10-009378 Agency For Health Care Administration vs. Absolute Home Care, Inc., D/B/A Absolute Home Care, Inc. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, October 26, 2010.

ORDERED:

1. An administrative fine in the amount of $ 3, 00 750. is imposed.

2. The administrative fine shall be, and has been, PAID.

3. The above- styled case shall be, and is hereby, closed.

DONE and ORDERED this day of 2011,

in Tallahassee, Leon County, Florida.

Elizab6th D dek ecretary

Agency for Health 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:

Scott D. Knapp, Esq. Alba M. Rodriguez, Esq.

Attorney for Respondent Assistant General Counsel

Broad and Cassel Agency for Health Care

One Financial Plaza Administration

suite 2700 8333 N. W. 53rd Street - Suite 300

Ft. Lauderdale, Florida 33394 Miami, Florida 33166

U. S. Mail) Interoffice Mail)

Finance & Accounting Stuart M. Lerner

Agency for Health Care Administrative law Judge

Administration Division of Administrative Hearing

2727 Mahan Drive, MS # 14 1230 Apalachee Parkway

Tallahassee, Florida 32308 Tallahassee, Florida 32399

Interoffice Mail) U. S. Mail)

Jan Mills Anne Menard

Agency for Health Care Unit Manager

Administration Home Care Unit Program

2727 Mahan Drive, Bldg # 3, MS # 3 Agency for Health Care

Tallahassee, Florida 32308 Administration

Interoffice Mail) 2727 Mahan Drive

Tallahassee, Florida 32308

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 the _ 4~~ day of 2010.

Richard J. oop

Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Building # 3

Tallahassee, Florida 32308

850) 412- 3630

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH

CARE ADMINISTRATION,

Petitioner, AHCA No.: 2010005636

Return Receipt Requested:

V. 7002 241. 0 0001 4236 2954

ABSOLUTE HOME CARE, INC. d/ a b/

ABSOLUTE HOME CARE, INC.,

Respondent.

ADMINISTRATIVE COMPLAINT

COMES NOW the State of Florida, Agency for Health Care

Administration AHCA"), by and through the undersigned counsel,

and files this administrative complaint against Absolute Home

Care, Inc. d/ a b/ Absolute Home Care, Inc. hereinafter " Absolute

Home Care, Inc."), pursuant to Chapter 400, Part III, and

Section 120. 60, Florida. Statutes 2009), and herein alleges:

NATURE OF THE ACTION

1. This is an action to* impose an administrative fine of

5, 00 000. pursuant to Section 400. 484, Florida Statutes 2009),

for the protection of public health, safety and welfare.

EXHIBIT

JURISDICTION AND VENUE

2. AHCA has jurisdiction pursuant to Chapter 400, Part

III, Florida Statutes 2009).

3. Venue lies pursuant to Rule 28. 207, 106. Florida

Administrative Code.

PARTIES

4. AHCA is the regulatory authority. responsible for

licensure and enforcement of all applicable statutes and rules

governing home health agencies, pursuant to Chapter 400, Part

III, Florida Statutes 2009), and Chapter 59A- 8 Florida

Administrative Code.

5. Absolute Home Care, Inc. operates a home health agency

located at 8000 N. University Drive, Tamarac, Florida 33321.

Absolute Home Care, Inc. is licensed as a home health agency

under license number 21335096. Absolute Home Care, Inc. was at

all times material hereto a licensed facility under the

licensing authority of AHCA and was required to comply with all

applicable rules and statutes.

COUNT I

ABSOLUTE HOME CARE, INC. FAILED TO HAVE A CONTRACT IN PLACE WITH

THE MEDICAL DIRECTOR THAT MEETS REQUIREMENTS.

SECTION 400 . 474 ( 6) ( i) ( 1) ( 2) ( 3) , FLORIDA STATUTES

RULE 59A- 0086( D) 8. 1)( FLORIDA ADMINISTRATIVE CODE

MEDICAL DIRECTOR STANDARDS)

6. AHCA re- alleges and incorporates paragraphs 1)

through 5) as if fully set forth herein.

7. Absolute Home Care, Inc. was cited with one 1)

deficiency as a result of a complaint investigation survey that

was conducted on May 17, 2010.

8. A complaint investigation survey was conducted on May

17, 2010. Based on interview and review of the Home Health

Agency' s HHA) own Medical Director Job Description, the HHA

failed to have a contract in effect with the HHA' s own Medical

Director that meets requirements and failed to ensure invoices

for services that the HHA' s own Medical Director rendered

described the work performed, the dates on which that work was

performed, and the duration of that work were obtained from the.

