The Issue The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).
Findings Of Fact Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether Emergency Rule 10CER89-21 and an amendment of Rule 10C-7.0482, Florida Administrative Code, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact The Parties and The Petitioners' Standing. The Petitioners, Hillhaven, United, Diversicare, HCRA, Americare and Waverly, are providers of long-term care services to elderly and disabled persons including Medicaid recipients. (S.F. 1). Petitioners have standing to raise their respective claims in this matter. (S.F. 38). The Department is an agency of the State of Florida. The Department is responsible for administering the Florida Medicaid program. (S.F. 3). The Federal Medicaid Program. General. Title XIX of the Social Security Act, codified at 42 U.S.C. 1396-1396s, and commonly referred to as the Medicaid Act, is a cooperative federal-state program. Under the Medicaid program, the federal government provides matching funds to states to help them provide their needy residents with necessary medical services. (S.F. 1). State Participation in the Program. State participation in the Medicaid program is not mandatory. A state which opts to participate, however, must submit to the Health Care Financing Administration (hereinafter referred to as "HCFA") of the Department of Health and Human Services (hereinafter referred to as "HHS") a "state plan for medical assistance" which meets all relevant federal requirements. 42 U.S.C. 1396a. (S.F. 2). Once HCFA approves a state's plan, that state is entitled to federal financial participation (hereinafter referred to as "FFP"), which means that HHS pays the state a certain percentage of amounts expended under the plan. 42 U.S.C. 1396b. The state must then administer the program in accordance with federal law, regulations and the approved state plan. 42 U.S.C. 1396c. (S.F. 2). Each state that participates in the Medicaid program must designate an agency to implement the Medicaid program in that state. 42 U.S.C. 1396(a)(5) and 42 C.F.R. 431.10. The state agency designated is not allowed to delegate its authority to administer or supervise the state plan. 42 C.F.R. 431.10(e). Amendment of a State Medicaid Plan. The mechanism for amending a state's Medicaid plan is set forth in 42 C.F.R. 447.256(c) and 430.20. (S.F. 10). In pertinent part, 42 C.F.R. 447.256(c), provides: A state plan amendment that is approved will become effective no earlier than the first day of the calendar quarter in which an approvable amendment is submitted in accordance with [42 C.F.R.] 430.20 and 447.253. In pertinent part, 42 C.F.R. 20(b)(2), provides that "[f]or a plan amendment that changes the State's payment method and standards, the [effective date] rules of [42 C.F.R.] 447.256 apply." The requirements for public notice of a proposed amendment to a state's Medicaid plan are set forth in 42 C.F.R. 447.205. (S.F. 11). The notice, pursuant to 42 C.F.R. 447.205(c), must include: Describe the proposed change in methods and standards; Give an estimate of any expected increase or decrease in annual aggregate expenditures; Explain why the agency is changing its methods and standards; Identify a local agency in each county (such as the social services agency or health department) where copies of the proposed changes are available for public review; Give an address where written comments may be sent and reviewed by the public; and If there are public hearings, give the location, date and time for hearings or tell how this information may be obtained. One of the requirements for federal approval of an amendment to a state plan is the requirement that the state provide payment rates in compliance with the "Boren Amendment", 42 U.S.C. 1396a(a)(13), and make findings and submit assurances to HCFA that: The Medicaid agency pays for . . . long-term care facility services through the use of rates that are reasonable and adequate to meet the costs that must be incurred by efficiently and economically operated providers to provide services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. 42 C.F.R. 447.253(b)(1). The Medicaid Program in Florida. Florida's Participation. Florida participates in the Medicaid program pursuant to Section 409.266, Florida Statutes, and the Florida Title XIX Long-Term Care Reimbursement Plan (hereinafter referred to as the "Florida Medicaid Plan"). (S.F. 3). The Department is the agency responsible for administering the Florida Medicaid Plan. The Florida Medicaid Plan authorizes payments for nursing home services provided to eligible individuals in accordance with Medicaid regulations. (S.F. 3). Adoption and Approval of a Medicaid Plan. The Florida Medicaid Plan as revised January 1, 1988, was submitted by the Department to HCFA in accordance with 42 U.S.C. 1396A. The Department provided assurances to HCFA that Medicaid reimbursement rates under the January 1, 1988 Florida Medicaid Plan were reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities. See 42 U.S.C. 