11-004457 Agency For Health Care Administration vs. Faith Home Health, Inc. Status: Closed Recommended Order on Thursday, April 19, 2012.

Summary: Petitioner established by clear and convincing evidence that Respondent failed to provide home health services in accordance with patients' plan of care. Recommend that administrative fine and cost be imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) )

ADMINISTRATION, )

)

Petitioner, )

vs. ) Case No. 11-4457

)

FAITH HOME HEALTH, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, on February 10, 2012, a formal hearing

in this cause was held in Tampa, Florida, before the Division of

Administrative Hearings (Division) by its designated

Administrative Law Judge Lynne A. Quimby-Pennock.

APPEARANCES

For Petitioner: James H. Harris, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent: Thomas W. Caufman, Esquire

Tammy Stanton, Esquire

Quintairos, Prieto, Wood and Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

STATEMENT OF THE ISSUES

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint, and, if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

Respondent, Faith Home Health, Inc. (Faith Home), operates a

home health agency located at 3202 North Howard Avenue, Tampa,

Florida. On February 3, 2011, Petitioner, Agency for Health Care

Administration (AHCA), conducted a recertification survey of

Faith Home. On August 1, 2011, AHCA filed a two-count

Administrative Complaint against Faith Home based on its survey.

AHCA is seeking $46,000.00 in fines and the investigative cost

associated with the survey.

On August 23, 2011, Faith Home filed a Petition for Formal

Administrative Hearing (Petition). On September 1, 2011, AHCA

referred the Petition to the Division for a disputed-fact hearing

and the issuance of a recommended order.

A Notice of Hearing by Video Teleconference was issued

setting the case for formal hearing on November 8 and 9, 2011.

On October 20, 2011, Faith Home filed an uncontested Motion for

Continuance. On October 21, 2011, an Order granting the

continuance was issued, and the parties were directed to provide

three mutually–agreeable dates for a hearing in January 2012.

The parties complied with the Order.

On October 31, 2011, an Order was entered setting the case

for hearing on January 30 and 31, 2012. On January 13, 2012,

AHCA filed an unopposed Motion to Amend Administrative Complaint,

which was granted, and all future references will be to the

Amended Administrative Complaint (AAC), filed with the Division

on January 23, 2012.

On January 30, 2012, Faith Home made an ore tenus motion for

continuance based on the unavailability of its chief witness due

to an unexpected illness. The ore tenus motion was granted.

Although this case was originally scheduled for two hearing days,

prior to the last Notice of Hearing being issued, the parties

notified the Division that only one hearing day was required.

The hearing was re-scheduled to February 10, 2012, and heard as

scheduled.

AHCA presented the deposition testimony of Jeanette Peabody

and the testimony of Joni Miller and Bronson Sievers. AHCA's

Exhibits 1 through 4 and 6 through 18 were admitted into

evidence. Faith Home presented the testimony of Beverly Eubanks

and Celina Okpaleke. Faith Home's Exhibits 1 through 3, 5

through 9, 11, and 13 through 15 were admitted into evidence. 1/

A two-volume Transcript of the proceeding was filed with the

Division on February 21, 2012. The parties timely filed proposed

recommended orders, and each has been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Faith Home operated as a

home health agency with its principal place of business located

at 3202 North Howard Avenue, Tampa, Florida. Faith Home's

license number is 299991078.

2. Joni Miller is a registered nurse (RN) surveyor for

AHCA. Ms. Miller holds an associate of arts degree in nursing

and practiced as an RN for almost 30 years. She practiced as an

RN in the areas of coronary care, research, home health,

cardiology, and sports medicine. Ms. Miller has completed the

requisite classes in surveyor training and is a certified home

health surveyor. Ms. Miller was received without objection as an

expert in nursing.

3. Jeanette Peabody is an RN who worked for AHCA as an

RN specialist. Ms. Peabody obtained an associate of arts degree

in applied science with a major in nursing. In 1995, Ms. Peabody

was licensed as an RN in Pennsylvania. Thereafter, she worked

for various health-related entities, including (but not limited

to) two home health agencies and the Pennsylvania Department of

Health. She became licensed as an RN in Florida in 2004.

Ms. Peabody became a certified surveyor after receiving the

appropriate training. While working for AHCA, Ms. Peabody

conducted surveys of health care facilities and agencies for

compliance with the applicable rules and regulations.

Ms. Peabody was received as an expert in nursing.

4. Beverly Eubanks is the chief operating officer for Faith

Home, a position she has held for 15 years. Ms. Eubanks is an

RN, who received her associate's degree in nursing from Manatee

Community College in 1990. Faith Home primarily serves the

underprivileged, low-income families, and public housing

residents.

5. Celina Okpaleke is the sole owner of Faith Home and has

been its owner since 1997. Ms. Okpaleke is a licensed physician

assistant, having been licensed in 1996. Her duties at Faith

Home are to oversee its day-to-day management. Prior to the

February 2011 survey, Ms. Okpaleke had not been going to the

Faith Home office every day. 2/

6. The methodology for any survey includes the following:

the team arrives at the location; the team is introduced to the

survey entity's staff members; the team explains to the entity's

staff members the nature of the survey, including a list of items

required for the team to conduct the survey; and there is a

request for work space. Upon receipt of the required items, the

team reviews the material, conducts interviews, conducts visits

with patients at their various locations, interviews staff, and

reviews the accumulated information. In the event the surveyors

have any questions, the surveyors will make requests to the

appropriate entity staff, and additional materials may be

provided to the surveyors. The survey findings are reviewed with

the staff, and, at the end of the survey, the team conducts an

exit conference with the appropriate staff. Any entity staff is

welcomed to be present. In the event any documentation is

missing, the entity is allowed to provide that material after the

surveyors have left the facility. In those instances when an

agency is out of compliance, AHCA will make a return visit to

ensure the agency has corrected the deficiencies. There was

credible testimony that this survey procedure was the same

procedure used during the Faith Home survey and follow-up survey.

