09-003523 Agency For Health Care Administration vs. West Broward Referral And Nurses Agency, Inc. Status: Closed Recommended Order on Tuesday, January 19, 2010.

Summary: Petitioner failed to demonstrate that Respondent failed to "submit" the first quarterly report by e-mail. Recommend dismissal of notice of intent to impose fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, ) Case No. 09-3523

)

vs. )

)

WEST BROWARD REFERRAL AND )

NURSES AGENCY, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

on September 4, 2009, by video teleconference with connecting

sites in Lauderdale Lakes and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

For Respondent: Lawrence R. Metsch, Esquire

Metsch & Metsch, P.A.

Aventura Corporate Center

20801 Biscayne Boulevard, Suite 307

Aventura, Florida 33180-1423

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should

impose a fine upon Respondent as set forth by the Notice of

Intent to Impose Fine dated March 9, 2009.

PRELIMINARY STATEMENT

By Notice of Intent to Impose Fine dated March 9, 2009, the

Agency for Health Care Administration (AHCA) notified West

Broward Referral and Nurses Agency, Inc. (West Broward) that it

(AHCA) was imposing a fine of $5,000, pursuant to Section

400.474(6)(f), Florida Statutes, against West Broward for failing

to submit the home health agency quarterly report within 15 days

after the quarter ending September 30, 2008. West Broward

disputed the allegations of fact and requested a hearing. This

matter was referred to the Division of Administrative Hearings on

June 29, 2009.

At the hearing, AHCA presented the testimony of four

witnesses and entered no exhibits into evidence. 1 West Broward

presented the testimony of one witness and entered three exhibits

(Respondent’s Exhibits numbered 1 through 3) into evidence. 2

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of one volume, was filed on

September 18, 2009. The parties timely filed their post-hearing

submissions, which have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, West Broward was licensed

as a home health agency, having been issued license number

21289096.

2. At all times material hereto, West Broward was located

at 4534 North University Drive, Lauderhill, Florida 33351.

3. By Notice of Intent to Impose Fine dated March 9, 2009,

AHCA notified West Broward that it (AHCA) was imposing a fine of

$5,000, pursuant to Section 400.474(6)(f), Florida Statutes,

against West Broward for failing to submit the home health agency

quarterly report within 15 days after the quarter ending

September 30, 2008.

4. Section 400.474, Florida Statutes (2008), provides in

pertinent part:

(6) The agency [AHCA] may deny, revoke, or

suspend the license of a home health agency

and shall impose a fine of $ 5,000 against a

home health agency that:

* * *

(f) Fails to submit to the agency, within 15

days after the end of each calendar quarter,

a written report that includes the following

data based on data as it existed on the last

day of the quarter:

1. The number of insulin-dependent diabetic

patients receiving insulin-injection services

from the home health agency;

2. The number of patients receiving both

home health services from the home health

agency and hospice services;

3. The number of patients receiving home

health services from that home health agency;

and

4. The names and license numbers of nurses

whose primary job responsibility is to

provide home health services to patients and

who received remuneration from the home

health agency in excess of $ 25,000 during

the calendar quarter.

5. The first quarterly report, which was for the period

from July 1 to September 30, 2008, was required by AHCA to be e-

mailed to it (AHCA). Even though some first quarterly reports

were sent by fax or next-day delivery, not e-mailed, those

quarterly reports were also accepted by AHCA.

6. The first quarterly report form for West Broward

reflects, among other things, that the period of time of the

quarterly report was “Quarter July 1 to September 30, 2008” and

that it was to be e-mailed to AHCA at

[e-mail] by 5 p.m. on Wednesday, October 15,

2008 to avoid a $5,000 fine. 3 No dispute exists that the e-mail

address is correct.

7. West Broward’s heath care consultant, Laurie Ramos,

testified at hearing. She prepared West Broward’s first

Quarterly Report, which indicates that, on September 30, 2008:

(a) no insulin-dependent diabetic patients were receiving insulin

injection services from West Broward; (b) no patients were

receiving home health services from West Broward and licensed

hospice services; (c) six patients were receiving home health

services from West Broward; and (d) no professional nurses (RNs

or LPNs), whose primary job responsibility was to provided home

health services to patients, received remuneration from West

Broward in excess of $25,000 between July 1, 2008 and

September 30, 2008.

8. Ms. Ramos testified that she e-mailed the first

Quarterly Report to AHCA on October 14, 2008, from her computer.

