The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 30th day of March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
Conclusions Having reviewed the Notice of Intent dated June 10, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("the Agency") has entered into a Settlement Agreement (Ex. 2) with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Agency's Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review is rescinded. The Petitioner's request for formal administrative proceedings is 1 Filed July 10, 2009 2:23 PM Division of Administrative Hearings. withdrawn. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this ff_ da of c/a.-J,/ in Tallahassee, Leon County, Florida. , 2009, Secretary alth Care Administration A PARTY WHO IS ADVERSELY AFFECTED B THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE NSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE A ENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTER OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE N TICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE RDER TO BE REVIEWED. Copies furnished to: Jan Mills Agency for Health Care Admin. 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Th mas M. Hoeler, Esquire Ag ncy for Health Care Admin. 27 7 Mahan Drive, Bldg. #3, MS # 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Rivera, Manager Laboratory Licensure Unit Agency for Health Care Administration James P. Early Apex Laboratory 170 Finn Court Farmingdale, NY 117035 2727 Mahan Drive, MS #32 Tallahassee Florida 32308 (U.S. Mail) CERTIFICATE OF SERVICE )3/ , I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this of :C 2009. c Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 CHARLIE CRIST GOVERNOR June 10, 2009 FLORIOb.N38Cf FOR HEIILTH CARE AOMINISlRAllON JJu1CA Better Health Cara for all Floridians HOLLY BENSON SECRETARY RECl IL /RETURN RECEIPT REQUESTED ANTHONY T GAROFALO G \\, :•..,. ,,, .ouNSEL APEX LABORATORY INC 170FINNCT FARMINGDALE, NY 11735 JUN 16 2009 Ag(lm<oY 1 or Health care Administration LICENSE NUMBER: 800022307 CASE #: 2009006594 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that "Requested infonnation omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency's request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited''. You were notified by correspondence dated March 23, 2009 to provide further info1mation addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 06, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit corrections upon request for RENEWAL application: On Page 5 of9 of the Renewal application form 3170-2004, the Owner Name and Federnl Tax ID number do not match current files. Test menu lists panels, not individual tests. Section 2A of the Health Care Licensing Application does not match section 2A of the Health Care Licensing Application Addendum. Affidavit of Compliance with Background Screening Requirements form 3100-0008 for the Laboratory Director. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must confonn to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Certified Article Number 7160 3901 11848 3738 2137 I . SENDERS RECORD · 2727 Mahan Drlve,MS#32 Tallahassee, Florida 32308 Visit AHCA onllne at http://ahca. myflorida. co EXHIBIT i l Apex Laboratory Inc Page2 June 10, 2009 Karen Rivera, Manager Laboratory Licensure Unit cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 O:JtJ:IL.l.tJ.L:..10 F,om 8 09210158 Page. 2/8 Dace 6126'20094 2U5PM l"'F-IIOC:.. (.I.I,.; tJ j STATE OF FLORIDA
The Issue The following are the issues presented: Whether the Division of Administrative Hearings (“DOAH”) has jurisdiction to determine the claim of Petitioners Wal-Mart, Inc. (“Wal-Mart”) and Sedgwick CMS (“Sedgwick”) to relief under section 440.13(8) and (11), Florida Statutes; If DOAH has jurisdiction, whether Petitioners have standing to raise the issue of medical overutilization; If DOAH has jurisdiction and the Petitioners have standing, whether Petitioners are estopped from seeking reimbursement of any monies paid to Intervenors Florida Institute for Neurologic Rehabilitation (“FINR”) and Fruitville Holdings - Oppidan, Inc. (“Oppidan”); If DOAH has jurisdiction and Petitioners have standing and are not estopped, whether Intervenors engaged in overutilization of medical care in their care and treatment of the injured worker, D.F.; Whether Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department), has the authority to order Intervenors to reimburse Petitioners for payments related to overutilization by Intervenors in the medical care of D.F.; and If the Department has such authority, how much money should Intervenors be ordered to reimburse Petitioners.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for administering the Workers’ Compensation Law, chapter 440, Florida Statutes. Section 440.13 governs the Department’s responsibilities and procedures for overseeing the provision by employers to their employees of “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter ” § 440.13(2)(a), Fla. Stat. Petitioner Wal-Mart is an “employer” as that term is defined in section 440.02(16). Petitioner Sedgwick acts as a workers' compensation servicing agent or “third party administrator” (“TPA”) for Wal-Mart and is a workers’ compensation “carrier” as defined in section 440.13(1)(c). D.F. is an “employee” as that term is defined in section 440.02(15). In 2003, during the course of his employment with Wal- Mart in Sarasota, D.F. fell approximately six feet from a ladder to the ground, landing on his left side and striking his head. D.F. was diagnosed with a traumatic brain injury. Through Sedgwick, Wal-Mart accepted the compensability of D.F.'s injuries under the law and began furnishing “medically necessary treatment, care and attendance” to