7. It is recognized as a good nursing practice to document

in a patient's record or chart the care, treatment or other

services being provided to a patient. This includes all medical

and medically-related support services.

8. Faith Home has numerous policies that govern how it is

to be run. A few of the pertinent policies are set forth below.

"Patient Visits," last revised on December 1, 2010, provides:

All patients will be seen according to

physician's orders and in compliance with the

plan of treatment. At each visit, a progress

or visit note will be completed. On the

visit note (progress not [sic]/visit note)

the patient's progress toward meeting

established goals shall be documented.

In addition, the patient's response to

treatment will be documented as well as any

other pertinent assessment information.

All patient visits will be performed

according to a pre-established schedule. If

there is [sic] any changes in visit schedule,

time or staff, the patient will be consulted

prior to the change.

"Initial Assessment Process for Medicare [P]atients," last

revised on December 1, 2010, reflects in pertinent part:

Upon admission, each patient will receive

initial assessment in order to determine

patient's needs. To achieve this goal, the

following important processes must be

performed:

* * *

More in depth functional assessments

performed by a qualified PT [physical

therapist] or OT [occupational therapist] are

available to those patients who need one.

These assessments are documented on the

appropriate PT/OT Evaluation form.

* * *

Initial assessments will be performed within

48 hours of referral or within 48 hours of a

patient's return home from an impatient [sic]

stay, or on the physician-ordered start of

care [SOC] date.

MSW will make assessments within one (1) week

of referral based on the patient's priority

level as determined by RN and/or MD, PT, ST,

and OT will make evaluations within one (1)

week of referral based on the patient's

priority level as determined by the RN and/or

MD.

Administration/start of care assessment

data must be completed within five (5)

calendar days of the SOC date. The

agency then has seven (7) calendar days

from the SOC date to encode the data,

check for errors and lock the data for

transmission. The data will than [sic]

be transmitted on a monthly basis; data

minimum no later than the month[.]

"Oasis Data Set," last revised on December 1, 2010, reflects in

pertinent part:

The agency has implemented the OASIS data set

and is actively collecting data as of March

15, 1999. Current assessment data and notes

utilized by the agency have been incorporated

into the OASIS core data.

OASIS requirements apply to all patients . .

The only exclusions are as follows:

1. Patients under the age of 18

2. Patients receiving maternity services

3 . Patients receiving ONLY no skilled

services such as personal care, homemaker,

chore, or companion services.

OASIS data are collected at the following

points:

1. Start of Care

* * *

2. Resumption of Care following

impatient [sic] stay

* * *

3. Follow-up/Recertification

* * *

4. Follow-up/SCIC

* * *

5. Discharges and Death

* * *

Do not administer OASIS data set as an

interview. Questions are meant to be part of

the professional opinion of the staff member

performing the assessment, based upon the

evaluation of the patient.

Be sure to incorporate agency assessment

material (Discharge Summary, etc.) with the

OASIS data set. The OASIS data set does not

constitute a complete assessment.

"Policies & Procedures for Accectance [sic] of Patients/Cases"

last revised on December 1, 2010, reflects in pertinent part:

B) Qualifying Criteria for Accepting a

Patient

* * *

7) Client must have a telephone or use of

phone in close distance for emergency

situation. Running water and electricity are

also important factors for providing adequate

care in the home.

* * *

D) Criteria for Acceptance of Skilled

Nursing Clients

* * *

5) A copy of MD orders may accompany Skilled

Nursing Admission. If nurse [is] able to

receive a faxed copy of orders, Faith Home

Health will fax them. If not, a copy of the

order will be sent to patient's residence

with supplies.

"Policies & Procedures for Admissions," last revised on

December 1, 2010, reflects in pertinent part:

A) Admission & Assessment Policies &

Procedures

* * *

7) All documentation will be kept in the

patient's Faith Home Health folder.

"Caregiver Job Descriptions," last revised on December 1, 2010,

reflects in pertinent part:

A) Registered Nurses

* * *

Activities may include:

* * *

11. Recording pertinent information.

* * *

B) LICENSED PRACTICAL NURSE

* * *

Activities

may include:

* * *

7. Recording all pertinent observations and

treatments[.]

* * *

C) Certified Nurse Aide

* * *

Activities may include

:

* * *

22. Keeping a record of observations and

care given[.]

D) Home Health Aide

* * *

Activities may include :

* * *

10. Maintaining a proper record of

activities.

The February 2011 Survey

9. In early February 2011, Ms. Peabody was the lead

surveyor in the annual Florida licensure recertification survey

conducted at Faith Home (FH survey). Ms. Miller was also a

member of the FH survey team. This FH survey team conducted

reviews, interviews, home visits, and conferences over the course

of three days.

10. During the February 2011 FH survey, Ms. Peabody

requested and was provided Faith Home's records for patient 5.

The home health certification and plan of care (HHC/POC) for

patient 5 provided the SOC date as December 14, 2010. The

HHC/POC ordered skilled nursing visits to occur one to two times

a week for nine weeks. According to the HHC/POC, at each visit,

the skilled nurse was to perform various treatments with respect

to patient 5's multiple medical issues, including assessing vital

signs, cleaning a toe wound and applying a dressing, instructing

the patient on diet and nutrition, and reporting any changes to

the "MD [medical doctor] & supervisor ASAP [as soon as

possible]."

11. Patient 5 did not receive skilled nursing visits during

the weeks of December 19 or 26, 2010. During the following

skilled nursing visits, patient 5 did not receive wound care

treatment: December 13, 2010, and January 6, 13, 18, and 21,

2011.

