11-004457 Agency For Health Care Administration vs. Faith Home Health, Inc.
 Status: Closed
Recommended Order on Thursday, April 19, 2012.


View Dockets  
Summary: Petitioner established by clear and convincing evidence that Respondent failed to provide home health services in accordance with patients' plan of care. Recommend that administrative fine and cost be imposed.

1Bradley, 596 So. 2d 661, 664 ( Fla. 1992). After reviewing the complete record of this case, the

19Agency cannot find any reasons for reducing the ALJ' s recommended penalty. The record of the

35case demonstrates that Respondent had a pattern of " failing to provide a service specified in the

51home health agency' s written agreement with a patient or the patient' s legal representative, or

67the plan of care" in violation of § 400. 5), 474( Fla. Stat. That pattern occurred 9 times in 9

87different patients' files. Since the statute states that "[ t] he agency shall impose a fine of $ 5, 000"

107and " shall impose the fine for each occurrence," the Agency must impose a $ 45, 000 fine for the

126violation. Therefore, the Agency must deny Respondent' s exception to the ALJ' s

139Recommendation No. 2.

142FINDINGS OF FACT

145The Agency adopts the findings of fact set forth in the Recommended Order.

158CONCLUSIONS OF LAW

161The Agency adopts the conclusions of law set forth in the Recommended Order.

174ORDER

175Based upon the foregoing,- the hereby imposes $ 46, 000 in fines against Respondent for

191the violations enumerated in the January 23, 2012 Amended Administrative Complaint and

203assesses costs in the amount of $ 2, 13 617. against Respondent for the investigative costs

219associated with this case. The parties shall govern themselves accordingly.

229Unless payment has already been made, payment in the amount of $ 13 48, 617. is now due

247from the Respondent as a result of the agency action. Such payment shall be made in full within

26530 days of the filing of this Final Order unless the parties agree to other payment arrangements in

283writing on or before that date. The payment shall be made by check payable to Agency for

300Health Care Administration, and shall be mailed to the Agency for Health Care Administration,

314Attn. Revenue Management Unit, Office of Finance and Accounting, 2727 Mahan Drive, Fort

327Knox Building 2, Mail Stop # 14, Tallahassee, FL 32308.

337DONE and ORDERED this 5 day of 2012, in Tallahassee,

347Florida.

348Z__

349ELI B TH E , SECRETARY

354AGENG, Y FOR E TH CARE ADMINISTRATION

361NOTICE OF RIGHT TO JUDICIAL REVIEW

367A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO

380JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL

390NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG

403WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF

415APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS

425HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL

434BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE

444NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE

458ORDER TO BE REVIEWED.

462CERTIFICATE OF SERVICE

465I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been

481furnished by U.S. or interoffice mail to the ersons ed below on this '_~- Z of

4972012.

498RICHARD OOP, Age erk

502Agency for Health Care Administration

5072727 Mahan Drive, MS # 3

513Tallahassee, FL 32308

516850) 412- 3630

519COPIES FURNISHED TO:

522Honorable Lynne A. Quimby- Pennock

527Administrative Law Judge

530Division of Administrative Hearings

534The Desoto Building

5371230 Apalachee Parkway

540Tallahassee, Florida 32399- 3060

544James H. Harris, Esquire

548Assistant General Counsel

551Thomas W. Caufman, Esquire

555Tammy Stanton, Esquire

558Quintairos, Prieto, Wood & Boyer, P.A.

5644905 West Laurel Street, Suite 200

570Tampa, Florida 33607

573Jan Mills

575Facilities Intake Unit

578Revenue Management Unit

581Finance & Accounting

584STATE OF FLORIDA

587DIVISION OF ADMINISTRATIVE HEARINGS

591Qu

592AGENCY FOR HEALTH CARE tali P

598ADMINISTRATION,

599Petitioner,

600VS. Case No. 11- 4457

605FAITH HOME HEALTH, INC.,

609Respondent.

610RECOMMENDED ORDER

612Pursuant to notice, on February 10, 2012, a formal hearing

622in this cause was held in Tampa, Florida, before the Division of

634Administrative Hearings Division) by its designated

640Administrative Law Judge Lynne A. Quimby- Pennock.

647APPEARANCES

648For Petitioner: James H. Harris, Esquire

654Agency for Health Care Administration

659The Sebring Building, Suite 330D

664525 Mirror Lake Drive, North

669St. Petersburg, Florida 33701

673For Respondent: Thomas W. Caufman, Esquire

679Tammy Stanton, Esquire

682Quintairos, Prieto, Wood and Boyer, P.A.

6884905 West Laurel Street

692Tampa, Florida 33607

695f

696STATEMENT OF THE ISSUES

700Whether Respondent committed the violations alleged in the

708Amended Administrative Complaint, and, if so, what penalty should

717be imposed.

719PRELIMINARY STATEMENT

721Respondent, Faith Home Health, Inc. Faith Home), operates a

730home health agency located at 3202 North Howard Avenue, Tampa,

740Florida. On February 3, 2011, Petitioner, Agency for Health Care

750Administration AHCA), conducted a recertification survey of

757Faith Home. On August 1, 2011, AHCA filed a two- count

768Administrative Complaint against Faith Home based on its survey.

777AHCA is seeking $ 46, 00 000. in fines and the investigative cost

790associated with the survey.

794On August 23, 2011, Faith Home filed a Petition for Formal

805Administrative Hearing Petition). On September 1, 2011, AHCA

813referred the Petition to the Division for a disputed- fact hearing

824and the issuance of a recommended order.

831A Notice of Hearing by Video Teleconference was issued

840setting the case for formal hearing on November 8 and 9, 2011.

852On October 20, 2011, Faith Home filed an uncontested Motion for

863Continuance. On October 21, 2011, an Order granting the

872continuance was issued, and the parties were directed to provide

882three mutually- agreeable dates for a hearing in January 2012.

892The parties complied with the Order.

898On October 31, 2011, an Order was entered setting the case

909for hearing on January 30 and 31, 2012. On January 13, 2012,

921AHCA filed an unopposed Motion to Amend Administrative Complaint,

930which was granted, and all future references will be to the

941Amended Administrative Complaint AAC), filed with the Division

949on January 23, 2012.

953On January 30, 2012, Faith Home made an ore tenus motion for

965continuance based on the unavailability of its chief witness due

975to an unexpected illness. The ore tenus motion was granted.

985Although this case was originally scheduled for two hearing days,

995prior to the last Notice of Hearing being issued, the parties

1006notified the Division that only one hearing day was required.

1016The hearing was re- scheduled to February 10, 2012, and heard as

1028scheduled.

1029AHCA presented the deposition testimony of Jeanette Peabody

1037and the testimony of Joni Miller and Bronson Sievers. AHCA' s

1048Exhibits 1 through 4 and 6 through 18 were admitted into

1059evidence. Faith Home presented the testimony of Beverly Eubanks

1068and Celina Okpaleke. Faith Home' s Exhibits 1 through 3, 5

1079through 9, 11, and 13 through 15 were admitted into evidence."

1090A two- volume Transcript of the proceeding was filed with the

1101Division on February 21, 2012. The parties timely filed proposed

1111recommended orders, and each has been considered in the

1120preparation of this Recommended Order.

1125FINDINGS OF FACT

11281. At all times material hereto, Faith Home operated as a

1139home health agency with its principal place of business located

1149at 3202 North Howard Avenue, Tampa, Florida. Faith Home' s

1159license number is 299991078.

11632. Joni Miller is a registered nurse RN) surveyor for

1173AHCA. Ms. Miller holds an associate of arts degree in nursing

1184and practiced as an RN for almost 30 years. She practiced as an

1197RN in the areas of coronary care, research, home health,

1207cardiology, and sports medicine. Ms. Miller has completed the

1216requisite classes in surveyor training and is a certified home

1226health surveyor. Ms. Miller was received without objection as an

1236expert in nursing.

