Conclusions 1. On August 30, 2012, the Agency for Health Care Administration (“AHCA” or “Agency”), Bureau of Medicaid Program Integrity, issued a Final Audit Report to Respondent, reflecting that Respondent owed AHCA the following. (SEE EXHIBIT 1) Overpayment: $19,306.88 Fines: $3,861.38 for violation(s) of Rule 59G-9.070(7)(e), F.A.C. Cost: $105.18 Grand Total: $23,273.44 2. On September 26, 2012, Respondent filed a Request for Administrative Hearing at the Division of Administrative Hearings. (SEE EXHIBIT 2) 3. On March 19, 2013, the Agency notified Respondent of the following adjustments regarding the above-referenced case. (SEE EXHIBIT 3) Overpayment: $0.00 Fines: $0.00 for violation(s) of Rule 59G-9.070(7)(e), F.A.C. Cost: $0.00 Grand Total: $0.00 Agency for Health Care Administration vs. Americare Home Health Care Services, Inc. DOAH CASE NO.: 12-3283MPI Page 1 of 4 Filed May 14, 2013 12:56 PM Division of Administrative Hearings 4. On March 25, 2013, AHCA filed Agency for Health Care Administration's Notice of Adjustments, wherein AHCA outlined the adjustments — and noted that the matters complained of in Respondent’s Petition for Formal Administrative Hearing are moot. (SEE EXHIBIT 4) 5. On March 28, 2013, AHCA filed Agency for Health Care Administration's Motion to Dimiss due to the above-referenced adjustments. (SEE EXHIBIT 5) 6. On April 1, 2013, Respondent filed its response to AHCA’s notice of the adjustments. (SEE EXHIBIT 6) To date, Respondent has not signed a Settlement Agreement. 7. On April 5, 2013, Administrative Law Judge Edward T. Bauer issued an Order Closing File. (SEE EXHIBIT 7) 8. As of April 5, 2013, AHCA has recouped $19,306.88 in Medicaid reimbursements from Respondent, pursuant to section 409.913(27), Florida Statutes. 9. Within thirty (30) days after the Final Order has been issued, AHCA agrees to refund Respondent in the amount of $19,306.88. 10. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this PA day of “May. , 2013, in Tallahassee, Florida. Eltz4beth Dudek, Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Agency for Health Care Administration vs. Americare Home Health Care Services, Inc. DOAH CASE NO.;: 12-3283MPI Page 2 of 4 Copies furnished to: Dr. Joseph P. D'Angelo Americare Home Health Care Services, Inc. 20 Northwest 181st Street Miami, FL 33169 Telephone: (305) 770-1141 Facsimile: (305) 655-3817 Email: Docd77@aol.com (Via Electronic Mail and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Health Care Administration vs. Americare Home Health Care Services, Inc. DOAH CASE NO.: 12-3283MPI CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the OE tay of [ey , 2013. Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive Building #3, Mail Station #3 Tallahassee, Florida 32308-5403 Agency for Health Care Administration vs. Americare Home Health Care Services, Inc. DOAH CASE NO.: 12-3283MPI Page 4 of 4
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation. The parties are directed to comply with the terms of the attached Stipulation. Based on the foregoing, this file is CLOSED. DONE AND ORDERED anise 7Aay of Llu , 2014, in Tallahassee, Leon County, Florida. eS ZA K, les: Agency for Health{Care Administration Page 1 of 3 Filed March 27, 2014 4:47 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Advocates For Opportunity 5975 W. Sunrise Blvd., Suite 217 Plantation, Florida 33313-6813 Agency for Health Care Administration Douglas J. Lomonico, Assistant General Counsel, MS #3 Agency for Health Care Administration Bureau of Finance and Accounting, MS #14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 ATTN: Rick Zenuch, Bureau Chief Health Quality Assurance (E-mail) Page 2 of 3 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced _——— addressees this%& Clay ot _Yre L200. . SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850)-921-0158 Page 3 of 3 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 13-3378MPI Provider No. 6711324-98 ADVOCATES FOR OPPORTUNITY, C.I. No. 13-1717-000 Respondent. JOINT STIPULATION OF DISMISSAL The AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter *AHCA™ or “Agency”), and ADVOCATES FOR OPPORTUNITY (hereinafter “PROVIDER”), by and through the undersigned, hereby stipulate and agree to the following: 1. The parties enter into this agreement for the purpose of memorializing the resolution to this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, operating under Provider Number 6711324-98. 3. In its Final Audit Report, C.1. Number 13-1717-000, (the “Audit Letter" or “FAR”), dated July 30, 2013, AHCA notified PROVIDER that AHCA was seeking to recoup an alleged overpayment in the amount of $2,053.94 and audit costs estimated at the time to amount to $54.22. The FAR also sought to impose an administrative fine in the amount of $410.78 for an alleged violation of Fla, Admin. Code Rule 59G-9.070(7)(e). The total amount sought by the Agency in the FAR was $2,518.94. 