98-002347 Agency For Health Care Administration vs. Mega Nursing Services, Inc., D/B/A Mega Nursing Services Status: Closed Recommended Order on Wednesday, June 9, 1999.

Summary: Home health agency did not have documentation to establish that two employees were free from communicable diseases.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 98-2347

)

MEGA NURSING SERVICES, INC., )

d/b/a MEGA NURSING SERVICES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 17, 1999, by video teleconference at Fort Lauderdale,

Florida, before Susan B. Kirkland, a designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer Steward, Esquire

Agency for Health Care Administration

1400 Commercial Boulevard, Suite 110

Fort Lauderdale, Florida 33309

For Respondent: Jason H. Clark, Esquire

Post Office Box 17486

West Palm Beach, Florida 33416

STATEMENT OF THE ISSUE

Whether Respondent violated Rule 59A-8.0185(2)(a), Florida

Administrative Code, as set forth in the Administrative

Complaint, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 17, 1998,

Petitioner, Agency for Health Care Administration (Agency),

notified Respondent, Mega Nursing Services, Inc., d/b/a Mega

Nursing Services (Mega), that the Agency intended to impose an

administrative fine of $1,000 based on Respondent's alleged

violation of provisions of Chapter 59A-8, Florida Administrative

Code. Mega requested an administrative hearing, and the case was

forwarded to the Division of Administrative Hearings on May 14,

1998.

The final hearing was scheduled for August 26, 1998. On

August 26, 1998, an Agreed-To Motion for Continuance was filed,

requesting a continuance. The M otion was granted, and the final

hearing was rescheduled for October 30, 1998. On September 28,

1998, another Agreed-To Motion for Continuance was filed. The

case was rescheduled for February 17, 1999.

At the final hearing, Petitioner called Jeanne Tarr and

Frank C. Braxton as its witnesses. Petitioner entered no

exhibits into evidence. Respondent called Donna Lycan as its

witness. Respondent's Composite Exhibit 1 was entered into

evidence.

At the final hearing, the parties agreed to file proposed

recommended orders within ten days of the filing of the

transcript, which was filed on March 19, 1999. On March 18,

1999, Respondent filed a Motion for Continuance, requesting an

extension of time in which to file its proposed recommended

order. By Order dated March 22, 1999, the time for filing

proposed recommended orders was extended to May 17, 1999. The

parties timely filed P roposed R ecommended O rders, which have been

considered in rendering this R ecommended O rder.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent,

Mega Nursing Services, Inc., d/b/a/ Mega Nursing Services (Mega)

was licensed to operate a home health agency (HHA) at

1879 West Hillsboro Boulevard, Deerfield Beach, Florida 33442, in

compliance with Chapter 400, Part IV, Florida Statutes, and

Chapter 59A-8, Florida Administrative Code.

2. Petitioner, Agency for Health Care Administration

(Agency), routinely inspects licensed HHA's once a year. The

Agency employs surveyors trained to evaluate HHA's compliance

with Chapter 400, Part IV, Florida Statutes, and Chapter 59A-8,

Florida Administrative Code.

3. HHA's are licensed according to the geographic service

areas that they serve, and the Agency surveys each HHA in

accordance with its particular geographic service area.

Geographic service areas roughly correspond to counties. Thus,

if an owner has HHA's licensed in more than one geographic

service area, each licensed HHA is surveyed individually.

4. During the survey process, the Agency's surveyors enter

the HHA, announce the survey to whoever is in charge, and then

begin the survey. The survey consists of reviews of the HHA's

administrative and patient records, interviews with staff, and

interviews with patients. The HHA's provide the documents which

are reviewed by the surveyors. For example, if the surveyor

requests the personnel files for the personnel who work for the

HHA, the HHA provides such files to the surveyor.

5. After the survey is concluded, the surveyors memorialize

their findings in a report that is sometimes referred to as a

"Statement of Deficiencies" or a "2567 form." A copy of the

report is sent to the HHA to inform it of the Agency's findings.

6. Mega has offices in Deerfield Beach, Hypolux, and North

Palm Beach. Each is licensed separately to operate as a home

health agency.

