21-001832 Agency For Health Care Administration vs. Conway Lakes Health And Rehabilitation Center Status: Closed Recommended Order on Friday, October 8, 2021.

Summary: AHCA proved by clear and convincing evidence that Respondent's December 2019 quality assessment payment was not timely paid, and that $19,000 is the appropriate fine resulting from the untimely payment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Petitioner ,

C ase No. 21 - 1832

vs.

C ONWAY L AKES H EALTH A ND

R EHABILITATION C ENTER ,

Respondent .

/

R ECOMMENDED O RDER

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

Florida, via Zoom video conference on August 4 , 2021, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative Hearin gs.

A PPEARANCES

For Petitioner: Richard J. Santurri, Esquire

Agency for Health Care Administration

Building 3, Room 3428A

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Taylor Huston, General Counsel

Clear Cho ice Health Care

709 South Harbor City Boulevard

Melbourne, Florida 32901

S TATEMENT OF T HE I SSUE S

Whether Conway Lakes Health and Rehabilitation Center (Respondent),

timely submitted its monthly nursing home quality assessment fee for

December 2019; and, if not, whether a fine should be imposed for each day

that the payment was delinquent .

P RELIMINARY S TATEMENT

Petitioner, Agency for Health Care Administration

(Petitioner/Agency/AHCA), by correspondence dated February 10, 2020,

informed Respond ent that its facility Ñhas an outstanding balance pertaining

to a Quality Assessment Fee for December [2019].Ò Respondent challenged

the Agency determination described in the referenced correspondence by

timely filing a Petition for Formal Administrative H earing. On June 9, 2021,

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 Katrina Derico -

Harris and Rafael DeCambra . Respondent offered testimony from Brittney

White. PetitionerÔs Exhibits 1 through 8 were admitted into evidence.

RespondentÔs Exhibits 9 through 19 were also admitted into evidence.

A single - volume Transcript of the final hearing was filed on August 26,

2021. An Order was entered on the partiesÔ Joint Motion for Additional Time

to File Proposed Recommended Orders, which allowed for the filing of

proposed recommended orders (PRO) on or before September 27, 2021.

Petitioner and Respondent each timely filed a PRO and the same have been

considered in preparing this Recommended Order.

F INDINGS OF F ACT

1. AHCA, pursuant to section 409.913, Florida Statutes (2019), 1 is

responsible for overseeing and administering the Medicaid program for the

State of Florida.

1 All subsequent references to Florida Statutes will be to 201 9 , unless otherwise indicated.

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

provider authorized to provide nursing home services and had a valid

Medicaid provider agreement with AHCA.

3. Respondent operates a nursing home facility as defined by section

409.9082(1 )(b), and is required, pursuant to section 409.9082(2), to Ñreport

monthly to [AHCA] 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.Ò The mon thly amount assessed pursuant

to section 409.9082 is known as a ÑQuality Assessment Fee.Ò

4. Section 409.9082(2) provides, in part, that AHCA Ñshall collect, and

each facility shall pay, the quality assessment each month[,] and [AHCA]

shall collect the ass essment from nursing home facility providers by the 20th

day of the next succeeding calendar month.Ò 2

5. RespondentÔs Quality Assessment Fee for December 2019 was to be

remitted to and received by AHCA on or before January 21, 2020. It is

undisputed that o n February 28, 2020, AHCA received payment of

RespondentÔs Quality Assessment Fee for December 2019, and that this was

the first instance where Respondent failed to timely remit payment of the fee

to AHCA.

6. Brittney White is the accounts payable manager for the management

company hired by Respondent to process and remit payment of its Quality

2 Chapter 409 is silent regarding the issue of the proper method for determining the due date

of the Fee when the Ñ20th day of the next succeeding calendar monthÒ falls on a legal

holiday. Section 110.117, Florida Statutes, has set as ide ÑMartin Luther King, Jr.Ôs BirthdayÒ

as a legal holiday. Rule 2.514( a ) (1)(C) of the Florida Rules of General Practice and Judicial

Administration provides, in part, that for a statute that does not specify a method of

computing time, and the time perio d in the statute is stated in days or a longer unit of time,

then Ñ include the last day of the period, but if the last day is a Saturday, Sunday, or legal

holiday È the period continues to run until the end of the next day that is not a Saturday,

Sunday, o r legal holiday.Ò It is undisputed that January 20, 2020, was the date on which

Dr. Martin Luther King Jr.Ôs birthday was recognized. Therefore, January 21, 2020, was the

due date for RespondentÔs December 2019 Quality Assessment Fee, and January 22, 2020, is

the first day of the late period .