12. Additionally the HHC/POC called for a PT to evaluate

and treat patient 5. There were orders that the PT was to

administer therapeutic home care exercises in order to increase

patient 5's functional abilities. Patient 5 did not have the

physical therapy evaluation or treatment as directed. There was

no PT evaluation or treatment documentation for patient 5, and

there was no documentation that the MD or supervisor was notified

that the treatments did not take place.

13. Following the review of the documentation provided,

Ms. Peabody afforded Faith Home the opportunity to provide any

additional documentation they had with respect to the care and

treatment provided to patient 5. No additional documentation was

forthcoming to the surveyors.

14. Ms. Eubanks contended that patient 5 was seen by a

nurse during the week of December 18, 2010. She testified that

there was no wound care treatment necessary for patient 5 because

the wound had healed. Ms. Eubanks "believe[d]" the wound had

resolved by December 9, 2010, and that no PT was ordered because

patient 5 was still "refusing it." Ms. Eubanks also testified

that no wound care treatment was required because it was not on

the OASIS data collection sheet. Ms. Eubanks's testimony is not

credible as the HHC/POC is clear as to the physician's order

regarding patient 5's toe wound care and the PT evaluation and

treatment. The OASIS data form may be the methodology "to track

your [Faith Home] benchmarks and your progression to see how you

rank" among other home health agencies, but it does not take the

place of a HHC/POC executed by a physician. Further, although a

patient always has the right to decline a health care service,

that response does not preclude the physician from ordering the

particular care to be provided.

15. Based on the violations observed and documented during

the February 2011 survey, Ms. Miller went back to Faith Home in

June 2011 to follow up on the areas of concern. Ms. Miller

reviewed five patients at the June 2011 revisit, one of whom was

part of the February 2011 survey, patient 5. 3/

16. Patient 5J's HHC/POC, signed on April 16, 2011, ordered

skilled nursing visits to occur one to two times a week for nine

weeks. According to the HHC/POC, at each visit, the skilled

nurse was to perform various treatments with respect to

patient 5J's multiple medical issues. The HHC/POC included an

assessment of patient 5J's vital signs including the endocrine,

cardiac, and neuro, with instructions regarding the disease

process and management; fall prevention; diet and nutrition; and

skin, nail, and foot care. It also included an order to report

"any changes or concerns to [the] MD & supervisor ASAP."

17. This April 16, 2011, HHC/POC also ordered a home health

aide (HHA) to provide services two to three times a week for nine

weeks for patient 5J. The HHA was to assist patient 5J with the

activities of daily living (ADL).

18. During the follow-up survey, Ms. Miller was unable to

find documentation of any nurse's treatment for patient 5J during

three of the nine-week certification period. The skilled nursing

visit notes on April 21 and May 5, 2011, failed to reflect any

assessment of patient 5J's vital signs, including the

cardiovascular system. The lines drawn through certain boxes do

not indicate review or assessment of patient 5J.

19. Further, there was no evidence of any HHA visits during

the seventh week through the ninth week of the certification

period for patient 5J. This totaled six missed HHA visits for

patient 5J.

20. With respect to patient 7, the HHC/POC, with a SOC

date of December 18, 2010, ordered a PT to evaluate and treat

patient 7. The PT was to administer a therapeutic home care

exercise program to patient 7 to increase strengthening. 4/ The

HHC/POC also ordered the skilled nurse to "report any changes and

or concerns to the MD & RN ASAP."

21. Patient 7 did not receive the physical therapy

evaluation until December 29, 2010, 11 days after it was ordered.

The PT's care plan for patient 7 involved physical therapy two

times a week for three weeks. At the time of the FH survey,

there was no documentation that the physician was notified of the

delay or the reason for the delay in performing the PT evaluation

on patient 7.

22. Ms. Eubanks provided a "Communication/Status Report"

(C/SR) pertaining to patient 7, dated January 3, 2011. Although

this C/SR purports to put Faith Home services (including the PT)

on hold until the patient returns from being with the "daughter

and family for a couple of weeks," it is at odds with the

credible evidence presented by AHCA. The physical therapy

documentation reflects that patient 7 was provided PT services

twice during the week of January 9, 2011, just one week after

Faith Home was "notified" the patient would be gone "for a couple

of weeks." Additional physical therapy documentation reflects

that service was also provided twice during the week of

January 17, 2011. 5/

23. Ms. Eubanks's contention that this C/SR was faxed to

patient 7's physician to notify him/her of the change in plans is

not credible. There was no testimony or documentation of the

physician's actual fax number or the actual number to which this

C/SR was purportedly faxed, nor did the person who actually faxed

the C/SR testify.

24. Patient 11's HHC/POC, signed December 15, 2010, ordered

skilled nursing care two to three times a week for nine weeks.

At the end of the HHC/POC orders, there is an order to "Report

any changes and or concerns to MD & supervisor ASAP." Although

it is noted on the HHC/POC that the "Certification period [was]

extended due to [a] procedure on [the] left second toe," there

was no actual doctor's order to provide wound care to

patient 11's left second toe. There is, however, a "60 Day

Summary" notation which states:

Wound to [the] right great toe healed without

complication. Skilled nurse currently caring

for left second toe. No S&S of infection

noted. Blood pressure and blood sugar has

remained stable through out [sic].

This summary statement is not an order for care to patient 11's

left second toe.

25. When a nurse observes a new wound in need of care, the

nurse should immediately document the toe wound and contact the

physician. The burden then falls to the physician to decide

what, if any, order is appropriate for the wound care. This

recording/reporting process was not followed, and there was no

documentation of patient 11's wound to the left second toe.

However, the skilled nursing visits record that wound care was

provided to patient 11's left second toe.