D.F. as required by section 440.13(2). In the immediate aftermath of the accident, D.F. was treated at Sarasota Memorial Hospital, where he was diagnosed with cephalgia (headache), left flank contusion, and cervical strain. He was later seen at First Care in Sarasota with complaints of headache, and by a Dr. Barnea (no first name in the record) with complaints of headaches, dizziness, backaches, trouble with memory, and an inability to taste food. D.F. was also seen by Dr. Hal Pineless, a neurologist at the Neurocare Institute of Central Florida, who diagnosed D.F. with a cerebral concussion with post-concussive syndrome, post-concussive headaches, depression, and anosmia (loss of the sense of smell). In January 2005, D.F. took a handful of pills in what was at least a suicidal gesture, if not a serious attempt to kill himself. He was admitted to the Halifax Medical Center, and a Baker Act2/ proceeding was initiated against him. Although D.F. was found not to meet the criteria for involuntary hospitalization at that point, three months later he was referred by James Hutchens, his attorney, to Dr. Howard Goldman, a psychiatrist, because of the attorney's fear that D.F. would again attempt to harm himself. In February 2007, D.F. was evaluated at FINR, an inpatient neurologic rehabilitation facility in Wauchula. FINR recommended inpatient treatment for D.F. at their facility for an initial period of 30 to 60 days. The cost of the treatment was set at $950 a day. Susan Smith was the Sedgwick claims adjuster assigned to D.F.’s claim. Relying on the expertise of the physicians at FINR, Ms. Smith agreed to the admission and the price. Ms. Smith testified that when she took over the case, there were five physicians treating D.F., including a neurologist, a psychotherapist, a psychiatrist, and a physiatrist. The physicians were all requesting different courses of treatment and were prescribing medications that were in some instances contraindicated with each other. The physicians were not communicating with each other. D.F.’s case was “just a mess.” Ms. Smith stated that FINR seemed to present an opportunity for D.F. to receive all of his treatments in one place, with one physician in charge, in a coordinated fashion. D.F. was admitted to FINR in March 2007. Dr. Jorge J. Villalba, the medical director of FINR, diagnosed D.F.'s medical conditions as post-traumatic headaches, anxiety, and depression. FINR provided monthly reports of D.F.'s progress to Sedgwick. D.F.’s treatment was administered by a team of physicians at FINR and consisted of medical monitoring, occupational therapy, physical therapy, and speech therapy. D.F. was provided vocational rehabilitation in FINR’s computer lab and in the wood shop, where he worked on sanding, staining, and building wood products. In August 2007, D.F. was transferred to Oppidan, an assisted living facility, as a “step down” in treatment from the inpatient FINR facility. Oppidan is affiliated with FINR, which does all of the billing for both entities. Again relying on the expertise of the physicians, Ms. Smith agreed to the transfer and to the $850 per day cost of care at Oppidan. Oppidan provided monthly reports to Sedgwick similar to those provided by FINR. These reports, later characterized as "boilerplate" by the Department’s expert medical advisor, Dr. Matthew Imfeld, showed that D.F. was receiving treatment similar to that which he had received at FINR, i.e., medical monitoring, occupational therapy, physical therapy, speech therapy, and vocational therapy. D.F. remained at Oppidan from August 2007 until August 2011, more than four years after his initial admission to FINR. Ms. Smith testified that she was in constant contact with the treatment facility and persistently inquired as to when D.F. would be ready for release from the facility. Ms. Smith noted a pattern in which D.F. would seem to improve to the point of discharge and then suffer some form of relapse or new symptom that would preclude his discharge. Increased symptoms included complaints of personality changes, anxiety, syncopal episodes accompanied by frequent falls, medication adjustments, emotional withdrawal, suspected Parkinson's syndrome, ringworm, shoulder problems, ringing in the ears, and anhedonia.3/ Petitioners worked with Oppidan’s medical staff to determine conditions for D.F.’s discharge from Oppidan. On January 9, 2009, Petitioner’s then-counsel, Brian Bartley, discussed the situation with Dr. Villalba and Dr. Jeffrey Walden, D.F.’s neuropsychologist. They agreed that D.F.’s needs could potentially be met within an outpatient day program. At Mr. Bartley’s suggestion, Dr. Villalba and Dr. Walden investigated the Adult Daycare program at Manatee Glens, a behavioral health hospital with an outpatient component. Though they rejected Manatee Glens as an appropriate placement, Drs. Villalba and Walden sent Mr. Bartley a letter, dated January 15, 2009, that outlined the components they felt necessary for an acceptable outpatient program: [D.F.] requires comprehensive case management services to oversee his program, assist with making and following-up on appointments, assist in managing his benefits, and coordinate his care. [D.F.] will require oversight of his medications. We feel that a home health nurse or, alternately, a nurse on site at a potential discharge site, would be necessary to provide for this need by packing his medication box with him, assessing him for possible side effects, overseeing a schedule of routine labs, etc. His wife can assist with prompting him at his medication times as necessary during non-program hours, but we do not recommend that she have primary responsibility for managing his medications or medical status. [D.F.] will require reliable transportation to and from his program