1396(a)(13)(A). (S.F. 4). HCFA approved the January 1, 1988, Florida Medicaid Plan effective January 1, 1988. (S.F. 4). The Florida Medicaid Plan. Under the January 1, 1988, Florida Medicaid Plan, long-term care providers such as the Petitioners are reimbursed under a prospective reimbursement methodology. Rates are set in advance of the rate semester based on historical cost data trended forward for inflation with no retroactive adjustment to account for actual costs for a cost reporting period (as opposed to actual reimbursement for the same period). (S.F. 5). Florida long-term care providers are divided into four classes based on geographic location and size. (S.F. 5). Each provider's rate consists of four components: (1) the property cost component; (2) the operating cost component; (3) the patient care cost component; and (4) a return on equity or use allowance. (S.F. 5). Reimbursement ceilings for patient care and operating cost components are established for each of the four classes. Ceilings are effective semiannually on January 1 and July 1. A statewide ceiling for the property cost component applies to providers who are reimbursed on the basis of depreciation and interest. Section 4B of the January 1, 1988 Florida Medicaid Plan. (S.F. 6). Providers that do not receive depreciation and interest for their property costs are reimbursed under the Fair Rental Value Systems (hereinafter referred to as "FRVS"). Under FRVS, reimbursement is based on the acquisition costs of a capital asset including capital additions and improvements subsequent to acquisition. These acquisition costs are indexed forward to October 1, 1985 by a portion of the rate of increase in the Dodge Construction Index. Id. Subsection V.E.I.a. (S.F. 7). The January 1, 1988 Florida Medicaid Plan also requires that the FRVS component of a provider's rate be adjusted semiannually using the change in the Dodge Index for the most recent six month period published prior to the rate semester. Id. Subsection V.E.I.a. The January 1, 1988 Florida Medicaid Plan requires semiannual inflationary adjustments, to become effective on July 1 and January 1 of each year. (S.F. 8). The January 1, 1988 Florida Medicaid Plan established Petitioners' Medicaid rates during the period January 1, 1988 through December 31, 1989. (S.F. 9). The Legislature's Appropriation of Funds for Medicaid. The appropriation for Florida's fiscal year 1989-1990 from the Florida Legislature included funds to reimburse Medicaid long-term care facility providers for the fiscal year July 1, 1989 through June 30, 1990 in accordance with the January 1, 1988 Florida Medicaid Plan. (S.F. 12). Florida's Budget Cuts and The Department's Response. During the fiscal year ending June 30, 1990, Florida experienced a shortfall in general revenue collections, and then-Governor Bob Martinez certified that a deficit would occur in the Florida state budget. (S.F. 13). In order to deal with the budget deficit, the Department was asked to provide cost containment alternatives to the Administration Commission (consisting of the Governor and the cabinet) which the Department did. (S.F. 13). Among the alternatives recommended by the Department was an amendment to the current Florida Medicaid Plan which would maintain Medicaid reimbursement rates for long-term care facilities at their December 31, 1989 level. This alternative was advocated by the Department as the most appropriate and fair of all the alternatives presented by the Department. (S.F. 13). In effect, the Department suggested that the Florida Medicaid Plan be amended to eliminate those provisions of the Florida Medicaid Plan providing for semiannual adjustments to the Medicaid reimbursement rate. Exhibit 2 is a true, correct and complete copy of an Impact Statement prepared by the Department and submitted to the Administration Commission concerning the proposed rate freeze that was accepted by the Administration Commission. This document was not submitted to HCFA. (S.F. 13). In the Impact Statement provided to the Administration Commission on November 21, 1989, the Department concluded that Florida nursing homes would receive 4% less than their anticipated costs due to the proposed freeze: Nursing Home Care ($13,131,931 GR) - This proposal will not allow nursing home per diem rates to increase based on their projected cost increases. The Medicaid Program will be reimbursing nursing homes 4.0% less than their anticipated costs. This price level reduction will impact on 489 participating nursing homes. There is no basis upon which to project the impact this will have on our clients [sic] ability to access those services of the quality of care received. This was the only analysis conducted by the Department prior to January 1, 1990, of Florida nursing home anticipated costs compared to the rates nursing homes would receive under the proposed rate freeze. On November 21, 1989, the Administration Commission, under the procedure outlined in Section 216.221, Florida Statutes, accepted the Department's proposal