7. On March 31, 1997, Jeanne Tarr, a Registered Nurse

Specialist employed by the Agency, performed an annual survey of

Mega's HHA located at 1879 W. Hillsboro Boulevard, Deerfield

Beach. During the survey in order to evaluate Mega's compliance

with the Agency's requirements pertaining to personnel, Ms. Tarr

asked Mega's Director of Nursing for a list of all personnel and

their files.

8. The Director of Nursing supplied Ms. Tarr with eight

personnel files and the personnel file of Mega's Administrator.

After reviewing these files, Ms. Tarr determined that two of the

eight files contained documentation of a current physical

examination but no statement from a healthcare professional that

the employees were free from communicable diseases. Further,

Ms. Tarr determined from a review of the file of Mega's

A dministrator, Donna Lycan, that the most recent documentation

showing that Ms. Lycan was free from communicable diseases was

dated April 1993. Ms. Lycan, who was also a nurse, made

supervisory visits to patients' homes when the D irector of

N ursing was not available to do so.

9. Ms. Tarr advised the D irector of N ursing and the person

in charge of personnel that the files did not contain

documentation to show that the employees were free from

communicable diseases. No further documentation was supplied to

Ms. Tarr.

10. After the survey was completed, Ms. Tarr prepared a

report of her findings. The report was furnished to Mega.

11. On February 23, 1998, Frank C. Buxton, a Registered

Nurse Specialist employed by the Agency, performed an annual

survey of Mega's Deerfield Beach HHA. In order to evaluate

Mega's compliance with personnel requirements, Mr. Buxton

requested Mega's Director of Nursing to provide him with a list

of all personnel and their files.

12. Mega's Director of Nursing gave Mr. Buxton eleven

personnel files, including the A dministrator's file, to review.

After his review, Mr. Buxton concluded that two of the eleven

personnel files contained no documentation to prove that the

employees had the required physical examinations and were free

from communicable diseases, including tuberculosis. The

employees were Donna Lycan, the A dministrator, and Elaine Lewis,

a certified nursing assistant.

13. During the survey, Mr. Buxton advised the Director of

Nursing, Bernice Craven, that the information was not in the

files and gave her an opportunity to locate the documentation.

No further documentation was supplied.

14. After the survey was completed, Mr. Buxton prepared a

report of his findings. A copy of the report was provided to

Mega.

15. During the March 1997 and February 1998 surveys, the

Agency's surveyors relied on Mega's representatives to identify

the personnel for Mega's Deerfield HHA and to provide the files

for those personnel.

16. Ms. Lycan was the administrator of three of Mega's

offices, including the Deerfield Beach office. Her complete

personnel file was maintained in an office other than the

Deerfield office.

17. At the final hearing Mega produced records establishing

that Donna M. Lycan had been examined by Dr. Sebastian on

January 23, 1996, and by Dr. Ahmed on March 5, 1998, and was

found to be free of communicable diseases. The records also

indicated that Ms. Lycan had a tuberculin test on October 24,

1995, and March 5, 1998.

18. Mega also produced documents stating that Elaine Lewis

was free of communicable diseases on February 2, 1996, and free

of tuberculosis on February 27, 1998.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

20. The Agency has alleged that Mega violated Rule 59A-

8.0185, Florida Administrative Code, which provides:

(1) The [home health] agency shall have

written policies and procedures to ensure the

provision of acceptable, adequate and

appropriate services.

(2) Personnel policies available to all full

and part-time employees shall include the

following:

(a) requirement that, prior to contact with

patients, the employee must submit a

statement from an appropriately licensed

health care professional, based on an exam

within the last six months, that the employee

shows no apparent signs or symptoms of

communicable disease and the results of a

tuberculosis test. . . .Every two years, each

employee shall submit a statement from a

appropriately licensed health care

professional that the employee is not a risk

of communicating diseases including

tuberculosis to any person under the care of

the [home health] agency;

* * *

(3) The [home health] agency shall maintain

a file for all employees which shall include

name and address of employee, social security

number, date of birth, name and address of

next of kin or guardian, evidence of

qualifications, licensure or registration if

applicable, contracts if applicable, and

dates of employment and separation from the

[home health] agency. Evidence of continuing

education, in-service, training for home

health aides shall be on file, and this

information shall be kept in the personnel

files or in a separate filing system

maintained for this purpose and shall be

available for inspection within three hours

of request.