and ancillary appointments. His wife will not be able to be his sole source of transportation. First, the only licensed and tagged vehicle they own is an old van that has had multiple reliability issues. Second, his wife has her own ongoing medical concerns that may interfere with her capacity to provide reliable transportation even with a working vehicle. [D.F.] requires activities that challenge him to be in the community and addressing his anxiety and panic symptoms. As such, a club-house model day program will be inadequate. He requires a vocational program where he is in a workplace, managing interpersonal relationships, and working on specified tasks. He has thus far been able to manage such assignments only with the assistance of a one-to-one job coach on the site with him and working at his side. As such, job coaching services will be required for all vocational hours. [D.F.] requires community recreational activities to further challenge his capacity to cope and master anxiety-producing situations with less structure than a workplace. His present program addressed this need through one-to-one lunch outings, fishing trips, etc. During these activities, he is encouraged to use the coping strategies developed in his psychotherapy sessions to manage and persevere despite his debilitating anxiety. [D.F.] requires a quiet place to which he can temporarily retreat and regroup between community-based activities. He can become overwhelmed in busy and chaotic environments such as a room with loud music or television playing, a busy game room, or an activity center. He has coping strategies he utilizes when he must be in such environments, but the availability of a place where he can escape such over- stimulation is required to facilitate his participation in his activities. [D.F.] requires continued participation in weekly cognitive-behavioral psychotherapy. He also requires regular contact with a neurologist and a neuropsychiatrist. His current program includes massage therapy as well to address his shoulder and to assist with relaxation skills. He also receives assistance with the management of his personal budget, including development of computer-based budgeting program, planning of future expenses and anticipated income, and development of financial priorities. He will require continued assistance in this area as well. We hope this adequately describes the services we feel will be required to address [D.F.’s] needs in an outpatient environment. Please feel free to contact us with any comments or questions you may have. We will gladly review any proposed discharge site and offer our thoughts regarding the acceptability of such a site to meet his needs. The record indicates that Mr. Bartley suggested at least one more potential discharge site to the medical staff at Oppidan. In a letter dated March 27, 2009, Drs. Villalba and Walden stopped short of rejecting this option outright but did set forth a list of concerns and requests for further information regarding the details of the proposed treatment. The record does not indicate whether Mr. Bartley followed up on these concerns and requests, or whether Petitioners proposed another outpatient program for D.F. By the time of D.F.’s discharge, FINR and Oppidan’s billed charges for his treatment totaled $1,451,301.27. Wal- Mart, through Sedgwick, paid these bills in full without disallowance, adjustment, or reduction. At all times relevant, Ms. Smith relied upon the expertise of the medical staff at FINR and Oppidan’s facilities confirming that the treatment being provided was medically necessary. Ms. Smith also understood that D.F. had been "Baker Acted" and feared that he might harm himself if Oppidan discharged him upon her disallowance of the charges for his treatment. Though they continued paying the charges during D.F.’s stay at Oppidan, Petitioners noted the mounting costs and apparently endless course of treatment. Petitioners referred D.F. to Glenn J. Larrabee, Ph.D., a diplomate in clinical neuropsychology, who examined D.F. on September 28 through 30 and October 5, 2009, and reviewed all of his available medical records. Dr. Larrabee produced a 41-page report, dated November 9, 2009. The report concluded that D.F.’s medical records “suggest that at worst, he suffered a mild traumatic brain injury of an uncomplicated nature, given normal CT Scan the day of injury and multiple subsequent normal CT Scans of the brain.” Dr. Larrabee noted that recovery from such an uncomplicated injury is usually three months at most and that D.F. had no cognitive or emotional complaints in follow-up visits shortly after the injury. It was only a few weeks later that he displayed the symptoms of anosmia. Dr. Larrabee’s examination of D.F. showed “deliberate feigning of odor identification in the left nostril, with significantly worse- than-chance performance, strongly supporting the feigning of anosmia.” Dr. Larrabee further noted evidence of normal neuropsychological test performance in D.F.’s initial neuropsychological evaluation with a Dr. Frank in early 2004, in a second neurological evaluation conducted by a Dr. Bosco in 2007, and in Dr. Larrabee’s own current examination. These results “strongly contradict the presence of any persistent deficit from his original mild traumatic brain injury.” In each of these tests, Dr. Larrabee also noted “evidence of invalid test performance with failure of symptom validity tests and measures of response bias,” a further indication that D.F. was deliberately feigning responses. Dr. Larrabee wrote that “[o]ther health care professionals have noted a motivational basis or non-neurologic basis to symptomatic complaint.” Dr. Salter in 2005 included “factitious disorder” as one of his diagnoses, and Dr. Tatum noted that D.F. displayed