12393. Jeanette Peabody is an RN who worked for AHCA as an

1251RN specialist. Ms. Peabody obtained an associate of arts degree

1261in applied science with a major in nursing. In 1995, Ms. Peabody

1273was licensed as an RN in Pennsylvania. Thereafter, she worked

1283for various health- related entities, including but not limited

1292to) two home health agencies and the Pennsylvania Department of

1302Health. She became licensed as an RN in Florida in 2004.

1313Ms. Peabody became a certified surveyor after receiving the

1322appropriate training. While working for AHCA, Ms. Peabody

1330conducted surveys of health care facilities and agencies for

1339compliance with the applicable rules and regulations.

1346Ms. Peabody was received as an expert in nursing.

13554. Beverly Eubanks is the chief operating officer for Faith

1365Home, a position she has held for 15 years. Ms. Eubanks is an

1378RN, who received her associate' s degree in nursing from Manatee

1389Community College in 1990. Faith Home primarily serves the

1398underprivileged, low- income families, and public housing

1405residents.

14065. Celina Okpaleke is the sole owner of Faith Home and has

1418been its owner since 1997. Ms. Okpaleke is a licensed physician

1429assistant, having been licensed in 1996. Her duties at Faith

1439Home are to oversee its day- day to- management. Prior to the

1451February 2011 survey, Ms. Okpaleke had not been going to the

1462Faith Home office every day. 2/

14686. The methodology for any survey includes the following:

1477the team arrives at the location; the team is introduced to the

1489survey entity' s staff members; the team explains to the entity' s

1501staff members the nature of the survey, including a list of items

1513required for the team to conduct the survey; and there is a

1525request for work space. Upon receipt of the required items, the

1536team reviews the material, conducts interviews, conducts visits

1544with patients at their various locations, interviews staff, and

1553reviews the accumulated information. In the event the surveyors

1562have any questions, the surveyors will make requests to the

1572appropriate entity staff, and additional materials may be

1580provided to the surveyors. The survey findings are reviewed with

1590the staff, and, at the end of the survey, the team conducts an

1603exit conference with the appropriate staff. Any entity staff is

1613welcomed to be present. In the event any documentation is

1623missing, the entity is allowed to provide that material after the

1634surveyors have left the facility. In those instances when an

1644agency is out of compliance, AHCA will make a return visit to

1656ensure the agency has corrected the deficiencies. There was

1665credible testimony that this survey procedure was the same

1674procedure used during the Faith Home survey and follow- up survey.

16857. It is recognized as a good nursing practice to document

1696in a patient' s record or chart the care, treatment or other

1708services being provided to a patient. This includes all medical

1718and medically- related support services.

17238. Faith Home has numerous policies that govern how it is

1734to be run. A few of the pertinent policies are set forth below.

1747Patient Visits," last revised on December 1, 2010, provides:

1756All patients will be seen according to

1763physician' s orders and in compliance with the

1771plan of treatment. At each visit, a progress

1779or visit note will be completed. On the

1787visit note progress not sic]/ visit note)

1794the patient' s progress toward meeting

1800established goals shall be documented.

1805In addition, the patient' s response to

1812treatment will be documented as well as any

1820other pertinent assessment information.

1824All patient visits will be performed

1830according to a pre- established schedule. If

1837there is sic] any changes in visit schedule,

1845time or staff, the patient will be consulted

1853prior to the change.

1857Initial Assessment Process for Medicare P] atients," last

1865revised on December 1, 2010, reflects in pertinent part:

1874Upon admission, each patient will receive

1880initial assessment in order to determine

1886patient' s needs. To achieve this goal, the

1894following important processes must be

1899performed:

1900More in depth functional assessments

1905performed by a qualified PT physical

1911therapist] or OT occupational therapist] are

1917available to those patients who need one.

1924These assessments are documented on the

1930appropriate PT/ OT Evaluation form.

1935Initial assessments will be performed within

194148 hours of referral or within 48 hours of a

1951patient' s return home from an impatient sic]

1959stay, or on the physician- ordered start of

1967care SOC] date.

1970MSW will make assessments within one 1) week

1978of referral based on the patient' s priority

1986level as determined by RN and/ or MD, PT, ST,

1996and OT will make evaluations within one 1)

2004week of referral based on the patient' s

2012priority level as determined by the RN and/ or

2021MD.

2022Administration/ start of care assessment

2027data must be completed within five 5)

2034calendar days of the SOC date. The

2041agency then has seven 7) calendar days

2048from the SOC date to encode the data,

2056check for errors and lock the data for

2064transmission. The data will than sic]

2070be transmitted on a monthly basis; data

2077minimum no later than the month[.]

2083Oasis Data Set," last revised on December 1, 2010, reflects in

2094pertinent part:

2096The agency has implemented the OASIS data set

2104and is actively collecting data as of March

211215, 1999. Current assessment data and notes

2119utilized by the agency have been incorporated,

2126into the OASIS core data.

2131OASIS requirements apply to all patients

2137The only exclusions are as follows:

21431. Patients under the age of 18

21502. Patients receiving maternity services

21553. Patients receiving ONLY no skilled

2161services such as personal care, homemaker,

2167chore, or companion services.

2171OASIS data are collected at the following

2178points:

21791. Start of Care

21832. Resumption of Care following

2188impatient sic] stay

21913. Follow- Recertification up/

21954. Follow- SCIC up/

21995. Discharges and Death

2203Do not administer OASIS data set as an

2211interview. Questions are meant to be part of

2219the professional opinion of the staff member

2226performing the assessment, based upon the

2232evaluation of the patient.

2236Be sure to incorporate agency assessment

2242material Discharge Summary, etc.) with the

2248OASIS data set. The OASIS data set does not

2257constitute a complete assessment.

2261Policies & Procedures for Accectance sic] of Patients/ Cases"

2270last revised on December 1, 2010, reflects in pertinent part:

2280B) Qualifying Criteria for Accepting a

2286Patient

22877) Client must have a telephone or use of

2296phone in close distance for emergency

2302situation. Running water and electricity are

2308also important factors for providing adequate

2314care in the home.

2318D) Criteria for Acceptance of Skilled

2324Nursing Clients

23265) A copy of MD orders may accompany Skilled

2335Nursing Admission. If nurse is] able to

2342receive a faxed copy of orders, Faith Home

2350Health will fax them. If not, a copy of the

2360order will be sent to patient' s residence

2368with supplies.

2370Policies & Procedures for Admissions," last revised on

2378December 1, 2010, reflects in pertinent part:

2385A) Admission & Assessment Policies &

2391Procedures

23927) All documentation will be kept in the

2400patient' s Faith Home Health folder.

2406Caregiver Job Descriptions," last revised on December 1, 2010,

2415reflects in pertinent part:

2419A) Registered Nurses

2422Activities may include:

242511. Recording pertinent information.

2429B) LICENSED PRACTICAL NURSE

2433Activities may include:

24367. Recording all pertinent observations and

2442treatments[.]

2443C) Certified Nurse Aide

2447Activities may include:

245022. Keeping a record of observations and

2457care given[.]

2459D) Home Health Aide

2463Activities may include:

246610. Maintaining a proper record of

2472activities.

2473The February 2011 Survey

24779. In early February 2011, Ms. Peabody was the lead

2487surveyor in the annual Florida licensure recertification survey

2495conducted at Faith Home FH survey). Ms. Miller was also a

2506member of the FH survey team. This FH survey team conducted

2517reviews, interviews, home visits, and conferences over the course

2526of three days.

252910. During the February 2011 FH survey, Ms. Peabody

2538requested and was provided Faith Home' s records for patient S.

