11-002894MPI Agency For Health Care Administration vs. La Hacienda Gardens, Llc Status: Closed Recommended Order on Wednesday, February 1, 2012.

Summary: Assisted living facility failed to timely complete required resident service plans for eight residents and, consequently, should be fined $1,000 per an applicable rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner, )

) Case No. 11 - 2894MPI

vs. )

)

LA HACIENDA GARDENS, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

December 20, 2011 , by video teleconference at sites in Miami and

Tallahassee, Florida, before Administrative Law Judge (ALJ)

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Rachic A vanni Wilson, Esquire

Office of the General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building 3, Mail Station 3

Tallahassee, Florida 32308

For Respondent: Norman J. Ginsparg, Esquire

Sefardik Associates, LLC

1221 West Dixie Highway

North Miami, Florida 33161

STATEMENT OF THE ISSUE

Whether Respondent, a Medicaid provider, committed the

violations alleged in the agency action letter dated March 14,

2011, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is an assisted living facility and a provider

under the Florida Medicaid Program. Following a routine

inspection, Petitioner determined that Respondent failed to have

an authorized representative timely sign "R esident S ervice

P lans " (RSPs) for eight residents as required by the Medicaid

Assistive Care Services Coverage and Limitations Handbook.

Petitioner proposes to fine Respondent $1,000 .00 for each

violation, for a total of $8,000 .00 .

Respondent thereafter timely requested a formal

admi nistrative hearing before DOAH, admitting the violations,

but challenging the reasonableness of the sanctions. The matter

was referred to DOAH, and this proceeding followed.

On December 7, 2011, Petitioner filed a Motion to

Relinquish Jurisdiction premise d on its assertion that there

remained no disputed issues of material fact. Following hearing

on the motion, the undersigned denied same on December 15, 2011.

At the final hearing, Petitioner presented the testimony of

Marie Josue (an inspector with the M edicaid Program) and Horace

Dozier (a Field Office Manager for the Medicaid Program).

Petitioner offered 16 sequentially - numbered exhibits, each of

which was admitted into evidence without objection. Respondent

presented the testimony of Claudia Pace ( it s administrator).

Respondent offered two lettered exhibits, both of which w ere

admitted into evidence without objection. At the request of

Respondent and without objection from Petitioner, official

recognition was taken of Petitioner's Responses to Respo ndent's

Firs t Set of Requests for Admissions.

A T ranscript of the hearing was filed January 3, 201 2 .

B oth parties timely filed a Proposed Recommended Order, which

have been duly considered by the undersigned in the preparation

of this Recommended Order.

U nless otherwise noted, all statutory references are to

Florida Statutes (2011).

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

has been a provider with the Florida Medicaid Program and has

had a valid Medicaid Provider Agreement with Petitioner.

2. Petitioner is the agency of the State of Florida

charged with the responsibility of administering the Florida

Medicaid Program.

3. At all times relevant to this proceeding, Respondent

was subject to all applicable federal and state l aws,

regulations, rules, and Medicaid Han d books.

4. Respondent is required to comply with the Florida

Medicaid Provider General Handbook (the General Handbook). The

General Handbook requires a provider to have medical

documentation that justifies the nec essity of services provided

to a recipient. The General Handbook advises that sanctions may

be imposed if appropriate documentation is not kept.

5. Respondent is an "Assistive Care Services" provider

under the Florida Medicaid Program and is required to comply

with the "Assistive Care Services Coverage and Limitation

Handbook" (A C S Handbook) . The ACS Handbook requires that each

recipient of Assistive Care Services from the Florida Medicaid

Plan have a RSP , and provides, in relevant part ( a t Petitioner's

E xhibit 7, page 39 ) :

Every [Assistive Care Services] recipient

must have a service plan completed by the

[Assistive Care Services] service provider.

. . . The ALF [is] responsible for ensuring

the service plan is developed and

implemented.

6. The ACS Handbook further requires ( at Petitioner's

E xhibit 7, page 40 ) :

The Resident Service Plan for Assistive Care

Services (AHCA - Med Serv [sic] Form 036) must

be completed within 15 days after the

initial health assessment or annual

assessment, be in writing, and based on

information contained in the health

assessment. . . .

7. The ACS handbook further provides ( at Petitioner's

E xhibit 7, page 40 ) , that both the recipient (or the recipient's

guardian or designated representative) and the ALF administrator

( or the person designated in writing by the administrator) must

sign and date the R S P. The RSP is considered complete as of the

last date signed by either party. The provider (in this case

Respondent) is responsible for timely completing the RSP for

each Medicaid recipient in its facility.