She further testified that, even though her computer had the

capability, she did not set her computer to receive a message

when the e-mail was read by the recipient, and that, therefore,

she had no return message that the e-mail, containing the

Quarterly Report, was read by AHCA.

9. Ms. Ramos did not send the first Quarterly Report by any

other method of delivery, only e-mail.

10. Ms. Ramos did not contact anyone at AHCA to verify that

the first Quarterly Report was received.

11. Ms. Ramos’ computer crashed approximately nine months

subsequent to the due date of the first Quarterly Report. At her

request, the company, which was repairing her computer and

recovering data, searched Ms. Ramos’ hard drive for an e-mail

message from her regarding the first Quarterly Report. The

company provided Ms. Ramos with a document showing an e-mail

message, dated October 14, 2008, at 11:34 a.m., regarding West

Broward’s Quarterly Report, to the e-mail address designated for

AHCA to receive quarterly reports. The company’s document was

forwarded to AHCA. From the company’s document, AHCA’s

information technology experts were unable to verify that

Ms. Ramos had e-mailed the first Quarterly Report.

12. According to AHCA’s information technology expert, due

to the technological aspect of e-mails, a very small statistical

number of e-mails that are sent are not received.

13. Additionally, AHCA requested Ms. Ramos to forward to it

an electronic version of the e-mail. With an electronic version

of an e-mail, documentation of the date and time of an e-mail

could be ascertained by AHCA’s information technology expert. No

electronic version of the e-mail was provided, and, therefore, no

documentation of the date and time of Ms. Ramos’ e-mail could be

ascertained by AHCA.

14. Ms. Ramos testimony is found to be credible. A finding

of fact is made that she sent the first Quarterly Report to AHCA

on October 14, 2008, by e-mail.

15. AHCA maintains that it never received West Broward’s e-

mailed first Quarterly Report. AHCA has no record of receiving

the e-mailed first Quarterly Report. The evidence demonstrates

that AHCA did not receive the e-mailed first Quarterly Report.

16. AHCA interprets the term “submit,” in Section

400.474(6)(f), Florida Statutes (2008), to mean that the

quarterly report must be “received” by it.

17. AHCA determined that, beyond the date of October 15,

2008, there was no opportunity available to West Broward to

correct or cure the absence of AHCA’s receipt of the first

Quarterly Report. Furthermore, AHCA determined that it had no

choice, pursuant to Section 400.474(6)(f), Florida Statutes

(2008), but to impose a $5,000 fine.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

19. The ultimate burden of proof is on AHCA to establish by

clear and convincing evidence that West Broward violated Section

400.474(6)(f), Florida Statutes (2008), as alleged in the Notice

of Intent to Impose Fine dated March 9, 2009. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); § 120.57(1)(j), Fla. Stat.

20. “If the meaning of the statute is clear then [this

Administrative Law Judge’s] task goes no further than applying

the plain language of the statute. However, when a statutory

term is subject to varying interpretations and that statute has

been interpreted by the executive agency charged with enforcing

the statute [this Administrative Law Judge] follows a deferential

principle of statutory construction: An agency’s interpretation

of the statute that it is charged with enforcing is entitled to

great deference. See BellSouth Telecommunications, Inc. v.

Johnson , 708 So. 2d 594, 596 (Fla. 1998). [This Administrative

Law Judge] will not depart from the contemporaneous construction

of a statute by a state agency charged with its enforcement

unless the construction is ‘clearly unauthorized or erroneous.’

(citation omitted).” GTC, Inc. v. Edgar , 967 So. 2d 781, 785

(Fla. 2007).

21. AHCA is the agency charged with enforcing Section

Statutes, was amended in 2008 to add Subsection (6)(b), effective

July 1, 2008, and, therefore, AHCA’s interpretation of Section

400.474(6)(b), Florida Statutes (2008), is a matter of first

impression. See GTC, Inc. at 785.

22. AHCA and West Broward disagree as to the meaning of the

the term “submit” is not defined by the statutory provision and

is subject to differing interpretations, the statute is ambiguous

and, thus, statutory interpretation is appropriate. See GTC,

Inc. at 787.

23. Black’s Law Dictionary , Revised Fourth Edition (1968)

defines “submit” as, “To commit to the discretion of

another . . . to present for determination . . . .” The American

Heritage College Dictionary , Fourth Edition (2004) defines

judgment of another. . . .” In order for the something to be

committed to someone by another for determination, consideration

or judgment, the something must be sent. Further, in order for a

determination, consideration or judgment to be made of the

something sent, the something must be received.

