee or prospective employee timely submits her request for screening or rescreening, it is difficult to understand how Ms. Ford's screening document fails to satisfy the second alternative in the first bulleted paragraph. It certainly appears that Ms. Ford submitted the required items to DCF for processing, and DCF found nothing to prevent her employment at Glory House. Further confirming its responsiveness to the screening requirement in the Medicaid Handbook, the DCF letter even notes that it is good for five years. Petitioner has thus failed to prove its alleged screening violation. Medicaid Handbook Appendix A Section 3.6.E states that a provider may "[b]ill for only those services for which an approved service authorization has been received. Copies of service authorizations shall be kept on file by the provider and shall be made available to APD, [Petitioner], or their authorized representatives for monitoring purposes." As of the date of the inspection, L. H. and J. B. had current service authorizations. The terms of these authorizations were July 1, 2011, through June 30, 2012. Petitioner has thus failed to prove the two service authorization violations. By letter hand delivered to the home manager on September 29, 2011, Petitioner provided Respondent with an additional 15 days to provide, among other things, all employee records, including level 2 background screens. The letter is not free from ambiguity, largely because it is a form for use in a Medicaid-overpayment case that, in this case, covers a list of items that Respondent needed to provide Petitioner following the inspection. In any event, the letter cannot be interpreted as extending the time for compliance with the underlying requirements. In other words, if an employee obtained a medical administration validation on October 5, 2011, it would not obviate the violation. As the Administrative Law Judge noted at the hearing, such an interpretation of the letter would enable providers to ignore many Medicaid program requirements until Petitioner conducted an inspection and then avoid any sanctions by belatedly coming into compliance--after the inspection uncovered violations. There is no indication of prior offenses by Respondent under the Medicaid program. Thus, as defined in the rule discussed in the Conclusions of Law, the ten proved violations all are a first offense for the purpose of identifying the proper fine per violation.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of seven violations of the core competency training requirement and three violations of the medication administration validation requirement and imposing a fine of $10,000. DONE AND ENTERED this 12th day of July, 2012, 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 12th day of July, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 jeffries.duvall@ahca.myflorida.com Randy A. Fleischer, Esquire Randy A. Fleischer, P.A. 8258 State Road 84 Davie, Florida 33324 randy@igc.org Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