8. Inspector Marie Josue conducted an on - site visit to

Respondent's premises on February 1, 2011. At the time of that

inspection, Respondent reviewed a sample of ten RSPs for ten

residents who received Assistive Care Services from the Florida

Medicaid Program . Two of those ten RSPs had been timely signed

and dated by the resident (or the resident's guardian or

designee) and by Respondent's administrator (or the

administrator's designee). The remaining eight RSPs had been

timely signed and dated by the resident (or the resident' s

guardian or designee), but each had not been signed or dated by

Respondent's facility administrator (or the administrator's

written designee). Each RSP pre - dated February 1, 2011, by more

than 15 days. The respective health assessments that formed the

basis for each RSP occurred between March 23 and December 25,

2010.

9. Respondent subsequently provided Ms. Josue with certain

records that she had requested , including copies of the eight

RSP s at issue in this proceeding . When she reviewed those

records , Ms. Josue discovered that Respondent's administrator

had signed and dated each previously unsigned RSP on February 1,

2011. Those signings by the administrator were untime ly .

10. Ms. Josue forwarded the results of her investigation

to Mr. Dozier with a recommendation that Respondent be

sanctioned for violating the provisions of section

409.913(15)(e), Florida Statutes, by the imposition of a

$1,000 .00 fine for each of the eight violations pursuant to

Florida Administrative Code Rule 59G - 9.070(7)(e).

11. When she made her recommendation, Ms. Josue understood

that the cited rule required a minimum fine of $1,000 .00 per

violation.

12. Mr. Dozier accepted that recommendation and prepared

the agency action letter dated March 14, 2011. Mr. Dozier

consult ed with two of his fellow administrators before

concluding that the fine recommended by Ms. Josue was

appropriate. He testified that he could have charged Respondent

with violating section violating section 409 .913(15)(d), which

could have resulted in an administrative fine in the amount of

$20,000 .00 1 / Mr. Dozier considered an administrative fine in the

amount of $8 ,000.00 to be more appropriate.

13 . Based on services provided to Medicaid patients

pursuant to approved RSPs, Respondent submits claims to the

Florida totaling between $6,450 .00 and $9,200 .00 per month.

Petitioner routinely pays those claims.

14 . Each RSP at issue in this proceeding complied with the

ACS Handbook except for the failure of the facility

administrator (or designee) to timely sign the eight RSPs .

15 . RSP S are the guides to the services that will be

provided by Respondent and reimbursed by the Medicaid Program by

Petitioner. The requirement that the administrator (or

designee) sign each plan is an effort to combat fraud .

16 . There was no evidence that the failure to sign the

eight plans at issue in this proceeding was more than an error.

Specifically, there was no evidence of fraud.

17 . There was no allegation that the lack of the

administrator's signature on the eigh t plans at issue had any

effect on the care provided to the eight Medicaid patients.

18 . Ms. Pace has been Respondent's administrator for over

13 years. Ms. Pace is familiar with RSPs and the rules and

regulations governing the Florida Medicaid Program. Ms. Pace

knew that the RSPs must be completed within 15 days of the

assessment by a physician. Ms. Pace knew that the patient (or

designee) and the administrator (or designee) must sign the RSP

for it to be complete. Ms. Pace acknowledged that the eight

RSPs at issue in this proceeding were not signed by anyone on

behalf of the provider until February 1, 2010.

19 . Ms. Pace had designated a subordinate to sign the

eight PSAs at issue in this proceeding on behalf of the

provider. She had no explanation why those RSP s were not timely

signed by anyone on behalf of the provider.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to sections 120.569 and 120.57(1).

21 . The purpose of the Florida Administrative Code Rule

59G - 9.070(1) is as follows:

PURP OSE: This rule provides notice of

administrative sanctions imposed upon a

provider, entity, or person for each

violation of any Medicaid - related law.

22 . Petitioner seeks to impose sanctions against

Respondent for violating s ection 409.913(15)(e) , whic h is as

follows:

(e) The provider is not in compliance with

provisions of Medicaid provider publications

that have been adopted by reference as rules

in the Florida Administrative Code; with

provisions of state or federal laws, rules,

or regulations; with provisions of the

provider agreement between the agency and

the provider; or with certifications found

on claim forms or on transmittal forms for

electronically submitted claims that are

submitted by the provider or authorized

representative, as such prov isions apply to

the Medicaid program;

23 . Florida Administrative Code Rule 59G - 9 - 070 provides

disciplinary guidelines relevant to this proceeding. Subsection

(7)(e) of that rule specifically references section

409.913(15)(e) and provides, in relevant part, as follows:

(e) For failure to comply with the

provisions of the Medicaid laws: For a

first offense, $1,000 .00 per claim found to

be in violation. . . .