26. Ms. Eubanks testified that patient 11's podiatrist,

Dr. Rappaport, wrote an order to discontinue wound care to the

right great toe because it had healed. Other than the 60-day

summary note found in the HHC/POC signed December 15, 2010, there

was no order signed by Dr. Rappaport that discontinued care to

the right great toe, and no order for care to patient 11's left

second toe was introduced at hearing. Although Ms. Eubanks

testified that patient 11 had the left second toe nail bed

removed, she never testified that she was present when that nail

bed was removed or that she was the attending skilled nurse who

provided the post nail bed removal care. Her testimony is at

odds with the credible evidence presented by AHCA.

27. Patient 13's HHC/POC, with a SOC date of December 21,

2010, ordered skilled nursing care one to two times a week for

six weeks with specific skilled nursing tasks to be performed.

There was no documentation that a skilled nurse provided care

during the weeks of December 26, 2010, or January 9, 2011.

28. Patient 13's HHC/POC also ordered a physical therapy

evaluation. As part of the HHC/POC, the PT was to administer

therapeutic home care exercises to increase functional strength,

range of motion (ROM), balance and endurance, and transfers and

to report "any changes and or concerns to [the] MD & RN CM [case

manager] ASAP."

29. Patient 13's physical therapy evaluation was not

conducted until January 5, 2011, roughly two weeks after it was

ordered. The physical therapy care plan directed that patient 13

was to be seen two times a week for the first week and three

times a week for the next four weeks. Although there are "missed

visit reports" that document a PT's attempt to see the patient on

six different January 2011 dates, there is no credible evidence

that patient 13's physician was notified of those six missed

visits as soon as possible.

30. Ms. Eubanks points to a January 24, 2011, C/S Report

(January note) for the reason the PT missed the visits with

patient 13. This January note reflects that patient 13 had gone

to Georgia to be with her daughter and would return the end of

January 2011 or the first Tuesday in February. This January note

prompts more questions than answers because it does not reflect

exactly when patient 13 went to Georgia and only asks that the

"nursing services" not the physical therapy services be held

until patient 13's return.

31. The missed visit reports indicate that a PT went to the

residence and knocked on patient 13's door, but no one came to

the door. Although the missed visit reports provide space for

the patient's name (appropriately redacted), the date (of

service), the discipline (in this case "PT" was checked), the

reason (for the missed service; in this case phrases to the

effect: drove by, no one answered door, etc.), and who completed

the missed visit report (the PT's signature is illegible), none

of these missed visit reports have a checkmark (or any

indication) next to the "Y," which signifies that the physician

was notified. Ms. Eubanks's posturing that these missed visit

reports were left in an inbox at a public housing building

facility so that the physician was notified is not credible.

32. Ms. Eubanks also testified that patient 13 did not have

a telephone, and "so there was no other way to contact [her] but

actual face to face." This statement is in direct contradiction

to Faith Home's policy that a client must have a telephone or

that a phone be close by for communication purposes.

33. Further, there was evidence that two skilled nursing

visits took place: one on January 26, 2011, and the other on

January 29, 2011, just two and five days, respectively, after the

January note stating patient 13 would be gone until the end of

January or the first of February.

34. Patient 2's HHC/POC, signed September 13, 2010, ordered

skilled nursing visits to occur up to seven days a week, and the

nurse was to provide a complete assessment with each shift.

According to the HHC/POC, the skilled nurse was to, among other

things, monitor patient 2's GI status and provide G-tube care

every shift, weigh the child weekly on Mondays when scales became

available, and document it in the mom's notebook. Based on

patient 2's condition, care had to be taken that the patient did

not become dehydrated or lose a lot of weight. There was no

documentation of patient 2's weight being recorded by the

Faith Home skilled nurses during the scheduled Monday visits.

Patient 2's records provided to the surveyors during the

February 2011 FH survey failed to reflect documentation as to any

G-tube care being provided on every shift.

35. Ms. Eubanks testified that patient 2 was weighed weekly

at his school. Based on the phrase in the HHC/POC "when a scale

becomes available," Faith Home took the position it was not

obligated to secure a scale to ensure it weighed the patient per

the HHC/POC. Rather, Faith Home unilaterally decided that,

because the Department of Children and Families (DCF) was having

patient 2 weighed weekly at school, Faith Home was meeting its

obligation. However, this position flies in the face of the

physician's order for patient 2. Patient 2's record does not

reflect where patient 2's weight was being recorded, either at

home or school, nor does it reflect that the physician was being

made aware of patient 2's weight on a regular basis. Faith Home

did not document the lack of a scale, did not inform the

physician that the weight was being monitored by DCF at

patient 2's school and did not ensure that the physician was

aware of patient 2's weekly weight status.

36. Patient 3's HHC/POC, signed November 30, 2011, ordered

an RN to be present 20 hours a day up to seven days per week.

Additionally, the skilled nurse was to assess the patient and

perform other specific care. One specific task was for

patient 3's tracheotomy care to be performed twice a day and as

needed. 7/ Documentation for patient 3 failed to reflect the

tracheotomy care twice a day or as needed between December 20,

2010, and January 22, 2011.

37. Ms. Eubanks testified to patient 3's medical

circumstances. Although Ms. Eubanks understood that AHCA's

surveyors had patient 3's pediatric notes, she only pulled

"random notes" for the "period because they had already copied

everything that they wanted to take." Of Faith Home's documents

that she discussed, Ms. Eubanks only presented two dates (out of

the 34 days alleged in the AAC) that recorded some type of

tracheotomy care for patient 3. Hence, her testimony lacks

credibility in light of the overwhelming evidence AHCA provided.

38. Patient 6's HHC/POC for the certification period of

October 14, 2010, to December 12, 2010, ordered skilled nursing

care three to four times a week for nine weeks and also provided

for specific disciplines and treatments to be performed. There

was evidence that a skilled nurse provided one visit to patient 6

on October 15, 2010; yet, there was no evidence that a skilled

nurse provided the minimum number of visits to patient 6 during

the remainder of the nine-week certification period. It was

noted that two skilled nursing visits were made during the week

of November 14, 2010. However, the HHC/POC ordered a minimum of

three, up to four skilled nursing visits to be made.