seizures without any indication of actual epilepsy. Dr. Larrabee concluded that, while there was “compelling evidence of malingering” on the neuropsychological examinations, other professionals have noted “significant personality disorder features” that could lead one to be dependent on the inpatient hospitalization setting. Dr. Larrabee found that there could be “a mix of intentional (i.e., malingering) and unintentional (psychiatric) factors” in the case of D.F. He recommended a one-month stay in a psychiatric facility for evaluation and treatment. Without such hospitalization, it could not be determined whether D.F. had a legitimate psychiatric disorder or whether such disorder was a consequence of his workplace injury. At about the same time as the referral to Dr. Larrabee, Petitioners began to explore legal channels to procure D.F.’s discharge from Oppidan. Petitioners sent the case file to an attorney, Edward Louis Stern, who testified at the final hearing. Mr. Stern testified that he met with D.F.'s attorney for the purpose of obtaining his cooperation in having D.F. discharged. Mr. Stern provided D.F.'s attorney with a copy of Dr. Larrabee’s report. Mr. Stern stated that D.F.'s attorney agreed in principle to the discharge of D.F. but wanted to identify the parameters that would be allowed by FINR/Oppidan for his safe release. To this end, a meeting was set up for June 3, 2010, that included the program director at FINR, the treating neuropsychologist, a vocational consultant, D.F., D.F.'s spouse, and D.F.'s attorney. Mr. Stern reported that no one at the meeting was willing to definitively identify the parameters of D.F.'s discharge. Mr. Stern left the meeting with the definite impression that D.F.’s attorney would not agree to D.F.’s discharge. He also believed that no one at the facility would be willing to identify parameters for discharge. Therefore, Mr. Stern and his clients decided to initiate formal overutilization proceedings based on peer review, pursuant to section 440.13(6). Mr. Stern noted that peer review requires two or more "physicians" to make an evaluation of the care in question. Petitioners had in hand only the opinion of Dr. Larrabee, a neuropsychologist whose non-physician opinion would not be admissible before a Judge of Compensation Claims. After some negotiation, D.F.’s attorney agreed to an examination by a psychiatrist. On September 3, 2010, Dr. R.J. Mignone, a board- certified psychiatrist practicing in Sarasota, evaluated D.F. at Petitioners' request. Dr. Mignone’s 35-page report included a detailed narrative of D.F.’s treatment history, Dr. Mignone’s examination, and his impressions and recommendations. In brief answers to a series of questions propounded by Petitioners, Dr. Mignone concluded that D.F.'s industrial accident was not "the major contributing cause" for the psychiatric care he had been receiving at FINR/Oppidan. Dr. Mignone found no DSM-IV Axis I psychiatric injury to D.F. and concluded that D.F.’s treatment at FINR/Oppidan was actually "psychiatrically contraindicated." Dr. Mignone concluded that it would be appropriate to discharge D.F. from Oppidan with the understanding that some regression should be expected once his “Axis II characteropathy” ceased to be reinforced by the inpatient setting. Dr. Mignone believed that D.F.'s medical professionals had been guilty of "walking on eggshells" in their treatment of him and that D.F.'s "acting out" behavior had been a major factor in FINR/Oppidan's program design. Dr. Mignone concluded that because D.F.’s condition was unrelated to his work injury, all of the treatment he had received at FINR and Oppidan constituted overutilization. After a great deal more legal jockeying, a second peer review was performed by Dr. Thomas Goldschmidt on January 7, 2011. Dr. Goldschmidt is a specialist in neurology and psychiatry, and was specifically recommended by Dr. Mignone to perform an examination of D.F. However, because D.F.’s attorney declined to allow the examination, Dr. Goldschmidt’s opinion was based on his review of the medical record and Dr. Mignone’s evaluation. He summarized his findings as follows: The claimant experienced MTBI [mild traumatic brain injury] on May 9, 2003. He reported loss of consciousness for seconds and was able to drive himself home afterwards. Serial evaluations over time have chronicled multiple normal CT brain scans, normal forty-eight hour EEG monitoring suggesting PNES [psychogenic nonepileptic seizures, i.e., seizures with a psychological cause], symptom exaggeration/malingering on neuropsychological testing, pertinacious somatic preoccupation with trait characterological disturbance consistent with passive-dependent underpinnings, and counter-therapeutic institutionalization at OPPIDAN. As such, the claimant’s clinical course has iatrogenically served to enhance his misguided perception of being “brain injured” in pursuit of satisfying his formidable but chronically frustrated dependency needs. Furthermore, his clinical course is atypical for MTBI and cannot be objectivity [sic] reconciled with the neuropsychological or clinical data provided for my review. From a non-organic perspective, the claimant has parlayed his seven year old MTBI into a state of invalidism largely facilitated by OPPIDAN. In effect, his illness-behavior has been iatrogenically perpetuated by reinforcing the notion of “brain injury” and treatment of psychogenic-mediated symptomatology unrelated to his 2003 work injury. Negotiations continued and a private mediation resulted in a negotiated settlement between Petitioners and D.F. The parties agreed that Petitioners would no longer be responsible for workers’ compensation benefits as of the date the agreement was signed, though D.F. would continue to receive