24. AHCA cites to a case that was before the Division of

Administrative Hearings in support of its position that “submit”

means “sent and received”: Weaver vs. Department of Management

Services, Division of State Employees’ Insurance , DOAH Case No.

93-5571 (Recommended Order, February 16, 1994). AHCA’s reliance

upon Weaver , supra , is not persuasive. In Weaver , the

administrative law judge interpreted in pari materia two

provisions, on two different sides, of the document in question

to determine the meaning of “submission” of the document to the

agency: one provision, on one side, of the document indicated

provision, on the other side, of the document indicated that the

same document was required to be “received” by the same agency

and indicated the same time-period for the document to be

“received” by the same agency. The administrative law judge

determined that, based upon the two provisions interpreted in

pari materia , “submit” meant “sent and received.” In the instant

case, no provisions are provided to be interpreted in pari

materia .

25. In Section 400.474(6)(f), Florida Statutes (2008), the

Florida Legislature provided permissive and mandatory penalties

for AHCA, the agency charged with enforcing the statutory

provision. The permissive penalty relates to a home health

agency’s license and provides AHCA the discretion to deny,

revoke, or suspend a home health agency’s license. However, the

mandatory penalty involves a monetary fine and does not provide

AHCA with discretion, but mandates AHCA to impose a $5,000 fine

against a home health agency. The mandating of a $5,000 fine,

without any discretion whatsoever, is a severe penalty.

26. Furthermore, the Florida Legislature did not mandate

the mode of delivery for the quarterly report. AHCA dictated the

mode of delivery, i.e., e-mail, for the first quarterly report in

its communications to the home health agencies. However, even

though AHCA did not communicate to the home health agencies that

it would accept other modes of delivery, it did accept the first

quarterly report through other modes of delivery, e.g., fax and

next-day delivery.

27. This Administrative Law Judge is persuaded that a

received,” is warranted and that AHCA’s interpretation is not a

reasonable construction and is clearly erroneous. See GTC, Inc.

at 785. AHCA chose the mode of delivery, i.e., e-mail, for the

first quarterly report for the period July 1 through

September 30, 2008 from home health agencies, the mode of

delivery was not mandated by the Legislature; AHCA was aware that

a very small statistical percentage of e-mails may not be

received by it; and, contrary to the mode of delivery that AHCA

had chosen, AHCA accepted the first quarterly report from home

heath agencies by other modes of delivery, e.g., fax and next-day

delivery, without communicating to the home health agencies that

the other modes of delivery were acceptable. Furthermore, a

mandated, severe penalty is imposed for the failure to submit a

quarterly report.

28. Hence, under the circumstances presented in the instant

clearly erroneous. Id. The reasonable interpretation of

“submit” is “sent.”

29. Having determined the interpretation of the term

“submit,” this Administrative Law Judge must now determine

whether a fine of $5,000 should be imposed against West Broward.

This Administrative Law Judge is further persuaded that, to avoid

the imposition of a $5,000 fine, a home health agency must

demonstrate that its quarterly report was sent and that it was

sent timely. In the instant case, West Broward demonstrated that

its first Quarterly Report was sent to AHCA and was sent timely.

30. Hence, the evidence demonstrates that West Broward

timely submitted the first quarterly report for the period July 1

through September 30, 2008.

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 Notice of Intent to Impose

Fine against West Broward Referral and Nurses Agency, Inc.

DONE AND ENTERED this 19th day of January, 2010, in

Tallahassee, Leon County, 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January, 2010.

ENDNOTES

1/ The parties agreed that Petitioner’s pre-marked exhibits would

be used as Respondent’s exhibits. Specifically, Petitioner’s

pre-marked Exhibit No. 4 would be Respondent’s Exhibit No. 1;

Petitioner’s pre-marked Exhibit No. 3 would be Respondent’s

Exhibit No. 2; and Petitioner’s pre-marked Exhibit No. 2 would be

Respondent’s Exhibit No. 3.

2/ Id.

3/ West Broward’s Quarterly Report was admitted into evidence.

COPIES FURNISHED:

Nelson E. Rodney, Esquire

Agency for Health Care Administration

Spokane Building, Suite 103

8350 Northwest 52nd Terrace

Miami, Florida 33166

Lawrence R. Metsch, Esquire

Metsch & Metsch, P.A.

Aventura Corporate Center

20801 Biscayne Boulevard, Suite 307

Aventura, Florida 33180-1423

Richard J. Shoop, Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Thomas W. Arnold, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

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.