39. Patient 6's HHC/POC also ordered HHA services to be

provided two to three times a week for nine weeks. The HHA was

to assist patient 6 with ADLs. The HHA failed to provide

patient 6 the minimum number of visits during weeks one, two, or

three of the certification period.

40. Ms. Eubanks testified that Faith Home could not provide

services to patient 6 after October 14, 2010, as patient 6 was

admitted to a local hospital. Further, Ms. Eubanks testified

that the HHA documentation "has to be incorrect," although she

also testified that the Faith Home documents were "true. There

has been an error." 8/ Ms. Eubanks's testimony is at odds with the

credible evidence presented by AHCA.

41. Patient 14's HHC/POC dated January 20, 2011, ordered

skilled nursing services to be provided one to two times a week

for four weeks then every other week (EOW) for nine weeks. The

HHC/POC also ordered that a HHA was to assist patient 14 with

ADLs, a PT was to evaluate and treat patient 14, a speech

therapist was to evaluate and treat patient 14, and an

occupational therapist was to evaluate and treat patient 14. On

January 25, 2011, patient 14's medical doctor again ordered the

physical therapy and directed the HHA to provide services three

times a week for nine weeks.

42. The evidence regarding patient 14 documented two

skilled nursing visits missed during the first two weeks of the

certification period (January 16, 2011, to March 16, 2011), and

there was no evidence of any HHA service visits for the first two

weeks of patient 14's certification period. Additionally,

patient 14 did not receive three physical therapy visits.

43. Ms. Eubanks testified that patient 14 was in an adult

day care setting and that Faith Home missed no less than four

skilled nursing visits. The "Missed Visit" reports (MVR)

provided by Faith Home purport that patient 14 was in an adult

day care setting; yet, that same MVR documentation fails to

record that patient 14's physician was notified of the lack of

services being provided. Further, the MVR dated (Wednesday)

January 26, 2011, reflects that patient 14's daughter "made

arrangements to have [patient 14] home next on Thursday by 3 p.m.

Understands nurse do [sic] not go to day care." This MVP

reflects that the date of the next Faith Home service visit will

be February 4, 2011, a Friday, not a Thursday.

44. Also, within the material provided by Faith Home, there

is a C/SR dated January 20, 2011. That C/SR records that

patient 14 is "requesting a hold on home health aide visit.

Daughter will be able to provide service for the next few weeks."

Yet, there is also a HHA note dated January 22 or 23, 2011, 9/

detailing HHA services provided to patient 14 on that date. The

inconsistencies in Faith Home's documentation presented during

the hearing are damaging to its credibility as a whole.

45. Patient 15's HHC/POC, dated December 15, 2010, ordered

skilled nursing services to be provided two to three times a week

for nine weeks. As part of the skilled nursing services,

patient 15 was to have her vital signs assessed along with other

specific assessments. The HHC/POC also contained an order to

"Report any changes or concerns to [the] MD & supervisor ASAP."

46. The evidence presented regarding the skilled nursing

visits for November 3 and 5, 2010, failed to reflect patient 15's

neurological assessments or any observations by the nurse and

also failed to provide the "nursing diagnosis/problem." Other

portions to these specific records contain words or phrases to

provide information, a number with a percentage sign, a zero (Ø),

or simple checkmarks indicating a system was observed or treated.

These written words or markings provide clarity to patient 15's

completed assessments or status. Patient 15's skilled nursing

records for December 29 and 31, 2010, and January 2, 12, and 14,

2011, failed to document one or more of the patient's systems:

cardiovascular, genitourinary, neurological, or musculoskeletal.

47. Ms. Eubanks testified that certain portions of

patient 15's skilled nursing notes were completed using a method

called "charting by exception." According to this method, when

the professional leaves an area of the chart blank, it indicates

that nothing is wrong with the patient. A review of patient 15's

skilled nursing notes simply does not support the use of this

methodology. Specifically as an example, on the November 5,

2010, skilled nursing visit note, nothing is checked or notated

in the neuro-sensory section; yet, at the "PAIN" section, there

is a "Ø" marked through all five lines. If the "charting by

exception" method was being used, this area should have been left

blank as there was no pain. It is impossible to determine when

charting by exception is in place when one area of a record has

check marks or specific notations regarding an assessment or

status and another section (or sections) is left blank even

though the HHC/POC specifically ordered that assessment. There

is no base line by which the next skilled nurse would know if

there had been a change in patient 15's assessment or status such

that her attending physician or the supervisor should be

appropriately notified. Ms. Eubanks's testimony is not credible

in light of the evidence presented by AHCA.

The June 2011 Follow up Survey

48. Both parties presented medical records for Patient 2J.

Patient 2J's two HHC/POCs appear to be identical in scope; yet,

one was signed on April 25, 2011, while the other was signed on

April 27, 2011. Within the HHC/POCs, the doctor ordered skilled

nursing services to be provided once in the first week, then one

to two times a week for eight weeks. As part of the skilled

nursing services, patient 2J was to have her vital signs assessed

and other specific assessments completed.

49. The HHC/POCs also ordered a PT to evaluate and treat

patient 2J.

50. Ms. Eubanks testified that the PT evaluation was

ordered on April 8, 2011, when it "came upon [sic] assessment."

However, the HHC/POCs ordering the PT evaluation were not signed

until April 25 or April 27, 2011. Patient 2J's actual physical

therapy evaluation occurred on April 21, 2011, either four or six

days before it was ordered. Faith Home either delayed 13 days in

having the physical therapy evaluation completed, or Faith Home

obtained a physical therapy evaluation prior to having a

physician's order to provide the service. In either instance,

Faith Home did not follow its own policies for providing

services.