payments for lost wages and supplemental benefits. It was agreed that Petitioners would cease making payments to FINR/Oppidan on August 30, 2011, the date that D.F.’s residency would discontinue. In light of Petitioners’ suspicions regarding D.F.’s possible malingering, it is reasonable to ask why they never disallowed or adjusted any of the bills generated by FINR/Oppidan’s treatment of D.F. Mr. Stern testified that Petitioners did not unilaterally disallow payment out of fear that FINR/Oppidan might retaliate against D.F. by immediately discharging him, thereby risking another suicide attempt and possible tort liability for Petitioners.4/ Petitioners also feared that unilateral disallowance of payments could negatively affect their ongoing negotiations with D.F.’s counsel regarding voluntary discharge from Oppidan. On January 28, 2011, Petitioners filed the Reimbursement Petition with the Department, naming FINR and Oppidan as respondents and expressly disclaiming any direct reimbursement dispute with D.F. The Reimbursement Petition recited the history of D.F.’s treatment. It did not name a specific instance of overutilization; rather, it stated that all of D.F.’s treatment by FINR and Oppidan constituted overutilization. The Reimbursement Petition requested that the Department, “in accordance with Section 440.13(6), Florida Statutes . . . disallow the payment of services previously paid by the Petitioner[s] and reimburse Petitioners all sums paid.” The Reimbursement Petition also requested the return of payments made by Petitioners in accordance with section 440.13(11)(a).5/ Attached to the Reimbursement Petition was a copy of DFS Form 3160-0023, entitled “Petition for Resolution of Reimbursement Dispute,” executed by Wal-Mart and Sedgwick. Just below the title of DFS Form 3160-0023 is the following statement: “A Petition for Resolution of Reimbursement Dispute must be served on the Agency within 30 days after the Petitioner’s receipt of a notice of disallowance or adjustment of payment, pursuant to 69L-31.008, Florida Administrative Code.” Section 440.13(7)(a) likewise provides, in relevant part: Any health care provider, carrier, or employer who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petitioner to submit such documentation to the department results in dismissal of the petition. FINR and Oppidan filed a Motion to Dismiss the Reimbursement Petition arguing that jurisdiction for a reimbursement review can be invoked only where a medical bill has been disallowed or adjusted for payment. They further argued that Petitioners could not invoke the Department’s jurisdiction to conduct a mandatory utilization review under section 440.13(6) because of that subsection’s provision that if a carrier finds that overutilization of medical services has occurred, the carrier “must disallow or adjust payment for such services.” FINR/Oppidan argued that the dispute mechanism afforded a carrier under section 440.13 is limited to disallowing or adjusting a payment, which triggers the filing of a petition by the health care provider and a response from the carrier. Given that the Sedgwick did not disallow or adjust any payments, the Reimbursement Petition should be dismissed. As a result of the Reimbursement Petition, the Department initiated an investigation of FINR/Oppidan and of Dr. Villalba individually as medical director of FINR/Oppidan pursuant to section 440.13(11). Eric Lloyd, who at the time was program administrator of the office of medical services in the Division of Workers’ Compensation, testified that the Department did not then have a formalized method for reporting provider violations and that the language of 440.13(7) makes it clear that only a health care provider may pursue a petition for resolution of a reimbursement dispute. Mr. Lloyd stated that the Department therefore treated the Reimbursement Petition as a report of provider violation and converted the matter into a review under section 440.13(11). Delays in the resolution of the audit were caused by the need to advertise for and contract the services of an Expert Medical Advisor (“EMA”) pursuant to section 440.13(9). The Department’s initial contracting efforts were futile. Two contracted EMAs disqualified themselves for conflicts of interest. The Department finally engaged the services of a certified EMA, Dr. Imfeld, a specialist in the field of physical medicine and rehabilitation. Dr. Imfeld reviewed D.F.'s medical records from FINR/Oppidan, as well as the reports from the various doctors that were provided to the Department by the parties. Petitioners provided documents pursuant to a “Health Care Provider Violation Referral Document Request” issued by the Department on March 31, 2011, and a “Health Care Provider Violation Referral Document Request Addendum” issued by the Department on April 4, 2011. Both documents required the carrier to submit various forms of documentation. The Department’s initial document request states that the Reimbursement Petition alleged “that services rendered by Dr. Jorge Villalba, M.D. (hereinafter “Provider”), for the treatment rendered to the above referenced injured employee while an inpatient at FINR/OPPIDAN was in excess of established practice parameters and protocols of treatment established in Chapter 440, Florida Statutes.” In fact, the Reimbursement Petition made its allegations against FINR and Oppidan as institutions. Dr. Villalba was not mentioned by name in the Reimbursement Petition. The only reference to him was a statement that “[b]oth entities seemingly have the same medical director or attending physician.” Pamela Macon, bureau chief of the bureau of monitoring and audit in the Division of Workers’ Compensation, conceded at the hearing that it was her office that decided to include Dr. Villalba