24 . Subs ection 409.913(1 6 ) provides , in relevant part, as

follows:

(16) The agency shall impose any of the

following sanctions or disincentives on a

provider or a person for any of the acts

described in subsection (15):

* * *

(c) Imposition of a fine of up to $5,000

for each violation. Each day that an

ongoing violation continues, such as

refusing to furnish Medicaid - related records

or refusing access to records, is

considered, for the purposes of this

section, to be a separate violation. . . .

* * *

The Secretary of Health Care A dministration

may make a determination that imposition of

a sanction or disincentive is not in the

best interest of the Medicaid program, in

which case a sanction or disincentive shall

not be imposed.

25. Subsection 409.913(1 7 ) provides , in relevant part , as

follows:

(17) In determining the appropriate

administrative sanction to be applied, or

the duration of any suspension or

termination, the agency shall consider:

(a) The seriousness and extent of the

violation or violations.

(b) Any prior history of violations by the

provider relating to the delivery of health

care programs which resulted in either a

criminal conviction or in administrative

sanction or penalty.

(c) Evidence of continued violation within

the providerÓs management control of

Medic aid statutes, rules, regulations, or

policies after written notification to the

provider of improper practice or instance of

violation.

(d) The effect, if any, on the quality of

medical care provided to Medicaid recipients

as a result of the acts of the provider.

(e) Any action by a licensing agency

respecting the provider in any state in

which the provider operates or has operated.

(f) The apparent impact on access by

recipients to Medicaid services if the

provider is suspended or terminated, in the

best judgment of the agency.

The agency shall document the basis for all

sanctioning actions and recommendations.

2 6 . Respondent's primary contention is that the amount of

the fine should be reduced because Mr. Dozier did not consider

the factors set forth in section 409.913(17). Respondent also

contends that the amount of the fines is excessive when compared

to Respo ndent's billings to the Medicaid Program. Those

contention s are rejected because the agency has adopted a rule

that specifies the amount of the sanction for the violations at

issue in this proceeding.

27 . The sanction letter issued by Mr. Dozier relied o n

Florida Administrative Code Rule 59G - 9 - 070(7)(e) , which clearly

provides that for first offense violation s the administrative

fine is to be $1,000 .00 per violation. That rule is the

expression by Petitioner of its interpretation of a statute i t

is charg ed with enforcing. See § 120.52(16) Fla. Stat. As

such, deference should be given the rule until it is repealed,

amended, or determined to be invalid. See Verizon Fla. v.

Jacobs , 810 So. 2d 906, 908 (Fla. 2002); Creative Choice XXV,

LTD. v. Fla. Hous. Fin. Corp. , 991 So. 2d 906, 908 (Fla. 1st DCA

2002); and Colonnade Med. Ctr., Inc. v. Ag. for Health Care

Admin , 847 So. 2d 540, 542 (Fla. 4th DCA 2002).

28. Respondent has not challenged the validity of that

rule pursuant to section 120.56 .

RECOMMENDATIO N

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Agency for Health Care

Administration enter a final order finding La Hacienda Gardens,

LLC, guilty of the eight violations of section 409.913(15)(e)

alle ged in the agency action letter dated March 14, 2011. It is

further recommended that the final order impose administrative

fines in the amount of $1,000.00 per violation for a total of

$8,000.00.

DONE AND ENTERED this 1st day of February , 2012, in

Tallaha ssee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 st day of February , 201 2 .

ENDNOTE

1 / Section 409.913(15)(d) makes it a violation for the provider

to fail "to maintain medical records made at the time of

service, or prior to service, if prior authorizati on is

required, demonstrating the necessity and appropriateness of

the goods or services rendered." Florida Administrative Code

Rule 59G - 9.070(7)(d) imposes a sanction for violating section

409.913(15)(d) of $2,500 .00 per violation if ther e are more than

two patients for which no records are maintained.

COPIES FURNISHED:

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

William H. Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Norman J. Ginsparg

Sefardik Assoc iates, LLC

12221 West Dixie Highway

North Miami, Florida 33161

Rachic Avanni Wilson, Esquire

Office of the General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building 3, Mail Station 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10

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 Ord er in this case.