08-005655 Never Alone Home Care, Inc. vs. Agency For Health Care Administration Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, February 19, 2009.

STATE OF FLORIDA FILED AHCA

AGENCY FOR HEALTH CARE ADMINISTRATION AGDICY CLERK

NEVER ALONE HOME CARE Case NVOTias ePik 15

INC

Petitioner

VS Fraes No 2008011656

S OLC

STATE OF FLORIDA RENDITION NO AH A Og I I

AGENCY FOR HEALTH CARE

ADMINISTRATION

Respondent

FINAL ORDER

Having reviewed the Notice of Intent to Deny dated October 13 2008

attached hereto and incorporated herein Ex 1 and all other matters of

record the Agency for Health Care Administration Agency has entered

into a Settlement Agreement Ex 2 with the parties to these proceedings

and being well advised in the premises finds and concludes as follows

ORDERED

1 The attached Settlement Agreement is approved and adopted as

part of this Final Order and the parties are directed to comply with the

terms of the Settlement Agreement

2 The Applicant s initial application for registration for homemaker

companion service is withdrawn from further review in accordance with the

terms of the Settlement Agreement

3 The Petitioner s request for formal administrative proceeding is

withdrawn

4 Each party shall bear its own costs and attorney s fees

5 The above styled case is hereby closed

DONE and ORDERED this day of 2009

in Tallahassee Leon County Florida

11

Holly Benspn Secretary

Agency for ealth Care Administration

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

TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY

OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA AND A

SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW WITH

THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE

AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES

REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH

THE FLORIDA APPELLATE RULES THE NOTICE OF APPEAL MUST BE FILED

WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to

Karen L Goldsmith Esquire Thomas M Hoeler Senior Attorney

Jonathan S Grout Esquire Office of the General Counsel

Goldsmith and Grout P A Agency for Health Care Admin

2160 Park Avenue North 525 Mirror Lake Drive North 330

Winter Park Florida 32789 St Petersburg Florida 33701

U S Mail Interoffice Mail

Jan Mills Honorable Lawrence P Stevenson

Agency for Health Care Admin Administrative Law Judge

2727 Mahan Drive Bldg 3 MS 3 Division of Administrative Hearings

Tallahassee Florida 32308 The Desoto Building

Interoffice Mail 1230 Apalachee Parkway

Tallahassee Florida 32399 3060

Interoffice Mail

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of this Final Order was

served on the above named person s and entities by U S Mail or the

method designated on this day of 2009

Z

Richard S op Agency Cl

Agency r Health Care A ministration

2727 Mahan Drive Building 3

Tallahassee Florida 32308 5403

850 5873 922

FLORIDA AGENCY FORHEXTHOVtEADMINISTMATION

CHARLIE CRIST HOLLY SECRETARY BENSON

GOVERNOR

October 13 2008 CERTIFIED Article Number D

Certified

7160 3401 9848 1046 4201

Vera Clark Managing E SENDERS RECORD

Never Alone Home Care c 1 L

1074 Wynn StreetC File Number 39965490

Sanford FL 32773 C tot Case 2008011656

g Of6InisatFion

CarICE OF INTENT TO DENY

It is the decision of this Agency that the application for registration as a homemaker companion

service for Never Alone Home Care Inc is DENIED

Never Alone Home Care Inc submitted an application for registration as a homemaker 2008 companion The

service that was received by the Agency for Health Care Administration on June 11

was sent on

application was reviewed and a letter regarding an item omitted card sent from for the the application

July 8 2008 which was payment so that Florida the fingerprint of Law Enforcement managing and employee FBI The

could be reviewed and processed by the Department was

the card

payment was received on July 16 2008 and an acceptable clearance for fingerprint

received by the Agency on August 20 2008

On August 14 2008 a complaint of unregistered activity was investigated Never Alone Home

Care was found to be operating without being registered the Agency for Health Care

Administration A Notice of Unregistered Operation was given to Vera Clark on August 14

2008 that stated Never Alone Home Care Inc could not provide or offer homemaker companion

services according to Florida law since it was not registered

was

A follow up visit was made to Never Alone Home Care Inc on September 8 2008 to There

evidence that Never Alone Home Care Inc was contracting to place personnel provide activities

and other

personal care services including assistance with the bathing bathroom care services activities

of daily living included in personal care Since personal by independent

contractors require a nurse registry license per state law a Notice of Unlicensed Activity was stating

that Never Alone Home Care Inc must cease and desist operating as a nurse registry given

to Vera Clark on September 19 2008

Never Alone Home Care Inc was found to be providing services that cannot be provided Inc by was

homemakers and companions in section 400 462 F S Since Never Alone Home Care a

service and

providing services that are beyond the scope of a homemaker for homemaker companion services require cannot be

nurse registry license per state law the application companion

approved

t

AHCA online at

2727 Mahan Drive MS 34 32308 httn ahca myflorida com Visit

Tallahassee Florida

c V EXHIBIT

Page 2

October 13 2008

Never Alone was previously registered as a homemaker companion service and this registration

expired without renewal on July 13 2006 On April 19 2005 Never Alone was found have

placed a companion in the home of a hospice patient that provided personal care and

administered medication These were services beyond the scope of the homemaker companion

services registration A Notice of Unlicensed Operation as a home health agency was sent to

