19-004056 Agency For Health Care Administration vs. Life Care Center Of Punta Gorda Status: Closed Recommended Order on Tuesday, November 26, 2019.

Summary: ACHA proved by clear and convincing evidence that Respondent's February 2019 quality assessment payment was not timely paid, and that $11,500 is the appropriate fine resulting from the untimely payment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner , Case No. 19 - 4056

vs.

LIFE CARE CENTER OF PUNTA GORDA ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Tallahassee, Florida, on October 3 , 2019, before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Bradley Stephen Butler, Esquire

Ryan McNeill, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Amy W. Schrader, Esquire

Baker Donelson

101 North Monroe Street , Suite 925

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

Whether Life Care Center of Punta Gorda (Respondent), timely

submitted its monthly nursing home quality assessment fee for

February 2019 ; and, if not, whether a fine should be imposed for

each day that the payment was delinquent.

PRELIMINARY STATEMENT

Petitioner, Agency for Health Care Administration

(Petitioner/Agency/AHCA), by correspondence dated April 3, 2019,

informed Respondent that its facility “had an outstanding balance

pertaining to a Quality Assessment Fee for February [2019].”

Respondent challenged the Agency determination described in the

referenced correspondence by timely filing a Petition for Formal

Administrative Hearing. On July 31, 2019, Petitioner referred

this matter to the Division of Administrative Hearings (DOAH) for

assignment of an Administrative Law Judge.

At the final hearing, Petitioner presented the testimony of

Darelyn Talbott, and Respondent offered testimo ny from Katrina

Derico - Harris. Joint Exhibits 1 through 8 were admitted into

evidence. Respondent’s Exhibit 1 was admitted into evidence for

the limited purpose of establishing that a check fo r payment of

the February 2019 Q uality A ssessment F ee was gene rated by

Respondent prior to payment due date of March 20, 2019.

A single - volume Transcript of the final hearing was filed on

October 3, 2019. An Order was entered on the parties’ Agreed

Motion for Extension of Time, which allowed for the filing of

propos ed recommended orders (PRO) on or before October 30, 2019.

Petitioner and Respondent each timely filed a PRO and the same

have been considered in preparing this Recommended Order.

FINDING S OF FACT

1. AHCA, pursuant to section 409.913, Florida Statutes

(2 018), 1/ is responsible for overseeing and administering the

Medicaid program for the State of Florida.

2. At all times relevant hereto, Respondent was a Florida

Medicaid provider authorized to provide nursing home services,

and had a valid Medicaid provid er agreement with AHCA.

3. Respondent o perates a nursing home facility as defined

by section 4 09.9082(1)(b), and is required, pursuant to section

409.9082(2), to “report monthly to [AHCA] its total number of

resident days, exclusive of Medicare Part A r esident days, and

remit an amount equal to the assessment rate times the reported

number of days.” The monthly amount assessed pursuant to section

409.9082 is known as a “Quality Assessment Fee.”

4 . Section 409.9082(2) provides, in part, that AHCA “shall

collect, and each facility shall pay, the quality assessment each

month[, and [AHCA] shall collect the assessment from nursing home

facility providers by the 20th day of the next succeeding

calendar month.”

5. Respondent’s Quality Assessment Fee for Febr uary 2019

was to be remitted to AHCA by March 20, 2019. It is undisputed

that AHCA received payment of Respondent’s Quality Assessment Fee

on April 12, 2019, and that this was the first instance where

Respondent failed to timely remit payment of the fee t o AHCA.

6. In explaining why the Quality Assessment Fee was not

tendered by the due date, Ms. Talbott testified that Respondent’s

customary process is to remit payment by FedEx “so that . . .

[there is] a tracking mechanism on it.” Ms. Talbott explained

that her investigation revealed that the customary process for

mailing payment to AHCA was not followed in the instant dispute

because the accounts payable clerk, instead of using FedEx, and

as a consequence of being distracted by a family emergency,

inadv ertently mailed the payment via the United States Postal

Service, without requesting delivery confirmation. The accounts

payable clerk did not testify during the final hearing and there

is no specific finding of fact that the check was not delivered

to AH CA because of any act(s) or omission(s) by the accounts

payable clerk.

7. The check that was purportedly mailed by the accounts

payable clerk for payment of the Quality Assessment Fee was never

received by AHCA, and Ms. Talbott credibly testified that the

same was never returned to Respondent by the postal service.