2549The home health certification and plan of care HHC/ POC) for

2560patient 5 provided the SOC date as December 14, 2010. The

2571HHC/ POC ordered skilled nursing visits to occur one to two times

2583a week for nine weeks. According to the HHC/ POC, at each visit,

2596the skilled nurse was to perform various treatments with respect

2606to patient 5' s multiple medical issues, including assessing vital

2616signs, cleaning a toe wound and applying a dressing, instructing

2626the patient on diet and nutrition, and reporting any changes to

2637the " MD medical doctor] supervisor ASAP as soon as

2646possible]."

264711. Patient 5 did not receive skilled nursing visits during

2657the weeks of December 19 or 26, 2010. During the following

2668skilled nursing visits, patient 5 did not receive wound care

2678treatment: December 13, 2010, and January 6, 13, 18, and 21,

26892011.

269012. Additionally the HHC/ POC called for a PT to evaluate

2701and treat patient 5. There were orders that the PT was to

2713administer therapeutic home care exercises in order to increase

2722patient 5' s functional abilities. Patient 5 did not have the

2733physical therapy evaluation or treatment as directed. There was

2742no PT evaluation or treatment documentation for patient 5, and

2752there was no documentation that the MD or supervisor was notified

2763that the treatments did not take place.

277013. Following the review of the documentation provided,

2778Ms. Peabody afforded Faith Home the opportunity to provide any

2788additional documentation they had with respect to the care and

2798treatment provided to patient 5. No additional documentation was

2807forthcoming to the surveyors.

281114. Ms. Eubanks contended that patient 5 was seen by a

2822nurse during the week of December 18, 2010. She testified that

2833there was no wound care treatment necessary for patient 5 because

2844the wound had healed. Ms. Eubanks " believe[ d]" the wound had

2855resolved by December 9, 2010, and that no PT was ordered because

2867patient 5 was still " refusing it." Ms. Eubanks also testified

2877that no wound care treatment was required because it was not on

2889the OASIS data collection sheet. Ms. Eubanks' s testimony is not

2900credible as the HHC/ POC is clear as to the physician' s order

2913regarding patient 5' s toe wound care and the PT evaluation and

2925treatment. The OASIS data form may be the methodology " to track

2936your Faith Home] benchmarks and your progression to see how you

2947rank" among other home health agencies, but it does not take the

2959place of a HHC/ POC executed by a physician. Further, although a

2971patient always has the right to decline a health care service,

2982that response does not preclude the physician from ordering the

2992particular care to be provided.

299715. Based on the violations observed and documented during

3006the February 2011 survey, Ms. Miller went back to Faith Home in

3018June 2011 to follow up on the areas of concern. Ms. Miller

3030reviewed five patients at the June 2011 revisit, one of whom was

3042part of the February 2011 survey, patient 5. 3/

305116. Patient 5J' s HHC/ POC, signed on April 16, 2011, ordered

3063skilled nursing visits to occur one to two times a week for nine

3076weeks. According to the HHC/ POC, at each visit, the skilled

3087nurse was to perform various treatments with respect to

3096patient 5J' s multiple medical issues. The HHC/ POC included an

3107assessment of patient 5J' s vital signs including the endocrine,

3117cardiac, and neuro, with instructions regarding the disease

3125process and management; fall prevention; diet and nutrition; and

3134skin, nail, and foot care. It also included an order to report

3146any changes or concerns to the] MD & supervisor ASAP."

315617. This April 16, 2011, HHC/ POC also ordered a home health

3168aide HHA) to provide services two to three times a week for nine

3181weeks for patient 5J. The HHA was to assist patient 5J with the

3194activities of daily living ADL).

319918. During the follow- up survey, Ms. Miller was unable to

3210find documentation of any nurse' s treatment for patient 5J during

3221three of the nine- week certification period. The skilled nursing

3231visit notes on April 21 and May 5, 2011, failed to reflect any

3244assessment of patient 5J' s vital signs, including the

3253cardiovascular system. The lines drawn through certain boxes do

3262not indicate review or assessment of patient 5J.

327019. Further, there was no evidence of any HHA visits during

3281the seventh week through the ninth week of the certification

3291period for patient 5J. This totaled six missed HHA visits for

3302patient 5J.

330420. With respect to patient 7, the HHC/ POC, with a SOC

3316date of December 18, 2010, ordered a PT to evaluate and treat

3328patient 7. The PT was to administer a therapeutic home care

3339exercise program to patient 7 to increase strengthening. 4/ The

3349HHC/ POC also ordered the skilled nurse to " report any changes and

3361or concerns to the MD & RN ASAP."

336921. Patient 7 did not receive the physical therapy

3378evaluation until December 29, 2010, 11 days after it was ordered.

3389The PT' s care plan for patient 7 involved physical therapy two

3401times a week for three weeks. At the time of the FH survey,

3414there was no documentation that the physician was notified of the

3425delay or the reason for the delay in performing the PT evaluation

3437on patient 7.

344022. Ms. Eubanks provided a " Communication/ Status Report"

3448C/ SR) pertaining to patient 7, dated January 3, 2011. Although

3459this C/ SR purports to put Faith Home services including the PT)

3471on hold until the patient returns from being with the " daughter

3482and family for a couple of weeks," it is at odds with the

3495credible evidence presented by AHCA. The physical therapy

3503documentation reflects that patient 7 was provided PT services

3512twice during the week of January 9, 2011, just one week after

3524Faith Home was " notified" the patient would be gone " for a couple

3536of weeks." Additional physical therapy documentation reflects

3543that service was also provided twice during the week of

3553January 17, 2011. 5

355723. Ms. Eubanks' s contention that this C/ SR was faxed to

3569patient 7' s physician to notify him/ her of the change in plans is

3583not credible. There was no testimony or documentation of the

3593physician' s actual fax number or the actual number to which this

3605C/ SR was purportedly faxed, nor did the person who actually faxed

3617the C/ SR testify.

362124. Patient 11' s HHC/ POC, signed December 15, 2010, ordered

3632skilled nursing care two to three times a week for nine weeks.

3644At the end of the HHC/ POC orders, there is an order to " Report

3658any changes and or concerns to MD & supervisor ASAP." Although

3669it is noted on the HHC/ POC that the " Certification period was]

3681extended due to a] procedure on the] left second toe," there

3692was no actual doctor' s order to provide wound care to

3703patient 11' s left second toe. There is, however, a " 60 Day

3715Summary" notation which states:

3719Wound to the] right great toe healed without

3727complication. Skilled nurse currently caring

3732for left second toe. No S& S of infection

3741noted. Blood pressure and blood sugar has

3748remained stable through out sic].

3753This summary statement is not an order for care to patient 11' s

3766left second toe.

376925. When a nurse observes a new wound in need of care, the

3782nurse should immediately document the toe wound and contact the

3792physician. The burden then falls to the physician to decide

3802what, if any, order is appropriate for the wound care. This

3813recording/ reporting process was not followed, and there was no

3823documentation of patient 11' s wound to the left second toe.

3834However, the skilled nursing visits record that wound care was

3844provided to patient 11' s left second toe.

385226. Ms. Eubanks testified that patient 11' s podiatrist,

3861Dr. Rappaport, wrote an order to discontinue wound care to the

3872right great toe because it had healed. Other than the 60- day

3884summary note found in the HHC/ POC signed December 15, 2010, there

3896was no order signed by Dr. Rappaport that discontinued care to

3907the right great toe, and no order for care to patient 11' s left

3921second toe was introduced at hearing. Although Ms. Eubanks

3930testified that patient 11 had the left second toe nail bed

3941removed, she never testified that she was present when that nail

3952bed was removed or that she was the attending skilled nurse who

3964provided the post nail bed removal care. Her testimony is at

3975odds with the credible evidence presented by AHCA.