Never Alone on April 20 2005

The basis for this action is pursuant to authority of Section 60 120 Florida Statutes F S and

Section 408 815 1 c F S which states as follows

1 In addition to the grounds provided in authorizing statutes grounds that may be used by the

agency for denying and revoking a license or change of ownership application include any of the

following actions by a controlling interest

c A violation of this part authorizing statutes or applicable rules

d A demonstrated pattern of deficient performance

400 509 Registration of particular service providers exempt from licensure certificate of

registration regulation of registrants

1 Any organization that provides companion services or homemaker services and does not

provide a home health service to a person is exempt from licensure under this part However any

organization that provides companion services or homemaker services must register with the

agency

2 The requirements of part II of chapter 408 apply to the provision of services that require

registration or licensure pursuant to this section and part II of chapter 408 and entities registered

by or applying for such registration from the Agency for Health Care Administration pursuant to

this section Each applicant for registration and each registrant must comply with all provisions

of part II of chapter 408 Registration or a license issued by the agency is required for the

operation of an organization that provides companion services or homemaker services

400 462 F S 7 Companion or sitter means a person who spends time with or cares for an

elderly handicapped or convalescent individual and accompanies such individual on trips and

outings and may prepare and serve meals to such individual A companion may not provide

hands on personal care to a client

400 462 F S 16 Homemaker means a person who performs household chores that include

housekeeping meal planning and preparation shopping assistance and routine household

activities for an elderly handicapped or convalescent individual A homemaker may not provide

hands on personal care to a client

rage

October 13 2008

400 506 1 S F A nurse registry is exempt from the licensing requirements of a home health

agency but must be licensed as a nurse registry The requirements of part II of chapter 408 apply

to the provision of services that require licensure pursuant to ss 400 518 506 400 and part II of

chapter 408 and to entities licensed by or applying for such license from the Agency for Health

Care Administration pursuant to ss 400 506 400 518 A license issued by the agency is required

for the operation of a nurse registry

400 506 21 F S Nurse registry means any person that procures offers promises or

attempts to secure health care related contracts for registered nurses licensed practical nurses

certified nursing assistants home health aides companions or homemakers who are

compensated by fees as independent contractors including but not limited to contracts for the

provision of services to patients and contracts to provide private duty or staffing services to

health care facilities licensed under chapter 395 this chapter or chapter 429 or other business

entities

400 506 6 b F S Nurse Registry A certified nursing assistant or home health aide

referred for contract in a private residence shall be limited to assisting a patient with bathing

dressing toileting grooming eating physical transfer and those normal daily routines the

patient could perform for himself or herself were he or she physically capable

408 812 1 F S A person or entity may not offer or advertise services that require licensure as

defined by this part authorizing statutes or applicable rules to the public without obtaining a

valid license from the agency A licenseholder may not advertise or hold out to the public that he

or she holds a license for other than that for which he or she actually holds the license

2 The operation or maintenance of an unlicensed provider or the performance of any services

that require licensure without proper licensure is a violation of this part and authorizing statutes

Unlicensed activity constitutes harm that materially affects the health safety and welfare of

clients The agency or any state attorney may in addition to other remedies provided in this part

bring an action for an injunction to restrain such violation or to enjoin the future operation or

maintenance of the unlicensed provider or the performance of any services in violation of this

part and authorizing statutes until compliance with this part authorizing statutes and agency

rules has been demonstrated to the satisfaction of the agency

3 It is unlawful for any person or entity to own operate or maintain an unlicensed provider If

after receiving notification from the agency such person or entity fails to cease operation and

apply for a license under this part and authorizing statutes the person or entity shall be subject to

penalties as prescribed by authorizing statutes and applicable rules Each day of continued

operation is a separate offense

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STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

NEVER ALONE HOME CARE INC DOAH No 08 5655

Petitioner Fraes No 2008011656

VS

STATE OF FLORIDA

AGENCY FOR HEALTH CARE

ADMINISTRATION

Respondent

SETTLEMENT AGREEMENT

The Petitioner Never Alone Home Care Inc the Applicant and Respondent State of

Florida Agency for Health Care Administration the Agency by and through their undersigned

representatives and pursuant to Section 120 57 4 Florida Statutes each individually a party

collectively as parties enter into this Settlement Agreement the Agreement and agree as

follows

WHEREAS the Applicant filed an initial application for homemaker companion service

registration pursuant to Chapter 408 Part II Chapter 400 Part III Florida Statutes 2008 and