4, In response, on or about August 29, 2013, PROVIDER filed with AHCA a Page | of 5 C.1. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal petition for a formal administrative hearing, which was forwarded to the Division of Administrative Hearings (DOAH), and therein challenged the findings contained within the FAR. 5. On or about September 18, 2013, PROVIDER and AHCA jointly filed a Motion to Relinquish Jurisdiction with DOAH in order to pursue resolution of this case short of a formal administrative proceeding. 6. On or about September 19, 2013, the Administrative Law Judge entered an order granting the parties’ Motion to Relinquish Jurisdiction and the case was referred back to AHCA. 7. Both parties stipulate and agree that as a resolution of all disputed issues in this cause, each party shall dismiss and rescind its cause of action. AHCA has agreed to dismiss its Final Audit Report, C.J. No. 13-1717-000. PROVIDER has agreed to dismiss its Petition for a Formal Administrative Hearing. 8. Both PROVIDER and AHCA agree that this joint stipulation of dismissal resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims as referenced in audit C.1, No.13-1717- 000. 9. The parties agree to bear their own attorney’s fees and costs, if any. 10. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11. All parties agree that a facsimile signature suffices for an original signature. Page 2 of 4 C.L No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal 12. This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. Both AHCA and PROVIDER expressly waive in this matter their rights to any hearing pursuant to §§120.569 or 120.57, Fla. Stat., the making of findings of fact and conclusions of law by DOATI and the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding C.I. No. 13-1717-000 and any and all issues raised herein. PROVIDER further agrees that the Agency should issue a Final Order which is consistent with the terms of this Joint Stipulation of Dismissal, and which adopts this agreement and closes this matter as to AHCA C.1. No. 13-1717-000. 14. PROVIDER 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 AHCA CI. No. 13-1717-000; and AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, by or on behalf of PROVIDER. 15. This Stipulation and Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 16. All times stated herein are of the essence in this Stipulation and Agreement. 17. This Stipulation and Agreement shall be in full force and effect upon cxecution by the respective parties in counterpart. Page 3 of 4 C.I. No. 13-1717-000 AHCA v. Advocates for Opportunity Joint Stipulation of Dismissal ADVOCATES FOR OPPORTUNITY BY: NAME (Print): Deborah Wicks Kahn TITLE: Director Date:_October 24 __, 2013 AGENCY FOR HEALTH CARE ADMINISTRATION 2 727 Mahan Drive Mail Stop #3 Tallahassee, FL 32308 Page 4 of 4 oA ERIC W. MIZLER ral Inspector Ger General Counsel vate. 3/14 uf By: _| . —— Zooupiia ~LOMONICO Assistant General Counsel a _ Date: Peboy lo oo (Page 1 of °8) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION: RICK SCOTT ELIZABETH DUDEK GOVERNOR Better Health Care for all Fioridians SECRETARY GOVERNOR Tree sere me mer ere SECRETARY FEDERAL EXPRESS MAIL No.: 8029 1875 9208 July 30, 2013 Provider No: 6711324 98 NPI No: N/A License No.: N/A ADVOCATES FOR OPPORTUNITY 5975 W. SUNRISE BLVD. STE. 217 PLANTATION, FL 33313-6813 In Reply Refer to FINAL AUDIT REPORT CI. No. 13-1717-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period January 1, 2008 through December 31, 2011. A preliminary audit report dated April 10, 2013 was sent to you indicating that we had determined you were overpaid $2,053.94. Based upon a review of all documentation submitted, we have determined that you were overpaid $2,053.94 for services. Since no documentation was produced to refute these billings, all the claims are considered overpayments. We have determined that you were overpaid $2,053.94 for services that in whole or in part are not covered by Medicaid. A fine of $410.78 has been applied. The cost assessed for this audit is $54.22, The total amount due is $2,518.94. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $410.78for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. Visit AHCA online at http://ahea.myflorida.com 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 (Page 2 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 2 The Medicaid program is authorized by Title XIX of the Social Security Act and Title 42 of the Code of Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter Federal Regulations. The Florida Medicaid Program is authorized by Chapter 409, F.S., and Chapter 59G, F.A.C. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S, In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks (in accordance with Chapter 59G, F.A.C.), billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) A Medicaid Provider is required to comply with Medicaid policy requirements (e.g. laws, rules, regulations, handbooks, policy), These requirements include, but are not limited to, providing goods and services in accordance with provisions of Medicaid policy and retaining medical, financial, and business records pertaining to the goods and services furnished. This review included a review of your claims reimbursed to you by Medicaid for goods and services to determine compliance with Medicaid policy. Payments for goods or services that are not documented and/or not billed in accordance to Medicaid policy are deemed to be overpayments. Our review has determined that you have failed to comply with Medicaid policy as outlined below. * Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid Nursing Home Diversion Waiver Program. Medicaid providers are required to verify Medicaid recipient eligibility prior to rendering Medicaid services. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient’s Nursing Home Diversion Waiver Provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check the total amount reflected on page one, paragraph one, of this letter which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit Teport. Please mail payment to: (Page 3 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 3 Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Miranda Hunt, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. Sincerely, has Fante Program Administrator Office of Inspector General Medicaid Program Integrity PF/MH/SG Enclosure(s) Copies furnished to: Finance & Accounting Health Quality Assurance (Interoffice mail) (E-mail) (Page 4 of 8) Nursing Home Diversion Waiver — Fee for Service Match Page 4 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 TaHahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The reauest must be legible, on 8 % by 11-inch white paper, and contain: Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. For a request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal] hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. (Page 5 of:8) Nursing Home Diversion Waiver — Fee for Service Match Page 5 If you are in agreement with this audit and wish to make payment, please return If you are in agreement with this audit and wish to make payment, please return this form along with your check. Complete this form and send along with your check to: Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CHECK MUST BE MADE PAYABLE TO: FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider Name ADVOCATES FOR OPPORTUNITY Provider ID 6711324 98 MPI Case Number 13-1717-000 Overpayment Amount | $2,053.94 Fine Amount $410.78 Costs Assessed $54.22 Total Amount Due $2,518.94 Check Number Payment for Medicaid Program Integrity Audit (Page 6 of 8) @1OZ/SZ/TL —:a1eG Woday ELESONSEZOTZZ © S6OETS TYNOISS33OHd - EO6TSVES GH Z1069 aiaz/zz/at O10@/zZ2/0T €b 6Er" TS OFOZ/OT ONT NV WOIGIN YVAN SOGLEOSO OTOZ/tE/OT oroz/sTft ot ALEOSYSEE ‘ [ mnouydes, | eam paien de [owen sapmctadey wade | wpa welder | _prvemmesuen | S6OETS , SvNonsaiGua We | £06 Tare H ; TT ote} ‘TeEsoossz0izz Ey 6eR'tS OTOZ/60 ONE NVId TYIOGYN UNYIANH nonetaeee OTOL/OENG DOC 7 O&LISTERE ‘_Bnoury dey. | WRU palanon dey” | SUNN FPO CED [ rspvasa de | pu bukg de dl wifag wih dey | ‘Plucgpesuel | ——_——i " $6QETS TWNOISS330ud - EETISOHS 6a 21065 otoz/ters atoe/tehe “S@s9tOLzaTIzz 09°005'TS OT.02/80 _ONINVTA WOH SVAN 906T20STO. 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The Issue The issue in this case is whether the Petitioner's license rating for all or some of the time between February 26 and June 1, 1998, should be conditional or standard.