398327. Patient 13' s HHC/ POC, with a SOC date of December 21,

39962010, ordered skilled nursing care one to two times a week for

4008six weeks with specific skilled nursing tasks to be performed.

4018There was no documentation that a skilled nurse provided care

4028during the weeks of December 26, 2010, or January 9, 2011.

403928. Patient 13' s HHC/ POC also ordered a physical therapy

4050evaluation. As part of the HHC/ POC, the PT was to administer

4062therapeutic home care exercises to increase functional strength,

4070range of motion ROM), balance and endurance, and transfers and

4080to report " any changes and or concerns to the] MD & RN CM case

4094manager] ASAP."

409629. Patient 13' s physical therapy evaluation was not

4105conducted until January 5, 2011, roughly two weeks after it was

4116ordered. The physical therapy care plan directed that patient 13

4126was to be seen two times a week for the first week and three

4140times a week for the next four weeks. Although there are " missed

4152visit reports" that document a PT' s attempt to see the patient on

4165six different January 2011 dates, there is no credible evidence

4175that patient 13' s physician was notified of those six missed

4186visits as soon as possible.

419130. Ms. Eubanks points to a January 24, 2011, C/ S Report

4203January note) for the reason the PT missed the visits with

4214patient 13. This January note reflects that patient 13 had gone

4225to Georgia to be with her daughter and would return the end of

4238January 2011 or the first Tuesday in February. This January note

4249prompts more questions than answers because it does not reflect

4259exactly when patient 13 went to Georgia and only asks that the

4271nursing services" not the physical therapy services be held

4280until patient 13' s return.

428531. The missed visit reports indicate that a PT went to the

4297residence and knocked on patient 13' s door, but no one came to

4310the door. Although the missed visit reports provide space for

4320the patient' s name appropriately redacted), the date of

4329service), the discipline in this case " PT" was checked), the

4339reason for the missed service; in this case phrases to the

4350effect: drove by, no one answered door, etc.), and who completed

4361the missed visit report the PT' s signature is illegible), none

4372of these missed visit reports have a checkmark or any

4382indication) next to the " Y," which signifies that the physician

4392was notified. Ms. Eubanks' s posturing that these missed visit

4402reports were left in an inbox at a public housing building

4413facility so that the physician was notified is not credible.

442332. Ms. Eubanks also testified that patient 13 did not have

4434a telephone, and " so there was no other way to contact her] but

4447actual face to face." This statement is in direct contradiction

4457to Faith Home' s policy that a client must have a telephone or

4470that a phone be close by for communication purposes.

447933. Further, there was evidence that two skilled nursing

4488visits took place: one on January 26, 2011, and the other on

4500January 29, 2011, just two and five days, respectively, after the

4511January note stating patient 13 would be gone until the end of

4523January or the first of February.

452934. Patient 2' s HHC/ POC, signed September 13, 2010, ordered

4540skilled nursing visits to occur up to seven days a week, and the

4553nurse was to provide a complete assessment with each shift.

4563According to the HHC/ POC, the skilled nurse was to, among other

4575things, monitor patient 2' s GI status and provide G- tube care

4587every shift, weigh the child weekly on Mondays when scales became

4598available, and document it in the mom' s notebook. Based on

4609patient 2' s condition, care had to be taken that the patient did

4622not become dehydrated or lose a lot of weight. There was no

4634documentation of patient 2' s weight being recorded by the

4644Faith Home skilled nurses during the scheduled Monday visits.

4653Patient 2' s records provided to the surveyors during the

4663February 2011 FH survey failed to reflect documentation as to any

4674G- tube care being provided on every shift.

468235. Ms. Eubanks testified that patient 2 was weighed weekly

4692at his school. Based on the phrase in the HHC/ POC " when a scale

4706becomes available," Faith Home took the position it was not

4716obligated to secure a scale to ensure it weighed the patient per

4728the HHC/ POC. Rather, Faith Home unilaterally decided that,

4737because the Department of Children and Families DCF) was having

4747patient 2 weighed weekly at school, Faith Home was meeting its

4758obligation. However, this position flies in the face of the

4768physician' s order for patient 2. Patient 2' s record does not

4780reflect where patient 2' s weight was being recorded, either at

4791home or school, nor does it reflect that the physician was being

4803made aware of patient 2' s weight on a regular basis. Faith Home

4816did not document the lack of a scale, did not inform the

4828physician that the weight was being monitored by DCF at

4838patient 2' s school and did not ensure that the physician was

4850aware of patient 2' s weekly weight status.

485836. Patient 3' s HHC/ POC, signed November 30, 2011, ordered

4869an RN to be present 20 hours a day up to seven days per week.

4884Additionally, the skilled nurse was to assess the patient and

4894perform other specific care. One specific task was for

4903patient 3' s tracheotomy care to be performed twice a day and as

4916needed.' Documentation for patient 3 failed to reflect the

4925tracheotomy care twice a day or as needed between December 20,

49362010, and January 22, 2011.

494137. Ms. Eubanks testified to patient 3' s medical

4950circumstances. Although Ms. Eubanks understood that AHCA' s

4958surveyors had patient 3' s pediatric notes, she only pulled

4968random notes" for the " period because they had already copied

4978everything that they wanted to take." Of Faith Home' s documents

4989that she discussed, Ms. Eubanks only presented two dates out of

5000the 34 days alleged in the AAC) that recorded some type of

5012tracheotomy care for patient 3. Hence, her testimony lacks

5021credibility in light of the overwhelming evidence AHCA provided.

503038. Patient 6' s HHC/ POC for the certification period of

5041October 14, 2010, to December 12, 2010, ordered skilled nursing

5051care three to four times a week for nine weeks and also provided

5064for specific disciplines and treatments to be performed. There

5073was evidence that a skilled nurse provided one visit to patient 6

5085on October 15, 2010; yet, there was no evidence that a skilled

5097nurse provided the minimum number of visits to patient 6 during

5108the remainder of the nine- week certification period. It was

5118noted that two skilled nursing visits were made during the week

5129of November 14, 2010. However, the HHC/ POC ordered a minimum of

5141three, up to four skilled nursing visits to be made.

515139. Patient 6' s HHC/ POC also ordered HHA services to be

5163provided two to three times a week for nine weeks. The HHA was

5176to assist patient 6 with ADLs. The HHA failed to provide

5187patient 6 the minimum number of visits during weeks one, two, or

5199three of the certification period.

520440. Ms. Eubanks testified that Faith Home could not provide

5214services to patient 6 after October 14, 2010, as patient 6 was

5226admitted to a local hospital. Further, Ms. Eubanks testified

5235that the HHA documentation " has to be incorrect," although she

5245also testified that the Faith Home documents were " true. There

5255has been an error." 8~ Ms. Eubanks' s testimony is at odds with the

5269credible evidence presented by AHCA.

527441. Patient 14' s HHC/ POC dated January 20, 2011, ordered

5285skilled nursing services to be provided one to two times a week

5297for four weeks then every other week EOW) for nine weeks. The

5309HHC/ POC also ordered that a HHA was to assist patient 14 with

5322ADLs, a PT was to evaluate and treat patient 14, a speech

5334therapist was to evaluate and treat patient 14, and an

5344occupational therapist was to evaluate and treat patient 14. On

5354January 25, 2011, patient 14' s medical doctor again ordered the

5365physical therapy and directed the HHA to provide services three

5375times a week for nine weeks.

538142. The evidence regarding patient 14 documented two

5389skilled nursing visits missed during the first two weeks of the

5400certification period January 16, 2011, to March 16, 2011), and

5410there was no evidence of any HHA service visits for the first two

5423weeks of patient 14' s certification period. Additionally,

5431patient 14 did not receive three physical therapy visits.