8. AHCA, by correspondence dated April 3, 2019, and mailed

on April 9, 2019, informed Respondent that there was “an

outstanding balance pertaining to a Quality Assessment Fee for

February [201 9],” and that payment of the same was due

immediately. Respondent paid the Quality Assessment Fee on

April 12, 2019.

CONCLUSIONS OF LAW

9. DOAH has jurisdiction over the subject matter of and the

parties to this proceeding pursuant to sections 120.569 an d

120.57(1), Florida Statutes.

1 0. This is a proceeding in which AHCA seeks to impose a

disciplinary sanction, by way of an administrative fine, against

Respondent’s license to operate as a Medicaid provider. Because

disciplinary proceedings are consider ed to be penal in nature,

AHCA is required to prove the allegations against Respondent by

clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

11. Cle ar and convincing evidence “requires more proof than

exclusion of a reasonable doubt.’” In re Graziano , 696 So. 2d

744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standa rd:

entails both a qualitative and quantitative

standard. The evidence must be credible; the

memories of the witnesses must be clear and

without confusion; and the sum total of the

evidence must be of sufficient weight to

convince the trier of fact withou t hesitancy.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(citing, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

“Although this standard of proof may be met where the evidence is

in conflict, it seems to preclude evidence that is ambiguous.”

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 989

(Fla. 1st DCA 1991).

12. Section 409.907, which governs Medicaid provider

agreements, states, in part, as follows:

(1 ) Each provider agreement shall require the

provider to comply fully with all state and

federal laws pertaining to the Medicaid

program, as well as all federal, state, and

local laws pertaining to licensure, if

required, and the practice of any of the

heal ing arts, and shall require the provider

to provide services or goods of not less than

the scope and quality it provides to the

general public.

13. Section 409.9082 provides, in part, as follows:

(2) A quality assessment is imposed upon

each nursing hom e facility. The aggregated

amount of assessments for all nursing home

facilities in a given year shall be an amount

not exceeding the maximum percentage allowed

under federal law of the total aggregate net

patient service revenue of assessed

facilities. The agency shall calculate the

quality assessment rate annually on a per -

resident - day basis, exclusive of those

resident days funded by the Medicare program,

as reported by the facilities. The per -

resident - day assessment rate must be uniform

except as pre scribed in subsection (3). Each

facility shall report monthly to the agency

its total number of resident days, exclusive

of Medicare Part A resident days, and remit

an amount equal to the assessment rate times

the reported number of days. The agency

shal l collect, and each facility shall pay,

the quality assessment each month. The

agency shall collect the assessment from

nursing home facility providers by the 20th

day of the next succeeding calendar month.

The agency shall notify providers of the

qualit y assessment and provide a standardized

form to complete and submit with payments.

The collection of the nursing home facility

quality assessment shall commence no sooner

than 5 days after the agency’s initial

payment of the Medicaid rates containing the

elements prescribed in subsection (4).

Nursing home facilities may not create a

separate line - item charge for the purpose of

passing the assessment through to residents.

* * *

(7) The agency may seek any of the following

remedies for failure of any nursing home

facility provider to pay its assessment

timely:

(a) Withholding any medical assistance

reimbursement payments until such time as the

assessment amount is recovered;

(b) Suspension or revocation of the nursing

home facility license; an d

(c) Imposition of a fine of up to $1,000 per

day for each delinquent payment, not to

exceed the amount of the assessment.

14. Florida Administrative Code Rule 59G - 6.010(4) provides,

in part, as follows:

(3) Each facility shall report monthly to the

Agency for Health Care Administration (AHCA)

its total number of resident days and remit an

amount equal to the assessment rate times the

reported number of days. Facilities are

required to submit their full quality

assessment payment no later than 20 day s from

the next succeeding calendar month.

(4) Providers are subject to the following

monetary fines pursuant to section

409.9082(7), Florida Statutes (F.S.), for

failure to timely pay a quality assessment:

(a) For a facility’s first offense, a fine of

$500 per day shall be imposed until the

quality assessment is paid in full, but in no

event shall the fine exceed the amount of the

quality assessment.

(b) For any offense subsequent to a first

offense, a fine of $1,000 per day shall be

imposed until th e quality assessment is paid

in full, but in no event shall the fine exceed

the amount of the quality assessment. A

subsequent offense is defined as any offense

within a period of five years preceding the

most recent quality assessment due date.

(c) An offense is defined as one month’s

quality assessment payment not received by the

20th day of the next succeeding calendar

month.