Findings Of Fact When surveyed by AHCA on February 24 through 26, 1998, Spanish Gardens had a license which would expire and have to be renewed on May 31, 1998. The facility had a license rating of superior. For the preceding year (from June 1, 1996, through May 31, 1997), the facility had a license rating of standard. During the survey, a disabled resident told a surveyor that the resident recently had complained to a nurse at the facility that a certified nurse assistant (CNA) had roughly handled the resident while transferring her into her bed, causing redness on the resident's arm, but that the facility did nothing about it. The surveyor viewed the resident's arm to verify the alleged incident. The surveyor also found a nurse's note for February 18, 1998, which mentioned the resident's complaint. On inquiring, the surveyor found that neither the administrator of the facility nor the director of nursing knew about the complaint and that the facility had not telephoned the Central Abuse Registry Hotline (the abuse hotline.) The "Guidance to Surveyors - Long Term Care Facilities" defined "abuse," in pertinent part, as "the willful infliction of injury . . . with resulting physical harm or pain." The surveyor decided to report the alleged incident to the facility's administration and to telephone the abuse hotline herself. The nurse's note stated that the resident first alleged that incident occurred on February 16, 1998; when the CNA, who also was present at the time the complaint was made, stated that he was not working on that day, the resident alleged that the incident had occurred the following day or, directing her comment to the CNA, "whenever you were here." The nurse noted a small red area on the inside of the resident's arm. The resident denied having any complaint of pain. The resident then told the nurse, "I just wanted to tell on him (the CNA)," and laughed. The survey team did not interview the nurse although she was on-duty during part of the time the survey team was at the facility. In fact, the nurse had made a professional judgment that the evidence before her did not give her reason to believe that any abuse had occurred. The survey team also interviewed a group of residents, several of whom complained that the staff at Spanish Gardens was slow to answer the call button located in residents' rooms. It was difficult if not impossible for Spanish Gardens to defend itself against the specific allegations that it had ignored residents' calls for assistance. AHCA never identified the residents who had made the complaints. However, AHCA presented no evidence that any resident was harmed or suffered medically in any way from staff's response time when called for assistance. Slow response to calls for assistance is a common complaint in nursing homes and does not in itself prove neglect. There are a number of reasons why the speed of staff's response may not satisfy a resident. Often, unbeknownst to the resident, staff is attending to the call of another resident whose needs are judged to be a higher priority. Other times, again unbeknownst to the resident, the resident's call for non- emergency assistance may require the attention of a particular staff member who may not be available at the time. The evidence was that Spanish Gardens responds reasonably quickly to residents' calls for assistance. Subject to higher priorities, the nearest staff member responds and assists when able; sometimes, another staff member with special expertise, knowledge, or skills must be summoned. Spanish Gardens does not ignore residents' complaints regarding staff response time. The evidence was that meetings have been held to allow residents to raise complaints of various kinds. Predictably, these included complaints regarding staff response time. Spanish Gardens has attempted to address these as well as the other complaints raised in these meetings. The survey team could not find the abuse hotline telephone number posted anywhere in the facility. When the survey team asked to see the facility's written policies on prevention of abuse and neglect, they were shown a document entitled "Suspected Abuse/Neglect of Residents." The document stated the facility's policy: "Any or suspected abuse/neglect of residents shall be referred immediately to the Administrator for investigation." It also stated the facility's procedures: Any staff, family member, friend, who suspects possible abuse/neglect of a resident shall report to the Administrator and Director of Nursing Services immediately. An incident report shall be completed to include all pertinent information of the alleged abuse/neglect. The Director of Nurses or the Administrator will notify the Abuse Hotline (1-800-96-ABUSE). An in house investigation with concerned parties and action to be taken will be conducted. Since the facility is charged with the responsibility of protecting the resident it will be necessary to terminate employee(s) that may be involved if allegations are found to be substantiated. If it is found that it is a family member, or friend who is responsible for the abuse/neglect, such finding shall be turned over to area adult protection agency. It may be necessary to report any substantiated abuse/neglect to appropriate regulatory agencies in accordance with their established policy