Assessment Fees. Ms. White testified that on January 17, 2020, check

number 2010032675 in the amount of $56,577.12 was sent to AHCA via

FedEx, and delivered to the AgencyÔs accounts receivable department at

9:36 a.m. on January 21, 2020. According to Ms. White, she included a total

of nine checks in the FedEx package, and the previously referenced check,

which was submitted on behalf of Conway Lakes Health and Rehab ilitation

Center, was included in the batch of nine checks.

7. All p a yments ma d e by c h ec k a re re ce ived by A HCA Ô s F i n a n c ial

Se rvi c e s c a sh of f ice ( mailroom ) . Upon receipt of a check, sta f f i n the mailroom

will stamp the payment as Ñreceived,Ò d e te r m i n e w h a t t he p a yment i s fo r ,

stamp the payment Ñ for d e posi t ,Ò ensure that the a ppro p ri a t e a cc o untant

v e ri f ies the p a y m e nt, e nte r the c h ec k info r mation i nto t he F A B S sys t e m , 3

g e n e r a te a la s e r f ic h e , a nd then electronically send the c h e c k t o the b a nk f o r

d e p o si t .

8. When an envelope is received in the mailroom , the same is opened, and

if there is a check in the envelope it is removed, and the company name,

check number, and what the payment is for are recorded.

9. On January 21, 2020, AHCA received a FedEx package wh ich contained

several invoices and checks for payment of Quality Assessments. The FedEx

package did not contain a check or invoice for Conway LakesÔ December 2019

Quality Assessment.

10. AHCA, by correspondence dated February 10, 2020, informed

Respondent that payment of its December 2019 Quality Assessment was past

due. AHCA finally received RespondentÔs December 2019 Quality Assessment

payment on February 28, 2020 .

3 FABS is the system used to log in all checks that are received for Quality Assessment

payments.

C ONCLUSIONS OF L AW

11. DOAH has jurisdiction over the subject matter of and the parties to

this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2021) .

12. This is a proceeding in which AHCA seeks to impose a disciplinary

sanction, by way of an administrative fine, against RespondentÔs nursing

home facility license. Be cause disciplinary proceedings are considered to be

penal in nature, AHCA is required to prove the allegations against

Respondent by clear and convincing evidence. DepÔt of Banking & Fin. v.

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

2d 292 (Fla. 1987).

13. Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). As stated

b y the Florida Supreme Court, the standard:

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 weigh t to convince

the trier of fact without 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). ÑAlthough this s tandard of proof may be met

where the evidence is in conflict, it seems to preclude evidence that is

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

(Fla. 1st DCA 1991).

14. Section 409.907, which governs Medicaid provider agreeme nts, 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

healing 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.

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

(2) A quality assessmen t is imposed upon each

nursing home 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 rat e

must be uniform except as prescribed 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 nu mber of days. The agency

shall 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 not ify providers

of the quality 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 agencyÔs initial

payment of the Medi caid 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 hom e

facility license; and

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

each delinquent payment, not to exceed the amount

of the assessment.

16. Florida Administrative Code Rule 59G - 6.010 4 provides, in part, as

follows:

(3) Each facility shall repor t 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 l ater than

20 days 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 facilityÔs first offe nse, 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 imp osed until the

quality assessment is paid in full, but in no event

shall the fine exceed the amount of the quality

4 The March 25, 2018, version of r ule 59G - 6.010 was in effect at the time of the quality

assessment payment at issue her ein. Generally, the law in effect at the time of the alleged

violation applies. See Orasan v. Ag. f or Health Care Admin. , 668 So. 2d 1062 (Fla. 1st DCA

1996).

assessment. A subsequent offense is defined as any

offense within a period of five years preceding the

most recent quality assessment due dat e.

(c) An offense is defined as one monthÔs quality

assessment payment not received by the 20th day

of the next succeeding calendar month.

17. The essence of RespondentÔs defense is twofold. First, Respondent

contends that the check sent for the December 2019 Quality Assessment was

lost by AHCA. Second, Respondent contends that section 409.908(7) gives

AHCA Ñdiscretion regarding whether to assess penalties against a provider

for failure to timely pay a quality assessment fee,Ò and further, that once

AHCA realized that payment had not been received, the agency should have

contacted Respondent by expedited means so as to minimize the amount of

the daily fine.