544043. Ms. Eubanks testified that patient 14 was in an adult

5451day care setting and that Faith Home missed no less than four

5463skilled nursing visits. The " Missed Visit" reports MVR)

5471provided by Faith Home purport that patient 14 was in an adult

5483day care setting; yet, that same MVR documentation fails to

5493record that patient 14' s physician was notified of the lack of

5505services being provided. Further, the MVR dated Wednesday)

5513January 26, 2011, reflects that patient 14' s daughter " made

5523arrangements to have patient 14] home next on Thursday by 3 p.m.

5535Understands nurse do sic] not go to day care." This MVP

5546reflects that the date of the next Faith Home service visit will

5558be February 4, 2011, a Friday, not a Thursday.

556744. Also, within the material provided by Faith Home, there

5577is a C/ SR dated January 20, 2011. That C/ SR records that

5590patient 14 is requesting a hold on home health aide visit.

5601Daughter will be able to provide service for the next few weeks."

5613Yet, there is also a HHA note dated January 22 or 23, 2011, 9

5627detailing HHA services provided to patient 14 on that date. The

5638inconsistencies in Faith Home' s documentation presented during

5646the hearing are damaging to its credibility as a whole.

565645. Patient 15' s HHC/ POC, dated December 15, 2010, ordered

5667skilled nursing services to be provided two to three times a week

5679for nine weeks. As part of the skilled nursing services,

5689patient 15 was to have her vital signs assessed along with other

5701specific assessments. The HHC/ POC also contained an order to

5711Report any changes or concerns to the] MD & supervisor ASAP."

572246. The evidence presented regarding the skilled nursing

5730visits for November 3 and 5, 2010, failed to reflect patient 15' s

5743neurological assessments or any observations by the nurse and

5752also failed to provide the " nursing diagnosis/ problem." Other

5761portions to these specific records contain words or phrases to

5771provide information, a number with a percentage sign, a zero O),

5782or simple checkmarks indicating a system was observed or treated.

5792These written words or markings provide clarity to patient 15' s

5803completed assessments or status. Patient 15' s skillqd nursing

5812records for December 29 and 31, 2010, and January 2, 12, and 14,

58252011, failed to document one or more of the patient' s systems:

5837cardiovascular, genitourinary, neurological, or musculoskeletal.

584247. Ms. Eubanks testified that certain portions of

5850patient 15' s skilled nursing notes were completed using a method

5861called " charting by exception." According to this method, when

5870the professional leaves an area of the chart blank, it indicates

5881that nothing is wrong with the patient. A review of patient 15' s

5894skilled nursing notes simply does not support the use of this

5905methodology. Specifically as an example, on the November 5,

59142010, skilled nursing visit note, nothing is checked or notated

5924in the neuro- sensory section; yet, at the " PAIN" section, there

5935is a " 0" marked through all five lines. If the " charting by

5947exception" method was being used, this area should have been left

5958blank as there was no pain. It is impossible to determine when

5970charting by exception is in place when one area of a record has

5983check marks or specific notations regarding an assessment or

5992status and another section or sections) is left blank even

6002though the HHC/ POC specifically ordered that assessment. There

6011is no base line by which the next skilled nurse would know if

6024there had been a change in patient 15' s assessment or status such

6037that her attending physician or the supervisor should be

6046appropriately notified. Ms. Eubanks' s testimony is not credible

6055in light of the evidence presented by AHCA.

6063The June 2011 Follow up Survey

606948. Both parties presented medical records for Patient 2J.

6078Patient 2J' s two HHC/ POCs appear to be identical in scope; yet,

6091one was signed on April 25, 2011, while the other was signed on

6104April 27, 2011. Within the HHC/ POCs, the doctor ordered skilled

6115nursing services to be provided once in the first week, then one

6127to two times a week for eight weeks. As part of the skilled

6140nursing services, patient 2J was to have her vital signs assessed

6151and other specific assessments completed.

615649. The HHC/ POCs also ordered a PT to evaluate and treat

6168patient 2J.

617050. Ms. Eubanks testified that the PT evaluation was

6179ordered on April 8, 2011, when it " came upon sic] assessment."

6190However, the HHC/ POCs ordering the PT evaluation were not signed

6201until April 25 or April 27, 2011. Patient 21' s actual physical

6213therapy evaluation occurred on April 21, 2011, either four or six

6224days before it was ordered. Faith Home either delayed 13 days in

6236having the physical therapy evaluation completed, or Faith Home

6245obtained a physical therapy evaluation prior to having a

6254physician' s order to provide the service. In either instance,

6264Faith Home did not follow its own policies for providing

6274services.

627551. Although the PT created a care plan for patient 2J,

6286there is no physician' s order directing the physical therapy care

6297plan be used. Further, the physical therapy services were

6306actually performed by a physical therapist assistant PTA) and

6315provided to patient 21 during weeks four, five, six, and seven of

6327the certification period. An extra PTA visit was noted in week

6338seven. Again, Faith Home provided services that were not in

6348compliance with their own policies.

635352. Patient 3J had an April 5, 2011, order for physical

6364therapy to be provided three times a week for six weeks based on

6377her gait instability, her osteoarthritis in her knees, and her

6387degenerative spinal joint disease. There was no evidence of any

6397physical therapy being provided to patient 3J during the

6406applicable certification period.

640953. Ms. Eubanks testified that patient 3J' s actual care

6419started in February 2011, despite the HHC/ POC documentation that

6429it started on March 24, 2011. Ms. Eubanks blamed a nursing

6440supervisor for the wrong start date March 24, 2011) and

6450confirmed that the difference in start dates would make a

6460difference in the dates of Faith Home services. Even if one were

6472to accept the February 2011, order for physical therapy services,

6482that order is incomplete because it fails to enumerate how many

6493times a week and how many weeks the physical therapy services

6504were needed. It is an incomplete order. Ms. Eubanks' s testimony

6515is not credible in light of the evidence presented by AHCA.

652654. Patient 4J' s HHC/ POC contained a SOC date of April 8,

65392011. Therein it ordered skilled nursing services to be provided

6549two to three times a week for nine weeks. As part of the skilled

6563nursing services, patient 4J was to have her vital signs assessed

6574along with other specific assessments. Additionally, the HHC/ POC

6583contained an order for a PT to evaluate and treat.

659355. Ms. Miller was unable to locate any documentation of

6603home health services provided to patient 4J after May 5, 2011

6614four missed visits), and there was no evidence that any physical

6625therapy services were provided to patient 4J.

663256. Ms. Eubanks testified that patient 4J was in the

6642hospital when Faith Home services were not provided to

6651patient 4J. Although Ms. Eubanks relied on a discharge

6660instruction sheet to make the claim, there is no date on the

6672discharge instruction sheet, and no one testified as to the exact

6683date that patient 4J was admitted to or discharged from the

6694hospital. Ms. Eubanks' s testimony is not credible as it relied

6705on an undated discharge instruction sheet.

671157. Further, although the physical therapy referral for

6719patient 4J was faxed to the physical therapy agency, that agency

6730never received the referral and never provided the service.

6739Faith Home failed to have a system in place to ensure services

6751ordered by the physician were obtained.

675758. Ms. Okpaleke, as the owner of Faith Home, engaged an

6768expert to help Faith Home " correct all the cites and

6778implement a plan of correction to make sure that we were in

6790compliance." Ms. Okpaleke terminated the expert' s employment

6798after the summer. Ms. Okpaleke then started monitoring Faith

6807Home' s practices and ensured that Faith Home returned to

6817compliance with AHCA' s regulations.

682259. Ms. Miller' s salary at the time of the FH survey was

683520. 15. Ms. Miller expended approximately 30 hours in conducting

6845the recertification survey of Faith Home. Based on her rate of

6856pay, AHCA expended $ 1, 20 370. for Ms. Miller' s services.