Medical Director prior to the HHA giving remuneration to the

HHA' s own appointed Medical Director. The findings include the

following.

9. On 05/ 10 17/ at 10: 50 AM, a request to review the HHA' s

Medical Director' s contract was made to the Director of Nursing

DON). Review of the documentation provided by the DON revealed

a two page document titled, Job Description Medical Director."

An another request was made of the DON for the Medical

Director' s contract and not the Job Description and she stated,

during an interview at 10: 50 AM on 05/ 10, 17/ that this is the

only contract they have with the Medical Director.

10. Review of the second page of the Job Description

revealed a handwritten date of 03/ 08 15/ and an illegible

signature above the line, Physician' s Signature" with no

physician' s name printed. Additionally, there is no evidence of

a signature of the representative of the HHA documented.

11. Further review of the Job Description revealed no

evidence of documentation of remuneration to the Medical

Director. During the interview, conducted on 05/ 10 17/ at 10: 50

AM, the DON stated they pay the Medical Director 750. 00 per

month to review charts, attend annual meetings, and assist with

any clinical issues that may arise at the HHA. On 05/ 10 17/ at

11: 05 AM, an interview was conducted with the HHA' s

Administrator who provided invoices for services by the Medical

Director for the months of February, March, and April 2010

revealing a payment of 1500. 00 per month from the HHA to the

Medical Director.

12. The Administrator stated, during - the interview on

05/ 10 17/ at 11: 05 AM, in the presence of the DON, that they pay

v. rrn• wrw... rr~ a. rrlrnr n A

the Medical Director 750. 00 every 2 weeks for the total of

1500. 00 per month. The Administrator additionally stated,

during the interview on 05/ 10 17/ at 11: 05 AM, that the signed

Job Description is the only contract they have with the Medical

Director.

13. Review of the invoices provided by the Administrator,

on 05/ 10 17/ at 11: 05 AM, for the months of February, March, and

April 2010 revealed no evidence of documentation from the

Medical Director of the work performed, dates or duration of the

work performed. Review of the HHA' s Active Client Census Report

reveals the Medical Director listed as the primary physician for

seven of the HHA' s active patients dating back to 12/ 08 01/

through 04/ 10. 03/ Review of the HHA' s Client Discharge Report

reveals the Medical Director listed as the primary physician for

four discharged patients dating back to 01/ 10 03/ through

04/ 10. 19/

14. Based on the foregoing facts, Absolute Home Care, Inc.

violated Section 400. 6)( 1)( 3), 474( i)( 2)( Florida Statutes, which

warrants an assessed fine of $ 5, 00. 000.

CLAIM FOR RELIEF

WHEREFORE, the Agency requests the Court to order the

following relief:

1. Enter a judgment in favor of the Agency for Health

Care Administration against Absolute Home Care, Inc. on Count I.

2. Assess against Absolute Home Care, Inc. an

administrative fine of 5, 00 000. on Count I for the violation

cited above.

3. Assess costs related to the investigation and

prosecution of this matter, if applicable.

4. Grant such other relief as the court deems is just and

proper on Count I.

Respondent is notified that it has a right to request an

administrative hearing pursuant to Sections 120. 569 and 120. 57,

Florida Statutes. Specific options for administrative action are

set out. in the attached Election of Rights. All requests for

hearing shall be made to the Agency for Health Care

Administration and delivered to the Agency Clerk, Agency for

Health Care Administration, 2727 Mahan Drive, MS 3,

Tallahassee, Florida 32308.

RESPONDENT T_~ FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A

REQUEST FOR A HEARING WITHIN TWENTY- ONE 21) DAYS OF RECEIPT OF

THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED

IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY.

IF YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE

REPRESENTED BY AN ATTORNEY IN THIS MATTER

Oat

Alba M. Rodriguez, E

Fla. Bar No.: 0880175

Assistant General Counsel

Agency for Health Care

Administration

8350 N. W. 52 Terrace - # 103

Miami, Florida 33166

Copies furnished to:

Arlene Mayo- Davis

Field Office Manager

Agency for Health Care Administration

5150 Linton Blvd. Suite 500

Delray Beach, Florida 33484

U. S. Mail)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U. S. Certified Mail, Return

Receipt Requested to Bernard R. Shaw, Administrator, Absolute

Home Care, Inc., 8000 N. University Drive, Tamarac, Florida

33321 on this 30th day of August, 2010.

Alba M. Rodriguez,/- q. Es-

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

RE: Absolute Home Care, Inc. d/ a b/ AHCA No.: 2010005636

Absolute Home Care, Inc.