regarding abuse/neglect. The survey team was not satisfied with the written policy and procedure presented because it did not require staff to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, "suspected" abuse, or "suspected possible" abuse. In an attempt to satisfy the survey team, the facility produced a document entitled, "Adult Abuse Public Law No. 299 Policy," which related to a law prohibiting: battery; placing a dependent in danger to life or health; abandoning or cruelly confining a dependent; and exploiting a dependent by misuse of the dependent's resources. The facility also produced a document entitled, "Grievance Procedure," which informed residents and their family and friends to express concerns to the Charge Nurse, the Director of Nursing, the Department Supervisor, and the Executive Director. It also included two telephone numbers for the Ombudsman, neither of which was the abuse hotline telephone number. The survey team did not review any employee or resident files for additional documentation; nor did the facility produce any for the survey team's review. In accordance with normal procedure, the survey team reported the results of the survey on a federal Health Care Financing Administration (HCFA) form 2567 (the 2567). Under the Statement of Deficiencies "Tag" F224, the 2567 alleged violations of 42 C.F.R. Section 483.13(c)(1)(i) for failure to "develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property" and for "use [of] verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion." For purposes of the 2567, the survey team gave the alleged deficiency a federal scope and severity rating of "G." The federal scope and severity ratings range from "A" (for the least serious) to "L" (for the most serious). A deficiency with a rating of "G" is not considered "substandard quality of care" under the federal scope and severity rating system. For purposes of the 2567, the survey team also gave the alleged deficiency a state classification of Class II. The state classifications are from Class I (for the most serious) to Class III (for the least serious). See Conclusion of Law 28, infra. Based on the 2567, AHCA replaced the facility's superior license with a license having a conditional rating from February 26 through May 31, 1998, when the license would expire and have to be renewed. In response to the 2567 and conditional rating, Spanish Gardens requested a formal administrative hearing, as well as an informal dispute resolution (IDR) conference. At the IDR, the facility's new administrator informed the IDR panel that, since at least 1994, all employees (including himself when he began his employment, coincidentally, during the survey conducted February 24 through 26, 1998,) were required to sign an "Abuse, Neglect, and Exploitation Policy." It states: It is the policy of this facility to protect it's [sic] residents from abuse, neglect, and exploitation by providing a safe and protected environment. Any person who knows or has reasonable cause to suspect that a resident is an abused, neglected or exploited person shall immediately report such knowledge or suspicion to the Control Abuse Registry (Toll Free Telephone Number 1-800-342-9152) and to the Facility Administrator. The statewide toll-free telephone number for the Control Abuse Registry shall be posted on the Facility Bulletin Board and in each Employee Lounge. Employees who commit acts of abuse, neglect, and/or exploitation are subject to criminal prosecution and/or fines. Employees who witness acts of abuse, neglect, and/or exploitation are required to report them immediately. Failure to report can also result in criminal prosecution and/or fines. * * * No employee of this facility will be subjected to reprisal for reporting abuse, neglect or exploitation. . . . Any employee who has been reported for abuse, will be suspended from work until any and all investigations have been completed. If the investigation confirms the employee committed an act of abuse, neglect, or exploitation, that employee shall be terminated immediately. . . . All employees of this facility will be inserviced on this policy and the consequences of abuse, neglect and exploitation during their initial orientation and alt least once annually. A complete copy of the Florida law on Abuse, Neglect, and exploitation [sic](Section 415, Florida Statutes) [sic] is on file in the Administrator's office and available for inspection upon request. Spanish Gardens also produced at the IDR conference a copy of a Resource Contact List that included a telephone number for the abuse hotline. The facility's administrator testified at final hearing that the list was given to all residents at the time of