686860. Ms. Peabody' s salary while employed by AHCA during the

6879FH survey was $ 21. 07 an hour. Ms. Peabody expended approximately

689142 hours preparing for, conducting, and completing the FH survey.

6901Based on her rate of pay, AHCA expended $ 1, 23 048. for

6914Ms. Peabody' s services.

691861. Mr. Bronson Sievers is the health facility evaluator

6927supervisor for AHCA. His salary is $ 19. 87 an hour. Mr. Sievers

6940expended approximately ten hours reviewing the statement of

6948deficiencies to determine if the appropriate citations had been

6957used and the appropriate penalty assessed. Based on his rate of

6968pay, AHCA expended $ 198. 70 for Mr. Sieivers services.

697862. Mr. Sievers responsibility included the supervision of

6986several AHCA programs and included the home health agencies.

6995Mr. Sievers determined that the repeated violation warranted a

7004Class III violation, which resulted in a $ 1, 00 000. fine because

7017it may affect the clients' well- being and health.

702663. Mr. Sievers provided AHCA' s interpretation of the fine

7036imposed when a home health agency demonstrates a pattern of

7046failing to provide the specified services to its clients or

7056patients.

7057CONCLUSIONS OF LAW

706064. The Division of Administrative Hearings has

7067jurisdiction over the parties and subject matter of this

7076proceeding. 120. 569 and 120. 1), 57( Fla. Stat. 2011). 10

708765. In the instant case, AHCA has the burden of proving by

7099clear and convincing evidence that Faith Home committed the

7108violations as alleged, and, if there are violations, the

7117appropriateness of any fine resulting from the alleged

7125violations. Dep' t of Banking & Fin., Div. of Securities &

7136Investor Prot. v. Osborne, Stern & Co., 670 So. 2d 932 Fla.

71481996).

714966. In Slomowitz v. Walker, 429 So. 2d 797, 800 Fla. 4th

7161DCA 1983), the court held that:

7167Clear and convincing evidence requires that

7173the evidence must be found to be credible;

7181the facts to which the witnesses testify must

7189be precise and explicit and the witnesses

7196must be lacking in confusion as to the facts

7205in issue. The evidence must be of such

7213weight that it produces in the mind of the

7222trier of fact a firm belief or conviction,

7230without hesitancy, as to the truth of the

7238allegations sought to be established.

724367. Section 400. 462, Florida Statutes, provides in

7251pertinent part certain definitions as follows:

725712) Home health agency" means an

7263organization that provides home health

7268services and staffing services.

727214) Home health services" means health and

7279medical services and medical supplies

7284furnished by an organization to an individual

7291in the individual' s home or place of

7299residence. The term includes organizations

7304that provide one or more of the following:

7312a) Nursing care.

7315b) Physical, occupational, respiratory, or

7320speech therapy.

7322c) Home health aide services.

7327d) Dietetics and nutrition practice and

7333nutrition counseling.

7335e) Medical supplies, restricted to drugs

7341and biologicals prescribed by a physician.

734715) Home health aide" means a person who is

7356trained or qualified, as provided by rule,

7363and who provides hands- on personal care,

7370performs simple procedures as an extension of

7377therapy or nursing services, assists in

7383ambulation or exercises, or assists in

7389administering medications as permitted in

7394rule and for which the person has received

7402training established by the agency under s.

7409400. 1). 497(

741222) Organization" means a corporation,

7417government or governmental subdivision or

7422agency, partnership or association, or any

7428other legal or commercial entity, any of

7435which involve more than one health care

7442professional discipline; a health care

7447professional and a home health aide or

7454certified nursing assistant; more than one

7460home health aide; more than one certified

7467nursing assistant; or a home health aide and

7475a certified nursing assistant. The term does

7482not include an entity that provides services

7489using only volunteers or only individuals

7495related by blood or marriage to the patient

7503or client.

750523) Patient" means any person who receives

7512home health services in his or her home or

7521place of residence.

752425) Physician" means a person licensed

7530under chapter 458, chapter 459, chapter 460,

7537or chapter 461.

754028) Skilled care" means nursing services

7546or therapeutic services required by law to be

7554delivered by a health care professional who

7561is licensed under part I of chapter 464; part

7570I, part III, or part V of chapter 468;. or

7581chapter 486 and who is employed by or under

7590contract with a licensed home health agency

7597or is referred by a licensed nurse registry.

760529) Staffing services" means services

7610provided to a health care facility, school,

7617or other business entity on a temporary or

7625school- year basis pursuant to a written

7632contract by licensed health care personnel

7638and by certified nursing assistants and home

7645health aides who are employed by, or work

7653under the auspices of, a licensed home health

7661agency or who are registered with a licensed

7669nurse registry.

767168. Section 400. 464 provides in pertinent part:

76791) The requirements of part II of

7686chapter 408 apply to the provision of

7693services that require licensure pursuant to

7699this part and part II of chapter 408 and

7708entities licensed or registered by or

7714applying for such licensure or registration

7720from the Agency for Health Care

7726Administration pursuant to this part. A

7732license issued by the agency is required in

7740order to operate a home health agency in this

7749state

775069. Section 400. 474 provides in pertinent part:

77581) The agency may deny, revoke, and suspend

7766a license and impose an administrative fine

7773in the manner provided in chapter 120.

77802) Any of the following actions by a home

7789health agency or its employee is grounds for

7797disciplinary action by the agency:

7802a) Violation of this part, part II of

7810chapter 408, or of applicable rules.

7816b) An intentional, reckless, or negligent

7822act that materially affects the health or

7829safety of a patient.

7833d) Preparing or maintaining fraudulent

7838patient records, such as, but not limited to,

7846charting ahead, recording vital signs or

7852symptoms that were not personally obtained or

7859observed by the home health agency' s staff at

7868the time indicated, borrowing patients or

7874patient records from other home health

7880agencies to pass a survey or inspection, or

7888falsifying signatures.

78905) The agency shall impose a fine of $ 5, 000

7901against a home health agency that

7907demonstrates a pattern of failing to provide

7914a service specified in the home health

7921agency' s written agreement with a patient or

7929the patient' s legal representative, or the

7936plan of care for that patient, unless a

7944reduction in service is mandated by Medicare,

7951Medicaid, or a state program or as provided

7959in s. 400. 3). 492( A pattern may be

7968demonstrated by a showing of at least three

7976incidences, regardless of the patient or

7982service, where the home health agency did not

7990provide a service specified in a written

7997agreement or plan of care during a 3- month for

8007period. The agency shall impose the fine

8014each occurrence. The agency may also impose

8021additional administrative fines under

8025s. 400. 484 for the direct or indirect harm to

8035a patient, or deny, revoke, or suspend the

8043license of the home health agency for a

8051pattern of failing to provide a service

8058specified in the home health agency' s written

8066agreement with a patient or the plan of care

8075for that patient. emphasis added).

808070. Section 400. 484 provides:

80851) In addition to the requirements of

8092s. 408. 811, the agency may make such

8100inspections and investigations as are of

8106necessary in order to determine the state

8113compliance with this part, part II of

8120chapter 408, and applicable rules.

81252) The agency shall impose fines for

8132various classes of deficiencies in accordance

8138with the following schedule:

8142a) A class I deficiency is any act,

8150omission, or practice that results in a

8157patient' s death, disablement, or permanent

8163injury, or places a patient at imminent risk

8171of death, disablement, or permanent injury.

8177Upon finding a class I deficiency, the agency

8185shall impose an administrative fine in the

8192amount of $ 15, 000 for each occurrence and

8201each day that the deficiency exists.

