98-005214 Elite Health Care Services, Inc. vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, June 15, 1999.

Summary: Agency presented sufficient facts to show Respondent had failed to file its renewal application timely and, therefore, was subject to late fees. Due to mitigating circumstance, late fee was reduced.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELITE HEALTH CARE SERVICES, INC, )

)

Petitioner, )

)

vs. ) Case No. 98-5214

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on April 6, 1999, in Arcadia, Florida.

APPEARANCES

For Petitioner: Edmund N. Jackson

Qualified Representative

Elite Health Care Services, Inc.

Post Office Box 2444

Arcadia, Florida 34265

For Respondent: Karel Baarslag, Esquire

Agency for Health Care Administration

State Regional Service Center

2295 Victoria Avenue

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

Should Petitioner be assessed a late fee for failure to

timely file its renewal application for its Home Health license?

PRELIMINARY STATEMENT

By letter dated November 2, 1998, the Agency for Health Care

Administration (Agency) advised Petitioner, among other things,

that it was being assessed a late fee in the amount of $2,700 for

failure to timely file its application for renewal of its Home

Care license. By letter dated November 11, 1998, Petitioner

protested the assessment of the late fee and requested a formal

hearing. By Notice dated November 24, 1998, the Agency referred

this matter to the Division of Administrative Hearings (Division)

for the assignment of an Administrative Law Judge and for the

conduct of a hearing.

At the hearing, Petitioner presented the testimony of Edmund

N. Jackson. Petitioner's Exhibits Numbered 1 and 2 were received

as evidence. The Agency presented the testimony of Cynthia

Karesh. The Agency's Exhibits Numbered 1-3 were received as

evidence.

A Transcript of this proceeding was filed with the Division

on April 14, 1999. The Agency filed its Proposed Recommended

Order. Petitioner elected not to file a proposed recommended

order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. At times pertinent to this proceeding, Petitioner was

licensed as a Non-Certified Home Health Agency, license no.

HHA203220961, with an effective date of October 1, 1997, and an

expiration date of September 30, 1998.

2. The Agency furnished Petitioner an application for

renewal of its license in June 1998. The renewal application was

due to be filed with the Agency 60 days before the expiration of

Petitioner's then current license.

3. Petitioner's application for renewal of its then current

license was received by the Agency on August 28, 1998. To avoid

any late fees, Petitioner's renewal application should have been

filed with the Agency no later than August 2, 1998. Petitioner's

renewal application was filed 26 days late. Petitioner did not

deny that its renewal application was filed late.

4. By letter dated November 2, 1998, the Agency notified

Petitioner that its renewal application had been received on

August 29, 1998, when in fact the renewal application was

received on August 28, 1998. The letter further advised

Petitioner that it was being assessed a late fee of $2,700.00.

This late fee was calculated by multiplying the number of days

late (27) times $100.00 per day. The date received set out in

the letter of November 2, 1999, was incorrect and the number of

days should have been 26. Therefore, the correct amount of the

late fee should have been $2,600.00.

5. The lateness of the renewal application was due to a

financial hardship that Petitioner was suffering at that time

because Petitioner had to purchase a Medicaid surety bond. There

were not enough funds for both the surety bond and application

renewal fee.

6. Petitioner has a waiver (Medicaid) for care of certain

handicapped persons contracted with the Human Services Foundation

which requires a surety bond.

7. Petitioner provides respite home health aid nurses and

homemaker's services.

8. There was no evidence that Petitioner had ever been late

before in filing its license renewal application.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to Sections 120.57(1), Florida Statutes.

10. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the

Agency must establish facts upon which its allegations are based

by clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection vs.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

11. Section 400.471(5), Florida Statutes, requires a home

health agency to submit its renewal application to the Agency 60

days before the license expiration date. Rule 59A-8.0086(4),

Florida Administrative Code provides for late fees in the amount

of $100.00 per day for each day the renewal application is late,

up to a maximum amount of $5,000.00. It appears that the Agency

does not have a specific rule which provides for reduction of

late fees in the event of mitigating circumstances. However, the

Agency's position, as established in Home Nursing Services, Inc.

vs. State of Florida Agency for Health Care Administration , AHCA

98-396-FCI-OLC, has been to reduce late fees where there is

showing of mitigating circumstances such as being a Medicaid

provider or never being late in renewing a license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law and the mitigating circumstances, it is recommended that the

Agency enter a final order imposing a late fee of $500.00 to be

paid by Petitioner within 60 days of the date of the final order,

subject to any other condition the Agency may deem appropriate.

DONE AND ENTERED this 15th day of June, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 15th day of June, 1999.

COPIES FURNISHED:

Edmund N. Jackson, Administrator

Elite Health Care Services, Inc.

Post Office Box 2444

Arcadia, Florida 34265

Karel Baarslag, Esquire

Agency for Health Care Administration

State Regional Service Center

2295 Victoria Avenue

Fort Myers, Florida 33901

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Paul J. Martin, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.