ELECTION OF RIGHTS

This Election of Rights form is attached to a proposed action by the Agency for Health Care

Administration ( AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of

Intent to Impose a Late Fine or Administrative Complaint.

Your Election of Rights must be returned by mail or by fax within 21 days of the day you

receive the attached Notice of Intent to Impose a Late Fee Notice of Intent to Impose a Late Fine

or Administrative Complaint.

If your Election of Rights with your selected option is not received by AHCA within twenty-

one ( 21) days from the date you received this notice of proposed action by AHCA, you will have

given up your right to contest the Agency' s proposed action and a final order will be issued.

Please use this form unless you, your attorney or your representative prefer to reply according to

Chapter 120, Florida Statutes ( 2006) and Rule 28, Florida Administrative Code.)

PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS:

Agency for Health Care Administration

Attention: Agency Clerk

2727 Mahan Drive, Mail Stop # 3

Tallahassee, Florida 32308.

Phone: [phone]- Fax: [phone]-

PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS

OPTION ONE ( 1) I admit to the allegations of facts and law contained in the Notice

of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to

object and to have a hearing. I understand that by giving up my right to a hearing, action. a final order

will be issued that adopts the proposed agency action and imposes the penalty, fine or

OPTION TWO ( 2) I admit to the allegations of facts contained in the Notice of Intent

to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative

Complaint, but I wish to be heard at an informal proceeding ( pursuant to Section 120. 2), 57( that

Florida Statutes) where I may submit testimony and written evidence to the Agency to show

the proposed administrative action is too severe or that the fine should be reduced.

OPTION THREE ( 3) I dispute the allegations of fact contained in the Notice of Intent

to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative

Complaint, and I request a formal hearing ( pursuant to Subsection 120. 1), 57( Florida Statutes)

before an Administrative Law Judge appointed by the Division of Administrative Hearings.

PLEASE NOTE: Choosing OPTION THREE ( 3), by itself, is NOT sufficient to obtain a

formal hearing. You also must file a written petition in order to obtain a formal hearing before

the Division of Administrative Hearings under Section 120. 1), 57( Florida Statutes. It must be

received by the Agency Clerk at the address above within 21 days of your receipt of this proposed

administrative action. The request for formal hearing must conform to the requirements of Rule 28-

106. 2015, Florida Administrative Code, which requires that it contain:

1. Your name, address, and telephone number, and the name, address, and telephone number of

your representative or lawyer, if any.

2. The file number of the proposed action.

3. A statement of when you received notice of the Agency' s proposed action.

4. A statement of all disputed issues of material fact. If there are none, you must state that there

are none.

Mediation under Section 120. 573, Florida Statutes, may be available in this matter if the Agency

agrees.

License type: ALF? nursing home? medical equipment? Other type?)

Licensee Name: License number:

Contact person:

Name Title

Address:

Street and number city Zip Code

Telephone No. Fax No. Email( optional)

I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency

for Health Care Administration on behalf of the licensee referred to above.

Signed: Date:

Print Name: Title:

Late fee/ AC fine/

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Petitioner,

V. AHCA No.: 2010005636

DOAH No.: 10- 9378

ABSOLUTE HOME CARE, INC.

d/ a b/ ABSOLUTE HOME CARE,

INC.,

Respondent.

SETTLEMENT AGREEMENT

Petitioner, State of Florida, Agency for Health Care

Administration hereinafter the Agency"), through its undersigned

representatives, and Respondent, Absolute Home Care, Inc. d/ a b/

Absolute Home Care, Inc. hereinafter Respondent"), pursuant to

Section 120. 4), 57( Florida Statutes, each individually, a party,"

collectively as parties," hereby enter into this Settlement

Agreement Agreement") and agree as follows:

WHEREAS, Respondent is a home health agency licensed pursuant

to Chapters 400, Part III, and 408 Part II, Florida Statutes,

Section 20. 42, Florida Statutes, and Chapter 59A- 8, Florida

Administrative Code; and

EXHIBIT

4815- 2536. 8498- 2

44782/ 0001

WHEREAS, the Agency has jurisdiction by virtue of being the

regulatory and licensing authority over Respondent, pursuant to

Chapter 400, Part III, Florida Statutes; and

WHEREAS, the Agency served Respondent with an administrative

complaint on or about September 2, 2010, notifying the Respondent

of its intent to impose administrative fines in the amount of

5, 00; 000. and

WHEREAS, Respondent requested a formal administrative

proceeding by selecting Option Three 3) on the Election of Rights

form; and

WHEREAS, the parties have negotiated and agreed that the best

interest of all the parties will be served by a settlement of this

proceeding; and

NOW THEREFORE, in consideration of the mutual promises and

recitals herein, the parties intending to be legally bound, agree

as follows:

1. All recitals herein are true and correct and are

expressly incorporated herein.