51. Although the PT created a care plan for patient 2J,

there is no physician's order directing the physical therapy care

plan be used. Further, the physical therapy services were

actually performed by a physical therapist assistant (PTA) and

provided to patient 2J during weeks four, five, six, and seven of

the certification period. An extra PTA visit was noted in week

seven. Again, Faith Home provided services that were not in

compliance with their own policies.

52. Patient 3J had an April 5, 2011, order for physical

therapy to be provided three times a week for six weeks based on

her gait instability, her osteoarthritis in her knees, and her

degenerative spinal joint disease. There was no evidence of any

physical therapy being provided to patient 3J during the

applicable certification period.

53. Ms. Eubanks testified that patient 3J's actual care

started in February 2011, despite the HHC/POC documentation that

it started on March 24, 2011. Ms. Eubanks blamed a nursing

supervisor for the wrong start date (March 24, 2011) and

confirmed that the difference in start dates would make a

difference in the dates of Faith Home services. Even if one were

to accept the February 2011, order for physical therapy services,

that order is incomplete because it fails to enumerate how many

times a week and how many weeks the physical therapy services

were needed. It is an incomplete order. Ms. Eubanks's testimony

is not credible in light of the evidence presented by AHCA.

54 . Patient 4J's HHC/POC contained a SOC date of April 8,

2011. Therein it ordered skilled nursing services to be provided

two to three times a week for nine weeks. As part of the skilled

nursing services, patient 4J was to have her vital signs assessed

along with other specific assessments. Additionally, the HHC/POC

contained an order for a PT to evaluate and treat.

55. Ms. Miller was unable to locate any documentation of

home health services provided to patient 4J after May 5, 2011

(four missed visits), and there was no evidence that any physical

therapy services were provided to patient 4J.

56. Ms. Eubanks testified that patient 4J was in the

hospital when Faith Home services were not provided to

patient 4J. Although Ms. Eubanks relied on a discharge

instruction sheet to make the claim, there is no date on the

discharge instruction sheet, and no one testified as to the exact

date that patient 4J was admitted to or discharged from the

hospital. Ms. Eubanks's testimony is not credible as it relied

on an undated discharge instruction sheet.

57. Further, although the physical therapy referral for

patient 4J was faxed to the physical therapy agency, that agency

never received the referral and never provided the service.

Faith Home failed to have a system in place to ensure services

ordered by the physician were obtained.

58. Ms. Okpaleke, as the owner of Faith Home, engaged an

expert to help Faith Home "correct all the cites . . . and

implement a plan of correction . . . to make sure that we were in

compliance." Ms. Okpaleke terminated the expert's employment

after the summer. Ms. Okpaleke then started monitoring Faith

Home's practices and ensured that Faith Home returned to

compliance with AHCA's regulations.

59. Ms. Miller's salary at the time of the FH survey was

$20.15. Ms. Miller expended approximately 30 hours in conducting

the recertification survey of Faith Home. Based on her rate of

pay, AHCA expended $1,370.20 for Ms. Miller's services.

60. Ms. Peabody's salary while employed by AHCA during the

FH survey was $21.07 an hour. Ms. Peabody expended approximately

42 hours preparing for, conducting, and completing the FH survey.

Based on her rate of pay, AHCA expended $1,048.23 for

Ms. Peabody's services.

61. Mr. Bronson Sievers is the health facility evaluator

supervisor for AHCA. His salary is $19.87 an hour. Mr. Sievers

expended approximately ten hours reviewing the statement of

deficiencies to determine if the appropriate citations had been

used and the appropriate penalty assessed. Based on his rate of

pay, AHCA expended $198.70 for Mr. Sieivers services.

62. Mr. Sievers responsibility included the supervision of

several AHCA programs and included the home health agencies.

Mr. Sievers determined that the repeated violation warranted a

Class III violation, which resulted in a $1,000.00 fine because

it may affect the clients' well-being and health.

63. Mr. Sievers provided AHCA's interpretation of the fine

imposed when a home health agency demonstrates a pattern of

failing to provide the specified services to its clients or

patients.

CONCLUSIONS OF LAW

64. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011). 10/

65. In the instant case, AHCA has the burden of proving by

clear and convincing evidence that Faith Home committed the

violations as alleged, and, if there are violations, the

appropriateness of any fine resulting from the alleged

violations. Dep't of Banking & Fin., Div. of Securities &

Investor Prot. v. Osborne, Stern & Co. , 670 So. 2d 932 (Fla.

1996).

66. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court held that:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

67. Section 400.462, Florida Statutes, provides in

pertinent part certain definitions as follows:

(12) "Home health agency" means an

organization that provides home health

services and staffing services.

* * *

(14) "Home health services" means health and

medical services and medical supplies

furnished by an organization to an individual

in the individual's home or place of

residence. The term includes organizations

that provide one or more of the following:

(a) Nursing care.

(b) Physical, occupational, respiratory, or

speech therapy.

(c) Home health aide services.

(d) Dietetics and nutrition practice and

nutrition counseling.

(e) Medical supplies, restricted to drugs

and biologicals prescribed by a physician.

(15) "Home health aide" means a person who is

trained or qualified, as provided by rule,

and who provides hands-on personal care,

performs simple procedures as an extension of

therapy or nursing services, assists in

ambulation or exercises, or assists in

administering medications as permitted in

rule and for which the person has received

training established by the agency under s.

400.497 (1).

* * *

(22) "Organization" means a corporation,

government or governmental subdivision or

agency, partnership or association, or any

other legal or commercial entity, any of

which involve more than one health care

professional discipline; a health care

professional and a home health aide or

certified nursing assistant; more than one

home health aide; more than one certified

nursing assistant; or a home health aide and

a certified nursing assistant. The term does

not include an entity that provides services

using only volunteers or only individuals

related by blood or marriage to the patient

or client.