8207b) A class II deficiency is any act,

8215omission, or practice that has a direct

8222adverse effect on the health, safety, or

8229security of a patient. Upon finding a class

8237II deficiency, the agency shall impose an

8244administrative fine in the amount of $ 5, 000

8253for each occurrence and each day that the

8261deficiency exists.

8263c) A class III deficiency is any act,

8271omission, or practice that has an indirect,

8278adverse effect on the health, safety, or

8285security of a patient. Upon finding an

8292uncorrected or repeated class III deficiency,

8298the agency shall impose an administrative

8304fine not to exceed $ 1, 000 for each occurrence

8314and each day that the uncorrected or repeated

8322deficiency exists.

8324d) A class IV deficiency is any act,

8332omission, or practice related to required

8338reports, forms, or documents which does not

8345have the potential of negatively affecting

8351patients. These violations are of a type

8358that the agency determines do not threaten

8365the health, safety, or security of patients.

8372Upon finding an uncorrected or repeated class

8379IV deficiency, the agency shall impose an

8386administrative fine not to exceed $ 500 for

8394each occurrence and each day that the

8401uncorrected or repeated deficiency exists.

84063) In addition to any other penalties

8413imposed pursuant to this section or part, the

8421agency may assess costs related to an

8428investigation that results in a successful

8434prosecution, excluding costs associated with

8439an attorney' s time.

844371. Section 400. 487 provides in pertinent part:

84512) When required by the provisions of

8458chapter 464; part I, part III, or part V of

8468chapter 468; or chapter 486, the attending

8475physician, physician assistant, or advanced

8480registered nurse practitioner, acting within

8485his or her respective scope of practice,

8492shall establish treatment orders for a

8498patient who is to receive skilled care. The

8506treatment orders must be signed by the

8513physician, physician assistant, or advanced

8518registered nurse practitioner before a claim

8524for payment for the skilled services is

8531submitted by the home health agency. If the

8539claim is submitted to a managed care

8546organization, the treatment orders must be

8552signed within the time allowed under the

8559provider agreement. The treatment orders

8564shall be reviewed, as frequently as the

8571patient' s illness requires, by the physician,

8578physician assistant, or advanced registered with the

8585nurse practitioner in consultation

8589home health agency.

85924) Each patient has the right to be

8600informed of and to participate in the

8607planning of his or her care. Each patient the

8616must be provided, upon request, a copy of

8624plan of care established and maintained for

8631that patient by the home health agency.

86385) When nursing services are ordered, the

8645home health agency to which a patient has

8653been admitted for care must provide the

8660initial admission visit, all service

8665evaluation visits, and the discharge visit by

8672a direct employee. Services provided by

8678others under contractual arrangements to a

8684home health agency must be monitored and

8691managed by the admitting home health agency.

8698The admitting home health agency is fully

8705responsible for ensuring that all care

8711provided through its employees or contract

8717staff is delivered in accordance with this

8724part and applicable rules.

87286) The skilled care services provided by a

8736home health agency, directly or under

8742contract, must be supervised and coordinated

8748in accordance with the plan of care.

875572. Florida Administrative Code Rule 59A- 0215 8. provides:

87641) A plan of care shall be established in

8773consultation with the physician, physician

8778assistant, or advanced registered nurse

8783practitioner, pursuant to Section 400. 487,

8789F. S., and the home health agency staff who

8798are involved in providing the care and

8805services required to carry out the physician,

8812physician assistant, or advanced registered The

8818nurse practitioner' s treatment orders.

8823plan must be included in the clinical record

8831and available for review by all staff

8838involved in providing care to the patient.

8845The plan of care shall contain a list of

8854individualized specific goals for each

8859skilled discipline that provides patient

8864care, with implementation plans addressing

8869the level of staff who will provide care, the

8878frequency of home visits to provide direct

8885care and case management.

88892) Home health agency staff must follow the

8897physician, physician assistant, or advanced

8902registered nurse practitioner' s treatment

8907orders that are contained in the plan of

8915care. If the orders cannot be followed and

8923must be altered in some way, the patient' s

8932physician, physician assistant, or advanced

8937registered nurse practitioner must be

8942notified and must approve of the change. Any

8950verbal changes are put in writing and signed

8958and dated with the date of receipt by the

8967nurse or therapist who talked with the

8974physician, physician assistant, or advanced

8979registered nurse practitioner' s office.

89843) The patient, caregiver or guardian must

8991be informed by the home health agency

8998personnel that:

9000a) He has the right to be informed of

9009the plan of care;

9013b) He has the right to participate in

9021the development of the plan of care;

9028and

9029c) He may have a copy of the plan if

9039requested.

904073. Rule 59A- 003 8. provides in pertinent part:

90495) In addition to any other penalties

9056imposed pursuant to this rule, the agency may

9064assess costs related to an investigation that

9071results in a successful prosecution, pursuant

9077to Section 400. 3), 484( F. S. The prosecution

9086can be resolved by stipulation settlement or

9093final hearing. The following costs may

9099apply: travel costs related to the

9105investigation; investigative time by AHCA' s

9111surveyor or surveyors including travel time;

9117processing time by AHCA' s professional staff

9124and administrative support staff of Field

9130Operations, and processing time for

9135administrative support staff and professional

9140staff of the AHCA Licensed Home Health

9147Programs Unit in Tallahassee. The costs

9153related to AHCA' s professional staff and

9160support staff will be determined according to

9167the hourly rate of pay for those positions.

917574. AHCA has established by clear and convincing evidence

9184that Faith Home has failed to assure that the plan of care was

9197followed for various patients in its care and/ or that Faith Home

9209has failed to implement the plan of care for various patients in

9221its care.

922375. The evidence was overwhelming that Faith Home failed to

9233provide services to patients as enumerated above by: failing to

9243provide skilled nursing visits as ordered; failing to provide

9252home health aide services as ordered; failing to provide timely

9262physical therapy evaluations and/ or treatments as ordered;

9270failing to notify physicians when treatment plans were altered or

9280changed unilaterally; and/ or failing to record specific

9288assessments or observations as ordered for various patients.

929676. AHCA has established, by clear and convincing evidence,

9305that Faith Home has demonstrated patterns of failures to provide

9315a service specified in the home health agency' s written agreement

9326with a patient or the patient' s legal representative, or the plan

9338of care for that patient, in that Faith Home failed to provide

9350home health services visits as ordered in various patient' s plan

9361of care. This pattern was first demonstrated during the February

93712011 AHCA survey and was also found during the June 2011 AHCA

9383survey re- visit. The fine specified in section 400. 5) 474( is

9395appropriate.

939677. Faith Home has committed a Class III violation.

9405RECOMMENDATION

9406Based on the foregoing Findings of Fact and Conclusions of

9416Law, it is RECOMMENDED that Petitioner, Agency for Health Care

9426Administration, enter a final order finding that Faith Home:

94351. Violated section 400. 484 by committing a Class III

9445violation as identified during the February 2011 survey and found

9455again during the June 2011 survey and imposing an $ 1, 00 000.

9468administrative fine;

94702. Violated section 400. 5) 474( as found in no less than

9482107 instances when Faith Home failed to provide services ordered

9492by an appropriate authority and imposing a $ 45, 00 000.

9503administrative fine; and

95063. Pursuant to section 400. 3), 484( AHCA shall assess and

9517receive $ 2, 13 617. for the investigation costs associated with

9528this case as evidenced by the time expended by the three agency

9540witnesses.

9541DONE AND ENTERED this 19th day of April, 2012, in

9551Tallahassee, Leon County, Florida.

95551, 7

9557LYNNE A. QUIMBY- PENNOCK

9561Administrative Law Judge

9564Division of Administrative Hearings

9568The Desoto Building

95711230 Apalachee Parkway

9574Tallahassee, Florida 32399- 30 60

9579850) 488- 9675

9582Fax Filing 850) 921- 6847

9587www. state. us doah. fl.