effective December 1, 1989 and reduced the Department's budget accordingly. (S.F. 13). The budget reductions ordered by the Administration Commission were taken from the Department's general revenue appropriation effective January 1, 1990, through mandatory reserves, or a holdback, of appropriations. The impact on the Department was that it had less authority to spend funds. The rate freeze approved by the Administration Commission allowed changes in rates due to licensure rating changes pursuant to Section V.D. of the January 1, 1988 Florida Medicaid Plan. (S.F. 13). A letter from the Department to nursing home administrators in Florida, including the Petitioners, dated January 29, 1990, was sent to Florida facilities affected by the rate freeze. The Department stated in the January 29, 1990, letter (exhibit 5), that the rate freeze would remain in effect until monies were appropriated by the Florida Legislature to recalculate new rates and ceilings. (S.F. 17). Promulgation of Rules Implementing the Rate Freeze. In order to effectuate the freeze, the Department caused to be published in the Florida Administrative Weekly on December 22, 1989, notice of Emergency Rule 10CER89-21 (10C-7.0482) (hereinafter referred to as the "Emergency Rule"). See exhibit 3. (S.F. 14). The Emergency Rule amended the Department's rules by providing that Florida Medicaid reimbursement would be in accordance with the January 1, 1988 Florida Medicaid Plan as revised January 1, 1990. See exhibit 4. (S.F. 14). The January 1, 1990 modifications to the January 1, 1988 Florida Medicaid Plan were attached to the notice of the Emergency Rule and were incorporated therein. (S.F. 14). The effect of the Emergency Rule was to eliminate the provisions of the January 1, 1988 Florida Medicaid Plan providing for recalculation of reimbursement rates, which recalculation would have included an inflationary adjustment, for the Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. The Emergency Rule had the effect of maintaining the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. The Emergency Rule did not limit the rate freeze to the period prior to June 30, 1990, and did not specify the date or approximate date on which the rate freeze would end. (S.F. 14). Emergency rules, however, are only effective for ninety days in Florida. Although the public notice of the Emergency Rule did not specify the anticipated increase or decrease in annual expenditures, notice of the general impact of the Emergency Rule was provided. On February 2, 1990, the Department caused to be published in the Florida Administrative Weekly notice of an amendment to Rule 10C-7.0482, Florida Administrative Code (hereinafter referred to as the "Permanent Rule"). See exhibit 6. (S.F. 15). The Permanent Rule eliminated the recalculation of reimbursement rates, which recalculation would have included an inflationary adjustment for Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. The Permanent Rule maintained the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. (S.F. 15). The Permanent Rule did not limit the rate freeze to the period prior to June 30, 1990 or specify the date or approximate date on which the rate freeze would end. The "purpose and effect" section of the Permanent Rule stated that the rate freeze would be in effect until sufficient funds were appropriated by the Legislature to recalculate rates and ceilings for Medicaid providers. (S.F. 15). By letter date March 15, 1990 (exhibit 8), a "Notice of Change" was filed by the Department with the Joint Administrative Procedures Committee. The Notice of Change modified the effective date of the Permanent Rule from March 22, 1990 to March 26, 1990. The Notice of Change was published in the Florida Administrative Weekly on March 23, 1990. Exhibit 27. (S.F. 19). No other public notices, or emergency or permanent rules, were published by the Department subsequent to February 2, 1990, which would have affected the Petitioners' Medicaid rates for the period January 1, 1990 through June 30, 1990. (S.F. 16). There are no documents which indicate that the Department enacted the Emergency Rule or the Permanent Rule for reasons other than those stated in the public notices for the Emergency Rule and the Permanent Rule and the January 29, 1990, letter. (S.F. 18). The Department enacted the Emergency and Permanent Rules solely due to the budgetary cuts ordered by the Administration Commission. The preamble to the Emergency Rule stated "[b]ased on a recent decision made by the Governor and Florida Cabinet, Medicaid rates were frozen at the December 31, 1989 levels for all providers of these institutions." The preamble to the Emergency Rule also stated that "a shortfall in general revenue requires the state to reduce or eliminate payment for needed services to medicaid recipients." Neither the preamble to the Emergency Rule nor the Permanent Rule indicated that Florida nursing homes had received excess reimbursement in relation to their costs under the 1988 Medicaid Plan. There was, however, no