(23) "Patient" means any person who receives

home health services in his or her home or

place of residence.

* * *

(25) "Physician" means a person licensed

under chapter 458, chapter 459, chapter 460,

or chapter 461.

* * *

(28) "Skilled care" means nursing services

or therapeutic services required by law to be

delivered by a health care professional who

is licensed under part I of chapter 464; part

I, part III, or part V of chapter 468; or

chapter 486 and who is employed by or under

contract with a licensed home health agency

or is referred by a licensed nurse registry.

(29) "Staffing services" means services

provided to a health care facility, school,

or other business entity on a temporary or

school-year basis pursuant to a written

contract by licensed health care personnel

and by certified nursing assistants and home

health aides who are employed by, or work

under the auspices of, a licensed home health

agency or who are registered with a licensed

nurse registry.

68. Section 400.464 provides in pertinent part:

(1) The requirements of part II of

chapter 408 apply to the provision of

services that require licensure pursuant to

this part and part II of chapter 408 and

entities licensed or registered by or

applying for such licensure or registration

from the Agency for Health Care

Administration pursuant to this part. A

license issued by the agency is required in

order to operate a home health agency in this

state

69. Section 400.474 provides in pertinent part:

(1) The agency may deny, revoke, and suspend

a license and impose an administrative fine

in the manner provided in chapter 120.

(2) Any of the following actions by a home

health agency or its employee is grounds for

disciplinary action by the agency:

(a) Violation of this part, part II of

chapter 408, or of applicable rules.

(b) An intentional, reckless, or negligent

act that materially affects the health or

safety of a patient.

* * *

(d) Preparing or maintaining fraudulent

patient records, such as, but not limited to,

charting ahead, recording vital signs or

symptoms that were not personally obtained or

observed by the home health agency's staff at

the time indicated, borrowing patients or

patient records from other home health

agencies to pass a survey or inspection, or

falsifying signatures.

* * *

(5) The agency shall impose a fine of $5,000

against a home health agency that

demonstrates a pattern of failing to provide

a service specified in the home health

agency's written agreement with a patient or

the patient's legal representative, or the

plan of care for that patient, unless a

reduction in service is mandated by Medicare,

Medicaid, or a state program or as provided

in s. 400.492 (3). A pattern may be

demonstrated by a showing of at least three

incidences, regardless of the patient or

service , where the home health agency did not

provide a service specified in a written

agreement or plan of care during a 3-month

period. The agency shall impose the fine for

each occurrence. The agency may also impose

additional administrative fines under

s. 400.484 for the direct or indirect harm to

a patient, or deny, revoke, or suspend the

license of the home health agency for a

pattern of failing to provide a service

specified in the home health agency's written

agreement with a patient or the plan of care

for that patient . (emphasis added).

70. Section 400.484 provides:

(1) In addition to the requirements of

s. 408.811 , the agency may make such

inspections and investigations as are

necessary in order to determine the state of

compliance with this part, part II of

chapter 408, and applicable rules.

(2) The agency shall impose fines for

various classes of deficiencies in accordance

with the following schedule:

(a) A class I deficiency is any act,

omission, or practice that results in a

patient's death, disablement, or permanent

injury, or places a patient at imminent risk

of death, disablement, or permanent injury.

Upon finding a class I deficiency, the agency

shall impose an administrative fine in the

amount of $15,000 for each occurrence and

each day that the deficiency exists.

(b) A class II deficiency is any act,

omission, or practice that has a direct

adverse effect on the health, safety, or

security of a patient. Upon finding a class

II deficiency, the agency shall impose an

administrative fine in the amount of $5,000

for each occurrence and each day that the

deficiency exists.

(c) A class III deficiency is any act,

omission, or practice that has an indirect,

adverse effect on the health, safety, or

security of a patient. Upon finding an

uncorrected or repeated class III deficiency,

the agency shall impose an administrative

fine not to exceed $1,000 for each occurrence

and each day that the uncorrected or repeated

deficiency exists.

(d) A class IV deficiency is any act,

omission, or practice related to required

reports, forms, or documents which does not

have the potential of negatively affecting

patients. These violations are of a type

that the agency determines do not threaten

the health, safety, or security of patients.

Upon finding an uncorrected or repeated class

IV deficiency, the agency shall impose an

administrative fine not to exceed $500 for

each occurrence and each day that the

uncorrected or repeated deficiency exists.

(3) In addition to any other penalties

imposed pursuant to this section or part, the

agency may assess costs related to an

investigation that results in a successful

prosecution, excluding costs associated with

an attorney's time.

71. Section 400.487 provides in pertinent part:

(2) When required by the provisions of

chapter 464; part I, part III, or part V of

chapter 468; or chapter 486, the attending

physician, physician assistant, or advanced

registered nurse practitioner, acting within

his or her respective scope of practice,

shall establish treatment orders for a

patient who is to receive skilled care. The

treatment orders must be signed by the

physician, physician assistant, or advanced

registered nurse practitioner before a claim

for payment for the skilled services is

submitted by the home health agency. If the

claim is submitted to a managed care

organization, the treatment orders must be

signed within the time allowed under the

provider agreement. The treatment orders

shall be reviewed, as frequently as the

patient's illness requires, by the physician,

physician assistant, or advanced registered

nurse practitioner in consultation with the

home health agency.

* * *

(4) Each patient has the right to be

informed of and to participate in the

planning of his or her care. Each patient

must be provided, upon request, a copy of the

plan of care established and maintained for

that patient by the home health agency.

(5) When nursing services are ordered, the

home health agency to which a patient has

been admitted for care must provide the

initial admission visit, all service

evaluation visits, and the discharge visit by

a direct employee. Services provided by

others under contractual arrangements to a

home health agency must be monitored and

managed by the admitting home health agency.