2. Both parties agree that the whereas" clauses

incorporated herein are binding findings of the parties.

3. Upon full execution of this Agreement, Respondent agrees

to waive any and all appeals and proceedings to which it may be

entitled including, but not limited to, an informal proceeding

under Subsection 120. 2), 57( Florida Statutes, a formal proceeding

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n rlnnlr rr~ nllnllrn~~ r

under Subsection 120. 1), 57( Florida Statutes, appeals under

Section 120. 68, Florida Statutes; and declaratory and all writs of

relief in any court or quasi- court of competent jurisdiction; and

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 judicial

enforcement of this Agreement.

4. Upon full execution of this Agreement, Respondent agrees

to pay 3, 00 750. in administrative fines to the Agency within

thirty 30) days of the entry of the Final Order.

5. Venue for any action brought to enforce the terms of

this Agreement or the Final Order entered pursuant hereto shall

lie in Circuit Court in Leon County, Florida.

6. By executing this Agreement, Respondent neither admits

nor denies, and the Agency asserts the validity of the allegations

raised in the administrative complaint referenced herein.

7. No agreement made herein shall preclude the Agency from

using the deficiencies from the surveys identified in the

administrative complaint in any decision regarding licensure of

Respondent. The Agency is not precluded from using the subject

events for any purpose within the jurisdiction of the Agency.

Further, Respondent acknowledges and agrees that this Agreement

shall not preclude or estop any other federal, state, or local

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agency or office from pursuing any cause of action or taking any

action, even if based on or arising from, in whole or in part, the

facts raised in the administrative complaint.

8. 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.

9. Each party shall bear its own costs and attorney' s fees.

10. This Agreement shall become effective on the date upon

which it is fully executed by all the parties.

11. Respondent for itself and for its related or resulting

organizations, its successors or transferees, attorneys, heirs,

and executors or administrators, does hereby discharge the State

of Florida, Agency for Health Care Administration, and its agents,

representatives, and attorneys of and from 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 Agency' s 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

Respondent or related facilities.

12. This Agreement is binding upon all parties herein and

those identified in paragraph eleven 11) of this Agreement.

13. In the event that Respondent was a Medicaid provider at

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the subject time of the occurrences alleged in the complaint

herein, this settlement does not prevent the Agency from seeking

Medicaid overpayments related to the subject issues or from

imposing any sanctions pursuant to Rule 59G- 070, 9. Florida

Administrative Code.

14. Respondent agrees that if any funds to be paid under

this agreement to the Agency are not paid within thirty- one 31)

days of entry of the Final Order in this matter, the Agency may

deduct the amounts assessed against Respondent in the Final Order,

or any portion thereof, owed by Respondent to the Agency from any

present or future funds owed to Respondent by the Agency, and that

the Agency shall hold a lien against present and future funds owed

to Respondent by the Agency for said amounts until paid.

15. The undersigned have read and understand this Agreement

and have the authority to bind their respective principals to it.

16. This Agreement contains and incorporates the entire

understandings and agreements of the parties.

17. This Agreement supersedes any prior oral or written

agreements between the parties.

18. This Agreement may not be amended except in writing. Any

attempted assignment of this Agreement shall be void.

19. All parties agree that a facsimile signature suffices

for an original signature.

Page 5 of 6

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The following representatives hereby acknowledge that they are

duly authorized to enter into this Agreement.

Moll c& nstr c t D. K Esq.

Acti V Deputy ecretary Attorney for Respondent

Division of He lth Quality Broad and Cassel

Assurance. One Financial Plaza

Agency for Health Care Suite 2700

Administration Ft. Lauderdale, Florida 33394

2727 Mahan Drive

Tallahassee, Florida 32308

Dated: C Dated:

Just' M. S or, Esq. Alba M. Rodri ez, Esq.

General Counsel Assistant General Counsel

Agency for Health Care Agency for Health Care

Administration Administration

2727 Mahan Drive 8333 N. W. 53rd Street

Tallahassee, Florida 32308 Suite 300

Miami, Florida 33166

Dated: 5A A) Dated: J J a o

Norma Shaw, President

Absolute Home Care, Inc.

1845 Eagle Trace Boulevard

Coral Springs, FL 33071

Respondent

Dated:

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