admission. However, he was not employed at the facility prior to the survey, and it is not clear from his testimony that the list was in use as described at the time of the survey. Notwithstanding the additional information presented to it, the IDR panel declined to rescind the Petitioner's conditional rating. The panel did not believe that the "Abuse, Neglect, and Exploitation Policy" was in effect at the time of the survey; in fact, it was. The IDR panel also decided that, even if the policy had been in effect, it did not require employees to report and call in all allegations or complaints of abuse or neglect but rather only known abuse, reasonably suspected, or suspected abuse. Finally, the panel decided that, if construed to require employees to report and call in all allegations or complaints of abuse or neglect, the "Abuse, Neglect, and Exploitation Policy" was not being followed since the resident's complaint was not either reported to the facility's administration or telephoned to the abuse hotline. The "Guidance to Surveyors - Long Term Care Facilities" states in part: The intent of this regulation [42 C.F.R. § 483.13(1)(c)] is to assure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc), prevents mistreatment, neglect and abuse of residents, and misappropriation of resident's property. Over the years, Spanish Gardens has reported eighteen incidents of suspected abuse or neglect to the abuse hotline. No abuse or neglect has been substantiated in any of these incidents. Never before has Spanish Gardens been cited in a survey for any deficiency relating to abuse or neglect of residents. As required, regardless whether a facility agrees with the Statement of Deficiencies in a 2567, Spanish Gardens submitted a Plan of Correction. The facility's Plan of Correction stated that it does not constitute an admission or agreement with the alleged deficiencies. The Plan of Correction reported that Adult Protective Services had investigated the alleged abuse called in by the surveyor on February 26, 1998, and had concluded that the allegation was unfounded. Otherwise, the Plan of Correction essentially stated that written policies for prevention of abuse, neglect, and exploitation were in place and that the facility's administration would conduct inservices with staff and conferences with residents and the Resident Council to ensure that the policies were understood and followed. The Plan of Correction also stated that it had again posted the abuse hotline telephone number in four different places, one behind the locked glass bulletin board. The Plan of Correction stated that it would be completed by March 26, 1998, and the evidence was that the Plan of Correction was completed by the time promised. On May 1, 1998, a team from AHCA re-surveyed Spanish Gardens and satisfied itself that the Plan of Correction had been completed and that the alleged deficiency had been corrected. On May 13, 1998, AHCA notified Spanish Gardens of the results of the re-survey. However, AHCA took no action with respect to the facility's license until June 1, 1998, when AHCA renewed the license with a standard rating for the period from June 1, 1998, through May 31, 1999. Although the Petitioner's license rating had been superior, it only requests that its license rating for the period from February 26 through May 31, 1998, be made standard. See Petition for Formal Administrative Hearing and Proposed Recommended Order of Spanish Gardens.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Class III deficiency and assigning a standard rating to the Petitioner's license for the time period from February 26 through May 31, 1998. DONE AND ENTERED this 18th day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 18th day of September, 1998. COPIES FURNISHED: Donna Stinson, Esquire R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Karel Baarslag, Esquire Agency for Health Care Administration Regional Services Center 2295 Victoria Avenue, Room 309 Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ig day of Mire , 2010, in Tallahassee, Florida. SEC fo THOMAS W. ARNOLD Agency for Health Care Administration 1 Filed May 19, 2010 4:32 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Joseph Perea, Esquire Joseph Perea, P.A. 20 N.W. 181% Street Miami, Florida 33169 (U.S. Mail) Rachic’ A. Wilson, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, FL 32308 (Interoffice Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Iinteroffice Mail) Ken Yon, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (nteroffice Mail) Peter Williams, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the L ny of [t- , 2010. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