in the investigation because he was the medical director of the facilities. The language of the document requests plainly reflects an attempt to impute to Petitioners the Department’s own decision at the outset of the investigation to focus on Dr. Villalba individually. The end result of the investigation was that charges were brought against Dr. Villalba, but not against FINR or Oppidan as institutions. As explained more fully below, the case against Dr. Villalba was settled. No case was ever brought against the institutions. The following colloquy at the hearing is between Ms. Macon and counsel for Petitioners: Q. And as I understand it, you added Dr. Villalba to the case because he would have been, as the medical director, responsible for any medical care that was provided within the facility and he then should be responsible? A. Yes. Q. That’s why you added him? A. Correct. Q. But then you changed your mind and determined that he wasn’t involved with it at all, so you weren’t going to give – you weren’t going to penalize him? A. Right, that he didn’t render the direct care. Q. Okay. Did you ever make a determination who did the direct care? A. Not to my knowledge, no. Mr. Lloyd testified as to a policy dispute within the agency as to whether a “health care provider” violation may be brought only against individual health care providers or whether a facility can also be found in violation and sanctioned. He acknowledged that the statutory term “health care provider” explicitly includes health care facilities, but cited the difficulty involved in disciplining a facility such as FINR, which treats multiple injured workers. If the Department bars an entire facility, it would affect not just the individual injured worker whose treatment is in question but any others the facility is treating now or in the future.6/ In his report, dated August 12, 2013, Dr. Imfeld concluded that while D.F.'s 2003 accident resulted in a mild traumatic brain injury, it did not cause a seizure disorder or Parkinson's disease. He further concluded that all of the inpatient treatment from FINR/Oppidan was excessive and not medically necessary. On September 23, 2013, the Department entered its “Report of Health Care Provider Investigation and Notice of Intent to Impose Penalties Pursuant to §440.13, F.S.”7/ The Notice of Intent was directed to Dr. Villalba individually and stated as follows, in relevant part: The record in this matter, corroborated by the EMA opinion, evidences certain care that was neither medically necessary nor clinically appropriate for D.F.'s compensable condition. Accordingly, the Department finds that because of your role at FINR and OPPIDAN, you have directly or indirectly engaged in a pattern or practice of overutilization or a violation of Chapter 440, Florida Statutes, in the treatment rendered to D.F. Dr. Villalba filed a Petition for Formal Administrative Hearing on October 7, 2013, in response to the Notice of Intent. The Department and Dr. Villalba agreed to hold the case in abeyance rather than forward it to DOAH. The case was ultimately settled, the parties entering into a Settlement Stipulation for Consent Order on May 13, 2014. The settlement provided that the Department would withdraw and dismiss its Notice of Intent and that Dr. Villalba would withdraw and dismiss his petition for an administrative hearing with prejudice. Mr. Lloyd testified that after the Notice of Intent was filed against Dr. Villalba, the Department received a Recommended Order from an Administrative Law Judge in another DOAH case in which the Department had issued a Notice of Intent against an individual physician for overutilization. The Recommended Order was “pretty critical of the Department and the process that was involved,” and the Department felt obliged to enter a settlement for attorney’s fees. Mr. Lloyd testified that the Department believed Dr. Villalba’s case had “the same shortcomings” as that earlier case. Mr. Lloyd stated that this belief played a large role in the decision to settle with Dr. Villalba in lieu of trying to prove a difficult case of overutilization in a formal proceeding. Wal-Mart and Sedgwick were given no notice of the settlement negotiations or the entry of the Settlement Stipulation for Consent Order between the Department and Dr. Villalba. Mr. Lloyd testified that there is no statutory obligation for the Department to apprise the complainant of the status of the Department’s investigations. On March 23, 2015, the Department issued an order titled “Workers’ Compensation Medical Services Reimbursement Dispute Dismissal” that purported to dispose of the Reimbursement Petition filed by Wal-Mart and Sedgwick on January 28, 2011. The order provided as follows, in relevant part: There is no information to suggest that Wal- Mart, Inc. or Sedgwick CMS discontinued authorization for treatment and care for [D.F.] by the Respondent herein during the specified dates of service. * * * The issues raised by Wal-Mart, Inc. and Sedgwick CMS are utilization review issues, not appropriate for resolution in reimbursement dispute resolution proceedings under section 440.13(7), Florida Statutes. The utilization issues were resolved by the Department in its MSS Case No. ROV00039 and Department Case No. 143376 [i.e., the case against Dr. Villalba that was dismissed via Consent Order]. Therefore, this Petition for Resolution of Reimbursement Dispute in MMS Case No. 20110531-001 is hereby DISMISSED.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order dismissing the Petition for Formal Administrative Hearing. DONE AND ENTERED this 19th day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2016.
