96-004105 Agency For Health Care Administration vs. Care R Us, Inc. Status: Closed Recommended Order on Thursday, March 20, 1997.

Summary: Respondent failed to produce supporting records due to mistake and misinterpretation. Respondent attempted to produce records shortly after request. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4105

)

CARE R US, INC., )

d/b/a CARE ARE US, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held by

video teleconference in this case on November 13, 1996, at Miami,

Florida, before Errol H. Powell, a duly designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency for Health Care Administration

Manchester Building rd st

8355 Northwest 53 Street, 1 Floor

Miami, Florida 33166

For Respondent: Ms. Arais A. Sanchez, Administrator

Care R Us, Inc.

1800 West 49th Street, Suite 324 R

Hialeah, Florida 33012

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the administrative complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated July 12, 1996, the Agency

for Health Care Administration (Petitioner) charged Care R Us,

Inc., d/b/a Care R us, Inc. (Respondent) with violating Rule 59A-

8.0086(1)d, Florida Administrative Code. Petitioner alleged that

all of Respondent’s patients were referred to it by another

certified agency, that Respondent was providing staffing for the

certified agency, that the management and evaluation of the care

of the patients was performed by the certified agency and that

the patients’ clinical records were maintained by the certified

agency. By letter dated August 1, 1996, Respondent disputed the

allegations of fact and requested a formal hearing. On August

28, 1996, this matter was referred to the Division of

Administrative Hearings.

At hearing, Petitioner presented the testimony of one

witness and entered one exhibit into evidence. Respondent

presented the testimony of two witnesses and entered no exhibits

into evidence.

No transcript of the hearing was ordered. The parties

submitted proposed findings of fact which have been considered in

this recommended order.

FINDINGS OF FACT

1. There is an inference and a finding is made that Care R

Us, Inc., d/b/a Care R Us (Respondent) is a licensed Home Health

Agency. 1

2. On December 29, 1995, the Agency for Health Care

Administration (Petitioner) conducted a survey of Respondent to

evaluate Respondent’s compliance with state regulations.

3. Petitioner’s surveyor requested Respondent to produce

the records of its patients (patient records). Respondent

complied.

4. None of the patient records showed that Respondent had

provided direct service to patients for a period of six

consecutive months. If such records are not produced at the time

requested, Petitioner assumes that the licensee does not have the

records and that the service is not being provided.

5. The survey conducted on December 29, 1995, was

Petitioner’s first survey of Respondent.

6. At the time of the survey, Respondent misinterpreted

Petitioner’s request and inquiry. As a result, Respondent failed

to provide Petitioner with patient records showing that

Respondent had provided direct service to two patients for a

period of six consecutive months.

7. Approximately two days later, Respondent realized its

mistake. The next month, January 1996, Respondent attempted to

contact Petitioner’s surveyor on several occasions to make

arrangements for the production and review of the patient records

for the two patients. Respondent was unsuccessful. Because of

patient confidentiality, Respondent could not include the names

of the patients in any of the messages left for Petitioner’s

surveyor. Petitioner’s surveyor did not contact Respondent in

response to the messages.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the subject matter of this proceeding and the parties

thereto pursuant to Subsection 120.57(1), Florida Statutes.

9. License revocation proceedings are penal in nature. The

burden of proof is on Petitioner to establish the truthfulness of

the allegations in the administrative complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So.2d 292 (Fla.

1987); Balino v. Department of Health and Rehabliitative

Services , 348 So.2d 349 (Fla. 1st DCA 1977).

10. Section 400.474, Florida Statutes, authorizes

Petitioner to take disciplinary action for the violation of its

rules and to impose an administrative fine for such violation.

Chapter 59A-8, Florida Administrative Code, provides minimum

standards for home health agencies.

11. Rule 59A-8.0086, Florida Administrative Code, provides

in pertinent part:

(1) The AHCA shall deny any initial or

renewal application for license, or impose a

fine,

* * *

(d) if the applicant fails to provide at

least one service directly to patients for a

period of six consecutive months.

12. Petitioner demonstrated that, on the day of its survey,

Respondent failed to provide records showing that it provided

direct service to patients for at least six consecutive months.

Petitioner’s argument is persuasive that Respondent should have

provided the records at the time of the survey. However, even

though Respondent had the records, through mistake and

misinterpretation, Respondent failed to provide the necessary

documentation. Furthermore, within a very short time span

subsequent to the survey, Respondent made several attempts to

provide the necessary documentation to Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the administrative complaint.

DONE AND ENTERED this 20 th day of March, 1997, in

Tallahassee, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March 1997.

ENDNOTE

1/ Petitioner did not enter a licensu re certification into

evidence. There was no request for admissions filed to provide

that Respondent was a licensed Home Health Agency. However,

Petitioner’s witness testified that she evaluated Respondent as a

Home Health Agency, and Respondent’s witness testified that

Respondent had “a license”.

COPIES FURNISHED:

Jean Claude Dugue, Esquire

Agency for Health Care

Administration

8355 Northwest 53rd Street

Miami, Florida 33166

Anais A. Sanchez, Administrator

Care R Us, Inc.

1800 West 49 Street, Suite 324R

Hialeah, Florida 33012

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox, Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

Fort Knox, Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.