Florida law which required any other reason for the Emergency Rule or the Permanent Rule be provided by the Department. In a previous filing in this matter, the Department stated: "[i]n response to a shortfall in general revenue collections. . . , the Administration Commission (composed of the Governor and the cabinet) ordered the Department to "freeze" rates at the December 31, 1989 level. The amendment was made effective by [the Emergency Rule and the Permanent Rule]." See also Florida Nursing Home Association v. Department of Health and Rehabilitative Services, 12 FALR at 667 ("The Emergency Rule simply carries out the reductions ordered by the Administration Commission on November 21, 1989"). On January 29, 1990, Gary J. Clarke, Assistant Secretary for Medicaid of the Department, wrote to Nursing Home Administrators, including Petitioners, and stated that the rate freeze was enacted due to a decision made by the Administration Commission: Due to a projected general revenue deficit of $280 million for the State of Florida for fiscal year ending June 30, 1990, the Administration Commission met on November 21, 1989, to determine the appropriate budget reductions for all state programs. In order to reduce the Medicaid budget for its portion of the [DHRS] required reductions, yet avoid gross disruption of services, the Commission required that Medicaid reimbursement rates and ceilings for nursing home providers be frozen at their December 31, 1989 levels, beginning with the new rate Semester on January 1, 1990. . . There are no documents which include a representation contrary to the above quoted portion of the January 29, 1990 letter that the Department enacted the Emergency Rule or Permanent Rule for reasons other than the budgetary cuts ordered by the Administration Commission. The January 29, 1990 letter from the Department also indicated that the length of the rate freeze was indefinite: This policy shall remain in effect until such time that monies are appropriated by the Florida legislature to recalculate new rates and ceilings. Impact of the Emergency Rule and Permanent Rule on the Petitioners. The Petitioners received an inflationary adjustment in their Medicaid per diem rates on July 1, 1989 in accordance with the terms of the January 1, 1988 Florida Medicaid Plan. The Petitioners did not receive an inflationary adjustment in their per diem rates which would have been due on January 1, 1990 under the January 1, 1988 Florida Medicaid Plan for the period January 1, 1990 through June 30, 1990. Instead, Petitioners' rates calculated effective January 1, 1990 used the same cost reports and inflation adjustment that had already been included in their July 1, 1989 rates. (S.F. 36). The fact that the Petitioners did not receive an inflationary adjustment in their per diem rates for the period January 1, 1990 through June 30, 1990, was because the Emergency Rule and the Permanent Rule eliminated the rate increase provisions of the January 1, 1988 Florida Medicaid Plan. Notification to HCFA of the Rate Freeze. On March 30, 1990, HCFA received a letter dated March 22, 1990, from the Secretary of the Department submitting for consideration "a Title XIX state plan amendment to our state plan." (S.F. 20). The Secretary of the Department stated the following in the letter: This amendment TN 90-8 revises the plan by freezing the reimbursement rates and ceilings of all nursing home providers at the rates of reimbursement for services rendered on December 31, 1989. . . . . The assurances required by 42 CFR 447.253 and proof of public notice are attached. Exhibit 9. Attached to the Secretary's March 22, 1990, letter was a letter dated March 29, 1990, which along with State Plan Amendment Transmittal Number ("TN") 90-08 and proof of public notice, constituted all the documentation submitted by the Department to HCFA prior to July 1, 1990 concerning the rate freeze. (S.F. 20). TN 90-08, as submitted by the Department to HCFA on March 29, 1990, proposed to modify the Florida Medicaid Plan, as the Department had provided for in the Emergency Rule and the Permanent Rule, to eliminate the recalculation of rates, which recalculation would have included an inflationary adjustment for Petitioners' per diem Medicaid rates for the period beginning January 1, 1990. TN 90-08 proposed to maintain the Petitioners' per diem Medicaid rates at the level in effect on December 31, 1989, excluding changes based on licensure rating reclassifications. TN 90-08, as submitted on March 29, 1990, did 12not limit the rate freeze to the period prior to June 30, 1990. (S.F. 21). In the March 29, 1990 letter to HCFA, the Department referenced a telephone survey in which it had compared Florida Medicaid per diem rates to the per diem rates paid to long-term care facilities along the state borders between Florida and Georgia, and Florida and Alabama, under the Georgia and Alabama Medicaid programs. The Department estimated that this telephone survey was performed during the time period December, 1989 through February, 