Conclusions Having reviewed the Amended Notice of Intent to Deny and Settlement Agreement, 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 Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Petitioner’s license renewal application for assisted living facility licensure is withdrawn. 6. The Agency’s Amended Notice of Intent to Deny is moot and thus is withdrawn. 7. The Petitioner is responsible for any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner 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. Filed December 6, 2012 3:03 PM Division of Administrative Hearings 9. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner 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 @ day of ; 2012. Elizabeth Didek, Secretary Agency for Hgalth 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 correct_cgpy of this Final Order was served on the below-named persons by the method designated on this £ tay of , 2012. Richard Shoop, Agency Cte Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Areas 5 and 6 Agency for Health Care Administration (Electronic Mail) David Selby, Esq. Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Amelia Cowles, Co-owner 80" Place 5551 80" Place Pinellas Park, FL 33781 (U.S. Mail) Christina Mesa, Esq. Mesa Law, PA PO Box 10207 Tampa, FL 33679 (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 (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. ae re RICK SCOTT RORDR ASENG! FORFEAIT CARE ADMINS HATS ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 29, 2012 Administrator Gene Cowles so" Place P.O, Box 1778 Safety Harbor, FL 34689 RE: DOAH Case # 121-2641 AHCA Case # 2012007214 AMENDED “NOTICE OF INTENT TO DENY” Dear Administrator: It is the decision of the Agency for Health Care Administration (the “Agency”) that your renewal application for an Assisted Living Facility and initial Limited Mental Health specialty license to operate 80° Place be DENIED. This denial is based on the following: Your Standard license was due to expire on 20 May, 2012, and you had applied to renew it plus add a Limited Mental Health specialty license. On 14 February, 2012, the Agency, as required by law, attempted to conduct a biennial survey pursuant to re- licensure. No administrators, staff nor residents were present on that date when the surveyor arrived. , The Agency is required by law to inspect ALFs biennially for licensure renewal. Furthermore, these inspections are required by law to be unannounced. Finally, the Agency is required by law if unable to conduct the inspection to deny the renewal application. : Therefore, the following listed laws, but not limited thereto, require denial of your renewal application: F.S. 408, Part II, to include 408.806 (7) (a), (c)&(d) (re license application process) 408.811 (1) (a)&(b) (re right of inspection) 408.815 (1) (b)& (c) (re denial) * — Headquarters Area Office 2727 Mahan Drive 525 Mirror Lake Or. No., Tallahassee, FL 32308 Suite 330D AHCA.MyFlorida.com St. Petersburg, FL 33701 EXHIBIT 1 F.S. 429, to include 429.14 (1) (h)&(k) (re administrative penalties) 429.17(2) ;429.28(3) (a) (re renewal) , 429.28(3) (a)&(b) (re residents’ rights) 429.34 (re right of entry & inspection) Rule 58A-5.015,F.A.C. (re renewal) * The 3 July, 2012, Notice of Intent to Deny, mistakenly cited F.S. 408.15 (1) (b)&(c); the correct cite (408.815(1) (b)&(c))is listed above. EXPLANATION OF RIGHTS Pursuant to Section 120.569, Florida Statutes (F.S.), you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearing under Section 120.57(1), F.S., your request for an administrative Hearing must conform to the requirement in Section 28-106.201, Florida Administrative Code (F.A.C.), and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shaddrick A. ton, Manager Assisted Living Unit Bureau of Long Term Care Services Copies to: : Jan Mills, General Counsel Office, Tallahassee ‘Christina Mesa, Esq.,P.0.Box 10207, Tampa, FL 33679-0207 Assisted Living Unit, Tallahassee Paul Brown, AHCA, Supervisor, Area 5, St. Petersburg David Selby, AHCA, Assistant General Counsel, St. Petersburg STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 80" PLACE, Petitioner, : vs. DOAH CASE NO. 12-2641 AHCA NO. 2012007214 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Petitioner, 80" Place, and Respondent, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its duly authorized representatives, pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility (“ALF”) licensed pursuant to Chapters 408, Part IT and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida _ Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 408, Part i and 429, Part I, Florida Statutes; and WHEREAS, the Agency served Petitioner with a “Notice of Intent to Deny” (“NOI”) received on or about 9 July, 2012, and an “Amended Notice of Intent to Deny” on 6 September, 2012, both notifying Petitioner of the Agency’s intent to deny Petitioner’s license renewal application, and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and . NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: EXHIBIT 2 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive _ compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4 Upon full execution of this Agreement, the parties stipulate: a. Petitioner’s request for a hearing in this cause is deemed withdrawn; b. Petitioner’s application for licensure renewal is also deemed withdrawn, and c. This cause shall be deemed dismissed as moot. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, neither party admits or denies the allegations set forth in the Amended NOI, and the Agency asserts the validity of the allegations raised in the Amended NOI referenced herein. 7. The Agency is not precluded from using the subject events identified in the Amended NOI for any purpose within the jurisdiction of the Agency. Further, Petitioner acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the Amended NOI. This Agreement does 2 not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, ° conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this . Agreement, by or on behalf of Petitioner or related facilities. 