The admitting home health agency is fully

responsible for ensuring that all care

provided through its employees or contract

staff is delivered in accordance with this

part and applicable rules.

(6) The skilled care services provided by a

home health agency, directly or under

contract, must be supervised and coordinated

in accordance with the plan of care .

72. Florida Administrative Code Rule 59A-8.0215 provides:

(1) A plan of care shall be established in

consultation with the physician, physician

assistant, or advanced registered nurse

practitioner, pursuant to Section 400.487,

F.S., and the home health agency staff who

are involved in providing the care and

services required to carry out the physician,

physician assistant, or advanced registered

nurse practitioner's treatment orders. The

plan must be included in the clinical record

and available for review by all staff

involved in providing care to the patient.

The plan of care shall contain a list of

individualized specific goals for each

skilled discipline that provides patient

care, with implementation plans addressing

the level of staff who will provide care, the

frequency of home visits to provide direct

care and case management.

(2) Home health agency staff must follow the

physician, physician assistant, or advanced

registered nurse practitioner's treatment

orders that are contained in the plan of

care. If the orders cannot be followed and

must be altered in some way, the patient's

physician, physician assistant, or advanced

registered nurse practitioner must be

notified and must approve of the change. Any

verbal changes are put in writing and signed

and dated with the date of receipt by the

nurse or therapist who talked with the

physician, physician assistant, or advanced

registered nurse practitioner's office.

(3) The patient, caregiver or guardian must

be informed by the home health agency

personnel that:

(a) He has the right to be informed of

the plan of care;

(b) He has the right to participate in

the development of the plan of care;

and

(c) He may have a copy of the plan if

requested.

73. Rule 59A-8.003 provides in pertinent part:

(5) In addition to any other penalties

imposed pursuant to this rule, the agency may

assess costs related to an investigation that

results in a successful prosecution, pursuant

to Section 400.484(3), F.S. The prosecution

can be resolved by stipulation settlement or

final hearing. The following costs may

apply: travel costs related to the

investigation; investigative time by AHCA's

surveyor or surveyors including travel time;

processing time by AHCA's professional staff

and administrative support staff of Field

Operations, and processing time for

administrative support staff and professional

staff of the AHCA Licensed Home Health

Programs Unit in Tallahassee. The costs

related to AHCA's professional staff and

support staff will be determined according to

the hourly rate of pay for those positions.

74. AHCA has established by clear and convincing evidence

that Faith Home has failed to assure that the plan of care was

followed for various patients in its care and/or that Faith Home

has failed to implement the plan of care for various patients in

its care.

75. The evidence was overwhelming that Faith Home failed to

provide services to patients as enumerated above by: failing to

provide skilled nursing visits as ordered; failing to provide

home health aide services as ordered; failing to provide timely

physical therapy evaluations and/or treatments as ordered;

failing to notify physicians when treatment plans were altered or

changed unilaterally; and/or failing to record specific

assessments or observations as ordered for various patients.

76. AHCA has established, by clear and convincing evidence,

that Faith Home has demonstrated patterns of failures to provide

a service specified in the home health agency's written agreement

with a patient or the patient's legal representative, or the plan

of care for that patient, in that Faith Home failed to provide

home health services visits as ordered in various patient's plan

of care. This pattern was first demonstrated during the February

2011 AHCA survey and was also found during the June 2011 AHCA

survey re-visit. The fine specified in section 400.474(5) is

appropriate.

77. Faith Home has committed a Class III violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Agency for Health Care

Administration, enter a final order finding that Faith Home:

1. Violated section 400.484 by committing a Class III

violation as identified during the February 2011 survey and found

again during the June 2011 survey and imposing an $1,000.00

administrative fine;

2. Violated section 400.474(5) as found in no less than

107 instances when Faith Home failed to provide services ordered

by an appropriate authority and imposing a $45,000.00

administrative fine; and

3. Pursuant to section 400.484(3), AHCA shall assess and

receive $2,617.13 for the investigation costs associated with

this case as evidenced by the time expended by the three agency

witnesses.

DONE AND ENTERED this 19th day of April, 2012, in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April, 2012.

ENDNOTES

1/ AHCA objected to the last page of Faith Home's Exhibit 6, an

undated, unsigned "Discharge Instructions" sheet for patient 14.

Although admitted into evidence, this document is not probative.

2/ Towards the end of 2010, Ms. Okpaleke had a family member who

was hospitalized, and Ms. Okpaleke was not in the office on a

daily basis, as she was attending to that circumstance.

3/ In order to keep the June 2011 survey patients distinct from

the February 2011 survey patients, there will be the letter "J"

attached to each patient involved in the June 2011 survey.

4/ Although a skilled nursing visit was ordered, that was not

within the AAC and will not be discussed.

5/ It is noted that patient 7 signed the December 29, 2010, PT

evaluation and the four PT revisit notes. Documents completed by

Faith Home employees reflect that the patient was "unable to

see," "unable to sign" or "the patient is blind" in the signature

lines relating to services.

6/ Faith Home's own policy requires that a "Client must have a

telephone or use of [a] phone in close distance for emergency

situation."

7/ A tracheotomy is a surgical incision into a patient's trachea

(throat) to keep the airway open (sometimes a tube is inserted

therein); it helps facilitate breathing.

8/ Although not part of this AAC, a review of billing issues

based on records in error may be appropriate.

9/ The actual date is illegible; it is either January 22 or 23,

2011. Either January day would evidence services provided by a

HHA. Such services were rendered during the period Faith Home

claimed that the daughter would provide the services.

10/ All future references to Florida Statutes will be to the 2011

version, unless otherwise indicated.

COPIES FURNISHED:

James H. Harris, Esquire

Agency for Health Care Administration

The Sebring Building, Suite 330D

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Thomas W. Caufman, Esquire

Tammy Stanton, Esquire

Quintairos, Prieto, Wood and Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

William H. Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

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.