(4) The agency shall maintain a record of

the employment or contractual history of all

agency personnel, both employed and under

contract, shall make submission of such

history a condition of employment or

contract, and shall verify the history unless

through diligent efforts such verification is

not possible. Diligent efforts shall involve

at least two documented attempts to verify.

21. During the 1997 survey, the personnel files at Mega's

Deerfield Beach office did not show that Ms. Lycan and two other

Mega employees had timely physical examinations and tuberculin

tests showing that they were free of communicable diseases.

Although the Agency's surveyor advised the D irector of N ursing

and the personnel officer that the documentation was missing, no

further documentation was supplied.

22. During the 1998 survey, a review of Ms. Lycan's file

and Ms. Lewis' file showed no evidence that Ms. Lycan and

Ms. Lewis were free of communicable diseases, including

tuberculosis. Again Mega's Director of Nursing was advised that

the documentation was missing, but no additional documentation

was given to the surveyor.

23. At the final hearing, Mega produced documentation

establishing that on the date of the 1998 survey neither

Ms. Lycan nor Ms. Lewis had documentation in existence anywhere

that showed they were free from communicable diseases two years

since the last physician's statement.

24. Based on the evidence, there were three employees

without documentation on the absence of communicable diseases

during the 1997 survey. One of the employees was identified as

Ms. Lycan. The other two employees were not identified. Even if

one of the unidentified employees was Ms. Lewis, the evidence

shows that Mega did not demonstrate that the third employee had

been examined and pronounced free from communicable diseases.

25. Respondent argues that Rule 59A-8.0185, Florida

Administrative Code, requires only that the employee present a

statement every two years and not that the HHA has to maintain

the documentation. Respondent's argument is without merit. It

is the responsibility of the HHA to ensure that its employees who

have client contact be free from communicable diseases. In order

to do so, the HHA must require the employees to provide

statements from health care professionals that the employees are

free from communicable diseases. The commonsense way for the HHA

to demonstrate to the Agency that its employees are free from

communicable disease as required by the rule is to provide the

Agency with a copy of the health care professional's statements

when requested to do so. Whether the HHA maintains the

statements in one particular office is up to the HHA as long as

the HHA can show the documentation to the Agency on request.

Mega was given an opportunity both in 1997 and 1998 to get the

documentation from its other offices but failed to do so. In

1998, it would have been impossible because the documentation was

not in existence because the employees had not had the required

physical examinations or tuberculin tests.

26. The Agency has established that Mega violated Rule 59A-

8.0185, Florida Administrative Code, in the 1997 and the 1998

survey. Thus, the violation in 1998 is a repeat deficiency.

27. Rule 59A-8.0086(2), Florida Administrative Code,

provides:

(2) The AHCA shall suspend or revoke a

license or impose a fine,

* * *

(c) if the home health agency fails to

comply with the other provisions of this rule

or Home Health Services Act (Chapter 400,

Part IV, F.S.).

(3) The action taken by AHCA regarding

subsections (1) and (2) above shall be based

on the following:

(a) The gravity of the violation, including

the probability that death or serious

physical or emotional harm to a patient will

result or has resulted, and the severity of

actual or potential harm;

(b) Actions taken by the home health agency

to correct violations; and

(c) Any previous violations.

28. Mega had violations of Rule 59A-8.0185, Florida

Administrative Code, in 1997 and 1998. It does not appear that

Mega took actions to correct the 1997 violation since it occurred

again in 1998 and involved at least one of the same employees

involved in 1997. It is obviously important to have employees

who are providing home health services to patients to be free

from communicable diseases. In order to ensure that this

requirement is fulfilled, the HHA must receive physician

statements that the employees are free from communicable

diseases.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding that

Mega Nursing Services, Inc., d/b/a Mega Nursing Services violated

Rule 59A-8.0185, Florida Administrative Code, and imposing a fine

of $1,000.

DONE AND ENTERED this 9th day of June, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June, 1999.

COPIES FURNISHED:

Jennifer Steward, Esquire

Agency for Health Care Administration

1400 Commercial Boulevard, Suite 110

Fort Lauderdale, Florida 33309

Jason H. Clark, Esquire

Post Office Box 17486

West Palm Beach, Florida 33416

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Paul J. Martin, General Counsel

Agency for Health Care Administration

Fort Knox Building 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

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.