15. Respondent agrees that the February 2019 Quality

Assessment Payment was not timely received by AHCA. The essence

of Resp ondent’s defense is twofold. First, Respondent contends

that the United States Postal Service is to blame for not

delivering the qua lit y assessment payment to AHCA. Second,

regarding whet her to assess penalties against a provider for

failure to timely pay a quality assessment fee,” and further, that

once AHCA realized that payment had not been received, the agency

should have contacted Respondent by expedited means (e.g. fax,

email, or pho ne), as opposed to certified mail.

16. Regarding Respondent’s first defense, the evidence

failed to establish that Respondent actually mailed the missing

payment to AHCA and that the agency actually received the missing

payment before the due date. Respo ndent’s inability to establish

such a predicate places Respondent squarely within the

“mandatory” 2/ provisions of section 409.9082, which require AHCA

to “collect the assessment from nursing home facility providers by

the 20th day of the next succeeding ca lendar month.”

Additionally, in considering section 409.9082, there is no

indication that the Legislature authorized an exception to the

timely remittance requirement for payments lost or untimely

delivered by the United States Postal Service.

17. Respon dent’s second defense is grounded in its belief

that section 409.9082(7) grants AHCA discretion to waive

delinquent quality assessment payment fines. Respondent, in

support of its argument, notes that the statute provides that AHCA

“may” seek any of the l isted remedies, and therefore, the use of

the word “may” implies that AHCA has discretion to pursue no

remedy at all. While it is true that AHCA has some discretion

under the statute, that discretion is not as broad as suggested by

Respondent.

18. As pre viously noted, section 409.9082(7) provides that

AHCA “may seek any of the following remedies for failure of any

nursing home facility provider to pay its assessment timely.” The

authority; and this limitation dictates that AHCA can only

exercise its discretion within the framework established by the

Legislature. Succinctly stated, the clear text of the statute

does not support Respondent’s contention that AHCA is authorized

to waive, or oth erwise avoid, the imposition of a fine resulting

from a provider’s untimely payment of its quarterly assessment.

19. AHCA proved by clear and convincing evidence that

Respondent failed to remit its February 2019 quality assessment

payment by the due dat e of March 20, 2019.

20. AHCA proved by clear and convincing evidence that

Respondent’s February 2019 quality assessment payment was received

by the agency on April 12, 2019.

21. AHCA proved by clear and convincing evidence that

Respondent’s failure to t imely remit its February 2019 quality

assessment payment violates section 409.9082, and that this

statutory violation is Respondent’s first offense within the

meaning of r ule 59G - 6.010.

22. Rule 59G - 6.010(4) provides that “[f]or a facility’s

first offense , a fine of $500 per day shall be imposed until the

2019 quality assessment payment was received by AHCA 23 days after

the due date, and therefore, $11,500 is the fine resulting from

the unt imely payment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Care Administration, enter a final order finding that Life Care

Center of Punta Gorda committed its fi rst offense of section

409.9082 and imposing a fine of $11,500.

DONE AND ENTERED this 26th day of November , 2019 , in

Tallahassee, Leon County, Florida.

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrativ e 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 26th day of November , 2019 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2018,

unless otherwise indicated.

2 / As previously noted, section 409.9082 provides that the agency

“ shall ” collect from a provider the quality assessment by the

20th day of the next succee ding calendar month, and imposes “a

fine of up to $1,000 per day for each delinquent payment.” As

observed in Allied Fidelity Insurance Co. v. State , 415 So. 2d

109 , 111 (Fla. 3d DCA 1982) :

Whether “shall” is mandatory or

discretionary will depend, then, upon

the context in which it is used and the

legislative intent expressed in the

statute. Thus, for example, where

“shall” refers to some required action

preceding a possible deprivation of a

substantive right, or the imposition of

a legislatively - intend ed penalty, or

action to be taken for the public

benefit, it is held to be mandatory.

Because section 409.9082 uses “shall” in the context of

collecting the assessment payment, and imposes a fine when a

provider fails to timely remit payment, then it is e vident that

use of the word “shall” in this context imposes a mandatory

obligation on the provider to timely remit payment.

COPIES FURNISHED:

Bradley Stephen Butler, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee , Florida 32308

(eServed)

Amy W. Schrader, Esquire

Baker Donelson

101 North Monroe Street , Suite 925

Tallahassee, Florida 32301

(eServed)

Ryan McNeill, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32 308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Talla hassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2 727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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.