18. Regarding RespondentÔs 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.

R espondentÔs inability to establish such a predicate places Respondent

squarely within the ÑmandatoryÒ 5 provisions of section 409.9082, which

5 As previously noted, section 409.9082 provides that the agency ÑshallÒ collect from a

provider the quality assessment by the 20th day of the next succeeding calendar month, and

imposes Ña fine of up to $1,000 per day for each delinquent payment.Ò As observed in Allied

Fidelity Insurance Co. v. State , 415 So. 2d 109, 111 (Fla. 3d DCA 1982):

Whether ÑshallÒ 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

ÑshallÒ refers to some required action preceding a possible

deprivation of a substan tive right, or the imposition of a

legislatively - intended penalty, or action to be taken for the

public benefit, it is held to be mandatory.

Because section 409.9082 uses ÑshallÒ in the context of collecting the assessment payment,

and imposes a fine when a provider fails to timely remit payment, then it is evident that use

of the word ÑshallÒ in this context imposes a mandatory obligation on the provider to timely

remit payment.

require AHCA to Ñcollect the assessment from nursing home facility providers

by the 20th day of the next succeeding calendar month.Ò

19. RespondentÔs second defense is grounded in its belief that section

409.9082(7) grants AHCA discretion to waive delinqu ent quality assessment

payment fines. Respondent, in support of its argument, notes that the statute

provides that AHCA ÑmayÒ seek any of the listed remedies, and therefore, the

use of the word ÑmayÒ implies that AHCA has discretion to significantly

reduce the fine, or 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.

20. As previously noted, section 409.9082(7) provides that AHCA Ñmay

seek any of the follow ing remedies for failure of any nursing home facility

provider to pay its assessment timely.Ò The phrase Ñany of the following

remediesÒ is a limitation on AHCAÔs authority; and this limitation dictates

that AHCA can only exercise its discretion within the framework established

by the Legislature. AHCA has acted herein within the framework established

by the Legislature by narrowing , or otherwise focusing, the exercis e of it s

discretion , as expressed in r ule 59G - 6.010, such that the fine for RespondentÔs

fi rst offense is fixed at $500 per day until the quality assessment is paid in

full. If AHCA exercised its discretion in the manner suggested by

Respondent, then the agency, by doing so, would most certainly have acted

contrary to its own rule.

21. AHCA prov ed by clear and convincing evidence that Respondent failed

to remit its December 2019 quality assessment payment by the due date of

January 21, 2020.

22. AHCA proved by clear and convincing evidence that RespondentÔs

December 2019 quality assessment paymen t was received by the agency on

February 28, 2020.

23. AHCA proved by clear and convincing evidence that RespondentÔs

failure to timely remit its December 2019 quality assessment payment

violates section 409.9082, and that this statutory violation is Respo ndentÔs

first offense within the meaning of rule 59G - 6.010.

24. Rule 59G - 6.010(4) provides that Ñ[f]or a facilityÔs first offense, a fine of

$500 per day shall be imposed until the quality assessment is paid in full È . Ò

RespondentÔs December 2019 quality assessment payment was received by

AHCA 38 days after the due date, and therefore, $19,000 is the fine resulting

from the untimely payment.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

hereby RECOMMENDED that Petit ioner, Agency for Health Care

Administration, enter a final order finding that Conway Lakes Health &

Rehabilitation Center committed its first offense of section 409.9082 and

imposing a fine of $1 9 , 0 00.

D ONE A ND E NTERED this 8th day of October , 2021 , in T allahassee, Leon

County, Florida.

S

L INZIE F. B OGAN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of Octo ber , 2021 .

C OPIES F URNISHED :

Taylor Huston, General Counsel Richard J. Santurri, Esquire

Clear Choice Health Care Agency for Health Care Administration

709 South Harbor City Boulevard Building 3, Room 3428A

Melbourne, Florida 32901 2727 Mahan Drive

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration William H. Roberts, Acting Gen eral

2727 Mahan Drive, Mail Stop 3 Counsel

Tallahasse e, Florida 32308 Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Simone Marstiller, Secretary Tallahassee, Florida 32308

Agency for Health Care Administration

2727 Mahan Drive, Building 3 Shena L. Grantham, Esquire

Tallahassee, Florida 32308 - 5407 Agency for Health Care Administration

Building 3, Room 3407B

Thomas M. Hoeler, Esquire 2727 Mahan Drive

Agency for Health Care Administration Tallahassee, Florida 32308

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written e xceptions 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.