9592Filed with the Clerk of the

9598Division of Administrative Hearings

9602this 19th day of April, 2012.

9608EN DNOTES

9610AHCA objected to the last page of Faith Home' s Exhibit 6, an

9623undated, unsigned " Discharge Instructions" sheet for patient 14.

9631Although admitted into evidence, this document is not probative.

96402/ Towards the end of 2010, Ms. Okpaleke had a family member who

9653was hospitalized, and Ms. Okpaleke was not in the office on a

9665daily basis, as she was attending to that circumstance.

96743/ In order to keep the June 2011 survey patients distinct from

9686the February 2011 survey patients, there will be the letter J"

9697attached to each patient involved in the June 2011 survey.

97074/ Although a skilled nursing visit was ordered, that was not

9718within the AAC and will not be discussed.

97265/ It is noted that patient 7 signed the December 29, 2010, PT

9739evaluation and the four PT revisit notes. Documents completed by

9749Faith Home employees reflect that the patient was " unable to

9759see," unable to sign" or " the patient is blind" in the signature

9771lines relating to services.

97756i Faith Home' s own policy requires that a " Client must have a

9788telephone or use of a] phone in close distance for emergency

9799situation."

9800i A tracheotomy is a surgical incision into a trachea

9810patient' s

9812throat) to keep the airway open sometimes a tube is inserted

9823therein); it helps facilitate breathing.

9828s~ Although not part of this AAC, a review of billing issues

9840based on records in error may be appropriate.

98489/ The actual date is illegible; it is either January 22 or 23,

98612011. Either January day would evidence services provided by a

9871HHA. Such services were rendered during the period Faith Home

9881claimed that the daughter would provide the services.

9889loi All future references to Florida Statutes will be to the 2011

9901version, unless otherwise indicated.

9905COPIES FURNISHED:

9907James H. Harris, Esquire

9911Agency for Health Care Administration

9916The Sebring Building, Suite 330D

9921525 Mirror Lake Drive, North

9926St. Petersburg, Florida 33701

9930Thomas W. Caufman, Esquire

9934Tammy Stanton, Esquire

9937Quintairos, Prieto, Wood and Boyer, P.A.

99434905 West Laurel Street

9947Tampa, Florida 33607

9950Elizabeth Dudek, Secretary

9953Agency for Health Care Administration

99582727 Mahan Drive, Mail Stop 1

9964Tallahassee, Florida 32308

9967William H. Roberts, Acting General Counsel

9973Agency for Health Care Administration

99782727 Mahan Drive, Mail Stop 3

9984Tallahassee, Florida 32308

9987Richard J. Shoop, Agency Clerk

9992Agency for Health Care Administration

99972727 Mahan Drive, Mail Stop 3

10003Tallahassee, Florida 32308

10006NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

10012All parties have the right to submit written exceptions within

1002215 days from the date of this Recommended Order. Any exceptions

10033to this Recommended Order should be filed with the agency that

10044will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/06/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 06/05/2012
Proceedings: Agency Final Order
PDF:
Date: 04/19/2012
Proceedings: Recommended Order
PDF:
Date: 04/19/2012
Proceedings: Recommended Order (hearing held February 10, 2012). CASE CLOSED.
PDF:
Date: 04/19/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 03/21/2012
Proceedings: Respondent's Proposed Findings of Fact and Conclusions of Law filed.
PDF:
Date: 03/20/2012
Proceedings: Agency's Proposed Recommended Order filed.
Date: 02/27/2012
Proceedings: Respondent's Proposed Exhibits (exhibits not available for viewing)
Date: 02/21/2012
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 02/10/2012
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/09/2012
Proceedings: Respondent's Third Notice of Filing Additional Proposed Exhibit (exhibit not available for viewing) filed.
PDF:
Date: 01/31/2012
Proceedings: Notice of Hearing (hearing set for February 10, 2012; 9:00 a.m.; Tampa, FL).
Date: 01/30/2012
Proceedings: CASE STATUS: Hearing Partially Held; continued to February 10, 2012; 9:00 a.m.; Tampa, FL.
PDF:
Date: 01/30/2012
Proceedings: Respondent's Second Notice of Filing Additional Proposed Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 01/27/2012
Proceedings: Respondent's Notice of Filing Additional Proposed Exhibits (exhibits not available for viewing) filed.
Date: 01/26/2012
Proceedings: Respondent's Notice of Filing Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 01/24/2012
Proceedings: Notice of Filing Agency's Trial Exhibits (exhibit not available for viewing) filed.
PDF:
Date: 01/23/2012
Proceedings: Respondent's Notice of Filing Proposed Exhibits filed.
PDF:
Date: 01/23/2012
Proceedings: Amended Administrative Complaint filed.
PDF:
Date: 01/19/2012
Proceedings: Notice of Filing Agency's (Proposed) Trial Exhibits filed.
PDF:
Date: 01/18/2012
Proceedings: Order Granting Unopposed Motion to Amend Administrative Complaint.
PDF:
Date: 01/18/2012
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 01/13/2012
Proceedings: Respondent's Supplemental Response to Agency's First Request for Production of Documents filed.
PDF:
Date: 01/13/2012
Proceedings: Unopposed Motion to Amend Administrative Complaint filed.
PDF:
Date: 12/07/2011
Proceedings: Notice of Depositions Duces Tecum (of Faith Home Health, Inc.) filed.
PDF:
Date: 11/14/2011
Proceedings: Respondent's Verified Response to Agency's First Set of Interrogatories filed.
PDF:
Date: 10/31/2011
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for January 30 and 31, 2012; 9:00 a.m.; Tampa and Tallahassee, FL).
PDF:
Date: 10/28/2011
Proceedings: Joint Notice of Available Trial Dates filed.
PDF:
Date: 10/27/2011
Proceedings: Respondent's Response to Agency's First Request for Production of Documents filed.
PDF:
Date: 10/27/2011
Proceedings: Respondent's Unverified Response to Agency's First Set of Interrogatories filed.
PDF:
Date: 10/21/2011
Proceedings: Order Granting Continuance (parties to advise status by October 31, 2011).
PDF:
Date: 10/20/2011
Proceedings: Respondent's Motion for Continuance filed.
PDF:
Date: 10/14/2011
Proceedings: Notice of Telephonic Deposition (of J. Peabody) filed.
PDF:
Date: 10/13/2011
Proceedings: Respondent's Notice of Filing Responses to Agency's First Request for Admissions filed.
PDF:
Date: 10/13/2011
Proceedings: Notice of Appearance (Thomas Caufman) filed.
PDF:
Date: 09/09/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/09/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 8 and 9, 2011; 9:00 a.m.; Tampa and Tallahassee, FL).
PDF:
Date: 09/08/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 09/02/2011
Proceedings: Initial Order.
PDF:
Date: 09/02/2011
Proceedings: Agency's First Request for Production of Documents filed.
PDF:
Date: 09/02/2011
Proceedings: First Request For Admissions filed.
PDF:
Date: 09/02/2011
Proceedings: Notice of Service of Agency's First Set of Interrogatories to Faith Home Health, Inc filed.
PDF:
Date: 09/01/2011
Proceedings: Election of Rights filed.
PDF:
Date: 09/01/2011
Proceedings: Notice (of Agency referral) filed.
PDF:
Date: 09/01/2011
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 09/01/2011
Proceedings: Administrative Complaint filed.

Case Information

Judge:
LYNNE A. QUIMBY-PENNOCK
Date Filed:
09/01/2011
Date Assignment:
09/02/2011
Last Docket Entry:
06/06/2012
Location:
Tampa, Florida
District:
Middle
Agency:
Other
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (10):

Related Florida Rule(s) (2):