1990. In conducting the Georgia and Alabama telephone survey, the Department did not determine whether Georgia's or Alabama's long-term care facilities per diem rates were reasonable and adequate to cover the costs of efficiently and economically operating Georgia or Alabama facilities, and the Department did not determine whether Georgia or Alabama Medicaid programs covered the same or similar costs as the Florida Medicaid program. A copy of the survey materials was submitted as exhibit 10. Exhibit 10 was not provided to HCFA. (S.F. 22). In the March 29, 1990 letter, the Department referenced an analysis in which it stated that it had compared the increase in an inflationary index from 1989 to 1990 to the increase in the Medicaid rates paid to Florida long-term care facilities from 1989 to 1990. This analysis was performed during the period January, February, or March 1990. These materials were not submitted to HCFA. (S.F.23). The Georgia and Alabama telephone survey, the inflation analysis, and that portion of the data in Exhibit 15 generated prior to March 29, 1990 by the Department relating to Florida long-term care facility historical costs and prospective per diem rates were the only reports, surveys, analyses or studies performed by the Department (as of March 29, 1990) to support its assurances to HCFA that its rates for the period beginning January 1, 1990 were reasonable and adequate to cover the costs of efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and federal laws, regulations, and quality and safety standards. (S.F.23). TN 90-08 was submitted to HCFA during the calendar quarter to which the Florida Medicaid Plan amendment was to be effective. TN 90-08 was reviewed by HCFA and a memorandum dated April 30, 1990, was written and circulated within HCFA concerning the proposed amendment. The memorandum indicates what the proposed amendment proposes, states that the review was conducted in accordance with Federal requirements and lists the assurances the State had given. The memorandum concludes, however, that "[a]fter review of the State's assurances and related information, HCFA does not yet have a reasonable basis upon which to accept the State's assurance that the proposed rates meet the 'reasonable and adequate' statutory standard of section 1902(a)(13)(A) of the Social Security Act " By letter dated May 9, 1990, HCFA notified the Department that: . . . we find that we cannot approve [the Plan amendment] as submitted. We are exercising our rights under section 1915(f) of the Social Security Act to request additional information and clarification as discussed below: . . . . Although HCFA did not deny or reject the Florida Medicaid Plan amendment submitted by the Department in the May 9, 1990, letter, HCFA did indicate that it could not approve the proposed amendment as submitted. It was recognized in the May 9, 1990, HCFA letter, as it was in the April 30, 1990, memorandum that a state may use budgetary considerations as one factor in establishing the rates to be paid providers as long as the rates are reasonable and adequate. It was also recognized in the May 9, 1990, HCFA letter that "the fact that rates in surrounding States are comparable to Florida's rates provides no justification whatsoever that its rates are reasonable and adequate. Rather, the HRS must compare its proposed rates with the costs that Florida facilities must incur in providing care and services." In the May 9, 1990, HCFA letter it is noted that the Department noted in its March 29, 1990, letter that rates are to be recalculated for the period beginning July 1, 1990, but that inconsistent language is included elsewhere in its proposal. Therefore, HCFA recommended that the Plan amendment be revised to limit the freeze to the six month period beginning January 1, 1990. The May 9, 1990, HCFA letter indicates that processing of the amendment would cease until the additional information and clarification were provided to HCFA. It is readily apparent from HCFA's April 30, 1990, memorandum and its letter of May 9, 1990, that HCFA was well aware of the requirements for amending a state Medicaid plan and the requirements that states must meet in setting Medicaid rates. The April 30, 1990, memorandum and the May 9, 1990, letter indicate that the original proposal submitted by the Department did not meet those requirements without further information being provided. HCFA did not, however, reject the Department's proposal or make any determination as to whether the proposed freeze was appropriate. HCFA merely indicated that more information was necessary and gave the Department an opportunity to provide it. On May 20, 1991, the Department submitted a letter to HCFA in response to the May 9, 1990, HCFA letter limiting the rate freeze to the six month period prior to July 1, 1990, and submitted a revised TN 90-08 to HCFA which included this change. Exhibit 18. (S.F. 30). In the May 20, 1991, Department letter the Department also referenced a second inflationary analysis. This inflationary analysis was