96-004125 Agency For Health Care Administration vs. G And M Special Nursing Care, Inc. Status: Closed Recommended Order on Friday, April 11, 1997.

Summary: Petitioner failed to prove home health care had not provided direct services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4125

)

G & M SPECIAL NURSING CARE, INC. )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on January 21, 1997, at Miami, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jean Claude Dugue, Esquire

Agency fo r Health Care Administration rd

8355 Northwest 53 Street

Miami, Florida 33166

Edward M. Lerner, Esquire

Agency for Health Care Administration

3810 Inverrary Boulevard, Suite 405-408

Lauderhill, Florida 33319

For Respondent: William M. Furlow, Esquire

Katz, Kutter, Haigler, Alderman,

Marks, Bryant & Yon, P.A.

106 East College Avenue

Po st Office Box 1877

Tallahassee, Florida 32302-1877

STATEMENT OF THE ISSUES

Whether Respondent committed the violation alleged in the

administrative complaint; and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

This case began on July 5, 1996, when the Petitioner, Agency

for Health Care Administration , entered an administrative

complaint against the Respondent, G & M Special Nursing Care,

Inc., d/b/a G & M Special Nursing Care, that alleged a violation

of Rule 59A-8.0086(1)(d), Florida Administrative Code , and sought

to levy a fine in accordance with Section 400.474, Florida

Statutes . More specifically, the complaint alleged that

Respondent had “not admitted a patient since March of 1994.”

Thereafter, Respondent timely requested an administrative

hearing, disputed the material allegations of the complaint, and

the matter was forwarded to the Division of Administrative

Hearings for formal proceedings on August 28, 1996.

At the hearing, the Petitioner presented the testimony of

Faye McGann and Faye Booker. Respondent presented the testimony

of Graciela Alayon. Respondent’s exhibits numbered 1, 2, and 3

have been admitted into evidence. The transcript of the

proceeding was filed on February 6, 1997. The Respondent’s

proposed recommended order has been considered in the preparation

of this order. Petitioner has not submitted a proposed order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility of regulating home health care agencies.

2. A t all times material to this case, Respondent has been

licensed as a home health care agency.

3. On March 26, 1996, a registered nurse specialist went to

the Respondent’s place of business to perform an annual survey.

Such survey allows an agency to verify compliance with applicable

rules and statutes of the Petitioner.

4. In this instance, the surveyor requested the files of

the Respondent’s active patients. Since there were no active

files on the date in question, Respondent was unable to produce

same. The surveyor did not review the Respondent’s files for the

preceding six months to determine if the agency had had an active

patient within that time frame. Nor did the surveyor request the

files for any active patients for the last six months.

5. In fact, Respondent provided direct nursing services to

a patient between November 11, 1995, and November 24, 1995.

6. At all times material to the allegations of this case,

Respondent provided nursing and home health aide services to

another agency, but also provided direct nursing services to at

least one of its own patients every six months.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings.

8. Section 400.474, Florida Statutes , authorizes the

Petitioner to deny, revoke, or suspend a license, or impose an

administrative fine in the manner provided in chapter 120, for a

violation of the chapter or applicable rules of the Agency for

Health Care Administration (AHCA).

9. Rule 59A-8.0086(1)(d), Florida Administrative Code ,

provides:

The AHCA shall deny an initial or renewal

application for license, or impose a fine,

* * *

(d) if the applicant fails to provide at

least one service directly to patients for a

period of six consecutive months

10. In this case, the Petitioner bears the burden of proof

to establish the allegations of the administrative complaint. It

has failed to meet that burden. First, the administrative

complaint alleged that the Respondent had not “admitted” a

patient since March of 1994. There is no evidence that home

health care agencies “admit” patients. Secondly, that Respondent

may provide nursing and home health aide services to another home

health care agency as alleged in the administrative complaint

(paragraph 3a.) is not a violation of any rule or statute.

11. If Petitioner intended to allege that Respondent failed

to “provide at least one service directly to patients for a

period of six consecutive months,” such claim would be contrary

to the weight of the evidence presented in this case. In this

regard Petitioner did not review the Respondent’s records for the

six months preceding the survey, did not request documentation

from Respondent regarding services provided in that time frame,

and dismissed the record for a patient from November, 1995,

without further inquiry. Petitioner has failed to meet its

burden.

12. The unrefuted evidence presented by Respondent

establishes that the agency provided services as required by the

rule and would have made the records available to the Petitioner

at the time of the survey had a request for same been made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order dismissing the administrative complaint

against this Respondent.

DONE AND ENTERED this 11th day of April, 1997, in

Tallahassee, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of April, 1997.

COPIES FURNISHED:

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building III

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building III

Tallahassee, Florida 32308

Jean Claude Dugue, Esquire

Agency for Health Care Administration rd

8355 Northwest 53 Street

Miami, Florida 33166

Edward M. Lerner, Esquire

Agency for Health Care Administration

3810 Inverrary Boulevard, Suite 405-408

Lauderhill, Florida 33319

William M. Furlow

Katz, Kutter, Haigler, Alderman, Marks,

Bryant & Yon, P.A.

Post Office Box 1877

Tallahassee, Florida 32302-1877

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.