Chapter 59A 8 Florida Administrative Code and

WHEREAS the Agency has jurisdiction by virtue of being the registration and regulatory

authority over the registration sought by the Applicant and

WHEREAS the Agency served the Applicant a Notice of Intent to Deny the registration

dated October 13 2008 along with an Election of Rights form and

WHEREAS the Applicant requested an formal proceeding by selecting Option 3 on the

Election of Rights form and filing a petition for formal hearing and

EXHIBIT

Page 1 of 4 2

WHEREAS the Parties have agreed that a fair efficient and cost effective resolution of

this dispute would avoid the expenditure of substantial sums to litigate the dispute and

WHEREAS the Parties stipulate to the adequacy of considerations exchanged and

WHEREAS the Parties have negotiated in good faith and agreed that the best interest of

all the Parties will be served by a settlement of this proceeding

NOW THEREFORE in consideration of the mutual promises and recitals herein the

Parties intending to be legally bound agree as follows

1 All recitals are true and correct and are expressly incorporated herein

2 All Parties agree that the whereas clauses incorporated herein are binding

findings of the Parties

3 Upon full execution of the Agreement the Applicant agrees to waive any and all

proceedings and appeals to which it may be entitled including but not limited to an informal

proceeding under Subsection 120 57 2 Florida Statutes a formal proceeding under Subsection

120 57 1 Florida Statutes appeals under Section 120 68 Florida Statutes and declaratory and

r all writs of relief in any court or quasi court DOAH of competent jurisdiction and further agrees

to waive compliance with the form of the Final Order findings of fact and conclusions of law to

which it may be entitled Provided however that no agreement herein shall be deemed a waiver

by either party of its right to the judicial enforcement of this Agreement

4 Upon full execution of this Agreement the Parties agree that the Applicant s initial

application will be withdrawn from further review without prejudice to the Applicant filing a new

initial application for registration in the future The Applicant recognizes that it will have to fully

satisfy the requirements of law in place at the time of any such future application if applicable

The Applicant recognizes that the Agency reserves the right to deny any such future application if

Page 2 of 4

such application is required based upon the grounds set forth in the Notice of Intent

5 Venue for any action brought to interpret challenge or enforce the terms of this

Agreement or its adopting Final Order shall lie solely within the State Circuit Court in and for

Leon County Florida

6 Upon full execution of this Agreement the Agency shall enter a Final Order

adopting and incorporating the terms of this Agreement and closing the above styled case s

7 Each party shall bear its own costs and attorney s fees

8 This Agreement shall become effective on the date upon which it is fully executed

by all the Parties

9 The Applicant for itself and its related or resulting organizations successors or

transferees attorneys heirs and executors or administrators does hereby discharge the Agency

and its agents representatives and attorneys of all claims demands actions causes of action

suits damages losses and expenses of any and every nature whatsoever arising out of or in any

way related to this matter and the s Agency actions including but not limited to any claims that

were or may be asserted in any federal or state court or administrative forum including any

claims arising out of this Agreement by or on behalf of the Applicant or its related or resulting

organizations

10 This Agreement is binding upon all Parties herein and those identified in the

aforementioned paragraph of this Agreement

11 The undersigned have read and understand this Agreement and have authority to

bind their respective principals The Applicant understands that Agency counsel represents only

the Agency and that Agency counsel has not provided any legal advice to the Applicant or

otherwise influenced it in its decision to enter into this Agreement

Page 3 of 4

MAR 12 2009 11 09 AM NEVER ALONE 775 269 6424 P 02

Mar 12 2009 9 29AM Goldsmith Grout Lewis No 5538 P 5

12 This Agreement contains the entire understandings and agreements of the Parties

This Agraeotent auporsedes any prior oral or written agreements that may have existed between

the Parties Taus Agreement may not be amended except in writing Any attempted assignment

of this Agreement shall be void

13 All Parties agree that a facsimile signature suffices for an original aignature

The fQllowing representatives hereby aclmowledge that they we duly authorized to enter

into this Agreement

Elizabc4 Dudek Deputy Seoretary Vera Clark

Agency flor Health Care Administration Never Alone Home Care Inc

2727 M an Drive Bldg 1 1074 Wynn Street

Tallahassee Florida 32308 Sanford Florida 32773

DATED DATED J r cq 7

01

Justin M Senior General Counsel eKkion L Goldsmith Esquire

Office of the General Co 1 Jonathan S Grout Esquire

Agency for Health Care i Goldsmith and Grout P A

2727 Mahan Drive M P 2160 Para Avenue North

Tallahassee Florida 23 Winter Park Florida 32789

DATED DATED

Thomas M Hoolcr Senior y

Office of the General Counsel

Agency for Health Care Administration

529 Mirror Lake Drive North Suite 330

St Petersburg Fl ri 33701

DATED

Pap4of4