performed by the Department in March or April, 1991. The inflationary analysis along with data generated by the Department relating to Florida long-term care facility historical costs and prospective per diem rates (exhibit 15) were the only reports, surveys, analyses or studies performed by the Department to support its May 20, 1991 assurances to HCFA that its rates for the period beginning January 1, 1990 were reasonable and adequate to cover the costs of efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards. Exhibit 19 is a true, correct and complete copy of the written materials prepared by the Department in performing the inflationary analysis referenced in the May 20, 1991 letter. These documents were not submitted to HCFA. (S.F. 31). HCFA'S Approval of the Plan Amendment. By letter dated July 2, 1991, HCFA notified the Department that the Florida Medicaid Plan amendment TN 90-08 was approved with an effective date of March 26, 1990. By letter dated September 16, 1991, the Department advised HCFA that, as stated in the March 29, 1990, letter, the originally requested effective date of March 26, 1990, was an inadvertent error. It was pointed out that the correct effective date was January 1, 1990. By letter dated October 3, 1991, HCFA notified the Department that HCFA had approved the amendment to the Florida Medicaid Plan effective January 1, 1990. Elimination of the Rate Freeze. Effective July 1, 1990 the Florida Medicaid Plan was amended to remove the language of the Emergency Rule and Permanent Rule added effective January 1, 1990 which froze rates to their December 31, 1989 level. (S.F. 37). On August 7, 1991, HCFA approved the subsequent amendment, TN 90-13, with an effective date of July 1, 1990. This subsequent Florida Medicaid Plan amendment calculated the July 1, 1990 long-term care facility Medicaid reimbursement rates using the same inflation adjustment which would have been used on July 1, 1990 had the January 1, 1990 amendment never been implemented. No reimbursement relative to the January 1, 1990 amendment, however, was made retroactively to long-term care facilities for the period January 1, 1990 through June 30, 1990. (S.F. 37).
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:37 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Dr. Lawrence A. Hall is licensed by the Florida State Board of Dentistry and the Hearing Officer has jurisdiction over the Respondent and the offenses alleged. During the time periods alleged Respondent smoked marijuana in the office after office hours in company with employees including a 16-year-old employee. During the time periods alleged Respondent wrote numerous prescriptions in the names of employees for controlled substances or drugs to be used for his personal use or for the use of his wife or friends. These drugs consisted of Eskatrol, Dexadrine, Dexamyl, Percodan, and Quaalude and were taken by Hall during office hours while he was performing work on dental patients. Some of these drugs made Respondent nervous and irritable and adversely affected his practice of dentistry. During the period between March, 1974 and July, 1975 Hall habitually used controlled substances add drugs. On many occasions he would be late getting to the office for morning appointments and late returning from lunch for afternoon appointments. Occasionally he would fail to come to the office at all and scheduled appointments would have to be cancelled - usually after the patient had appeared for the appointment. Hall wrote prescriptions for his wife and for his employees for controlled substances and drugs for uses not related to the practice of dentistry. These drugs consisted of amphetamines, Quaalude, and Percodan, and were often picked up from the pharmacy by one of his office employees not named in the prescription. Hall knew that his federal narcotics license did not authorize him to write prescriptions for drugs not intended for use in the practice of dentistry. Amphetamines are listed as Class II controlled substances in Chapter 893 F.S. On one occasion, while treating a small child, Hall became exasperated, threw a syringe across the room, then ran out of the office to jog around the adjacent shopping center for about 15 minutes to regain his composure. On another occasion a patient reacted adversely to an anesthetic and was thereafter properly treated by Hall to restore her breathing to normal. The dental procedure for which the anesthetic was given was then performed satisfactorily. The patient involved remained a patient of Hall until she moved to a location too far away to continue to use Hall as her dentist. She was satisfied with the dental treatment received from Hall. Hall sought help in his personal and drug related problems from his minister. No evidence was presented that Hall performed unsatisfactory dental work. To the contrary, all evidence presented in this regard was to the effect that Hall's dental work was above average. At the time of the hearing and for some months prior thereto Hall was not taking drugs.