12 This Agreement is binding upon all parties herein and those identified in paragraph 1 of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrence alleged in the Amended NOI, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 15. This Agreement contains and incorporates the entire understandings and agreements of the parties. ar eee a SF ee 16. This Agreement supersedes any prior oral or written agreements between the © parties. , 17, This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. . 18. —_ All parties agree that faxed and scanned signatures suffice for original signatures, The following representatives hereby acknowledge that they are duly authorized to enter - into this Agreement, consisting of the preceding 18 para, , stina. Mesa, Esq. Florida Bar No, 932388 MESA LAW, PA 2727 Mahan Drive . - PO Box 10207 Tallahassee, Florida 32308 Tampa, FL 33679-0207 Florida Bar no.; 932388 . For Petitioner . DATED: }2 [of L DATED: /0-(2-/2—- tuart F. Williams el Gene Cowles, Co-owner -or- General Counsel Amelia Cowles, Co-owner Agency for Health Cay9 Administration a ; bi ‘2727 Mahan Drive Ayilding #3 55 Place Tallahassee, Flog Pinellas Park, FL 33781 patep: / paren: 0-2-2 Wy A Edwin D. Selby, Assistant Florida Bar No. 262587 Agency for Health Care Administration $25 Mizror Lake Drive, Suite 330H St. Petersburg, FL 3870 DATED: _ /2L7 LO 02, eneral Counsel
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.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent for Case No. 2012007833. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The Respondent waived the right to receive an Administrative Complaint and Election of Rights form for Case No. 2012010596. (Ex. 2) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s assisted living facility licenses for Northwest Care Center ] (License No. 7365) and Northwest Care Center III (License No. 8425) are relinquished and cancelled. 6. The Respondent and Ethelene B. Moore, individually, shall not seek licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 7. Administrative fines and survey fees of $20,500.00 are imposed against the Respondent, but STAYED for purposes of collection as long the Respondent and Ms. Moore not seek any licensure from the Agency. In the event that the Respondent or Ms. Moore seeks licensure from the Agency after the period set forth above, the applicant shall pay $20,500.00 before any application for license can be considered. 1 Filed April 17, 2013 1:30 PM Division of Administrative Hearings 8. The Respondent is responsible for any refunds that may be due to any clients. 9. The Respondent shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Respondent is advised of Section 408.810, Florida Statutes. The Respondent 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. 10. The Respondent is given notice of Florida law regarding unlicensed activity and 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. 7D day of Mr . 2013. Elizabeth Duddk, Secretary Agency for Health 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 tne oo ee of wis Final Order was re on the below-named persons by the method designated on this / potas “pe , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) George F. Indest UI, Esq. The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 (U.S. Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearing (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 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.
Conclusions Having reviewed the Administrative Complaints and the Notice of Intent to Deny, 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 Provider, Ana Home Care, Inc., pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Provider. (Ex. 1-A; Ex. 1-B; 1-C; Ex. 1-D; and Ex. 1-E). The Agency issued the attached Notice of Intent to Deny and Election of Rights form (Ex. 1-F). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The assisted living facility license of Ana Home Care, Inc. is REVOKED. All residents shall be removed within 30 days from the entry of this Final Order. In accordance with Florida law, the Provider is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Provider is advised of Section 408.810, Florida Statutes. In accordance with Florida law, the Provider is responsible for any refunds that may have to be made to the clients. 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. 3. An administrative fine and survey fee in the total amount of $88,000.00 is imposed against the Provider, Ana Home Care, Inc., but the collection of the fine is STAYED unless the Provider applies for an assisted living facility license at which time the $88,000.00 will become due and owing. ORDERED at Tallahassee, Florida, on this _/ A day of Jane ‘i — , 2012.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct sob of this Final Order was served on the below-named persons by the method designated on this_/7 “day of (eat Wa , 2012. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Lourdes A. Naranjo, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Shaddrick Haston, Unit Manager | Revenue Management Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo Davis, Field Office Manager Medicaid Accounts Receivable Areas 9, 10 and 11 Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Lawrence E. Besser, Esquire Medicaid Contract Management Samek & Besser Agency for Health Care Administration 1200 Brickell Avenue - Suite 1950 (Electronic Mail) Miami, Florida 33131 (U.S. Mail) John D. C. Newton, IT Administrative Law Judge Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
