97-004098 Agency For Health Care Administration vs. Home Health Care Agency, Inc. Status: Closed Recommended Order on Wednesday, September 30, 1998.

Summary: Respondent failed to timely submit its license renewal application. Recommend administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 97-4098

)

HOME HEALTH CARE AGENCY, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

by video teleconference on May 28, 1998, at West Palm Beach,

Florida, before Errol H. Powell, a duly designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer A. Stewart, Esquire

Agency for Health Care Administration

1400 West Commercial Boulevard, Suite 110

Fort Lauderdale, Florida 33309

For Respondent: Steven M. Selz, Esquire

Selz & Muvdi Selz, P.A.

777 South Flagler Drive

8th Floor, West Tower

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 14, 1997, the Agency

for Health Care Administration (AHCA) charged Home Health Care

Agency, Inc., (Home Health Care) with violating Subsection

400.471(5), Florida Statutes, and Rule 59A-8.003(4), Florida

Administrative Code. AHCA alleges in the Administrative

Complaint that Home Health Care failed to timely file its

application for renewal of its home health agency license. By

petition dated August 4, 1997, Home Health Care disputed the

allegations of fact and requested a formal hearing. On

September 4, 1997, this matter was referred to the Division of

Administrative Hearings.

The parties filed stipulated facts. At hearing, the parties

agreed that AHCA's exhibits would be admitted into evidence; that

AHCA would not call any witnesses but would rely upon its

exhibits and the stipulated facts; and that Home Health Care

would present mitigating evidence. AHCA entered five exhibits

into evidence. Home Health Care presented the testimony of two

witnesses and entered five exhibits into evidence.

FINDINGS OF FACT

1. At all times material hereto, Home Health Care Agency,

Inc. (Home Health Care) was licensed as a home health agency by

the Agency for Health Care Administration (AHCA), having been

issued license number 20481-95 NC.

2. The license was valid for one year from the date of

issuance, which was January 1, 1996. The license expired on

December 31, 1996, and the license bore such expiration date.

3. On September 9, 1996, AHCA conducted an on-site

inspection of Home Health Care. No deficiencies were found.

4. On October 21, 1996, AHCA mailed a blank license renewal

application to Home Health Care’s administrator. Accompanying

the blank application was a letter also dated October 21, 1996,

and addressed to Home Health Care’s administrator. The letter

stated, among other things, that Home Health Care's license was

expiring on December 31, 1996; that 60 days prior to the

expiration date of the license, the application, all required

documentation, and the license fee must be received by or

postmarked to AHCA; and that a fine may be imposed for failure to

timely submit the documents.

5. October 31, 1996, was the deadline for Home Health Care

to timely submit the license renewal application to AHCA.

6. On December 3, 1996, Home Health Care’s completed

license renewal application was executed.

7. On December 3, 1996, via UPS Next Day Air, Home Health

Care shipped its completed license renewal application to AHCA.

8. The next day, on December 4, 1996, AHCA received Home

Health Care's completed license renewal application.

9. Home Health Care failed to timely submit its completed

license renewal application to AHCA, but submitted the license

renewal application 34 days late to AHCA.

10. On or about February 22, 1997, AHCA issued a renewal

license to Home Health Care for the 1997 licensure period.

11. Prior to the expiration date of the licenses for home

health agencies, as a courtesy, AHCA attempts to mail-out blank

license renewal applications to home health agencies. The timing

of the mailings varies and is dependent upon when AHCA’s computer

system is able to generate the letters to the home health

agencies, which accompany the blank license renewal applications.

AHCA does not consider its act of courtesy to relieve the home

health agency of the responsibility to submit the license renewal

application within the required time frames.

12. A home health agency which wishes to renew its license

can request a blank license renewal application from AHCA at any

time. AHCA receives numerous requests for blank renewal

applications, as well as other documents required to be submitted

by a home health agency. AHCA can fax, and has faxed, a blank

renewal application to a home health agency on the same day that

the application is requested.

13. In the previous year, 1995, AHCA mailed a blank license

renewal application for the 1996 licensure year to Home Health

Care's administrator. Accompanying the blank license renewal

application was a letter, dated June 22, 1995, to Home Health

Care's administrator, which contained the same information and

language as the letter of October 21, 1996, except for the

expiration date of the license and the name of the author of the

letter. Home Health Care’s administrator prepared and submitted

a completed license renewal application for the 1996 licensure

year.

14. The blank license renewal applications for 1995 (the

1996 licensure year) and 1996 (the 1997 licensure year) did not

change and were identical.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

16. Section 400.464, Florida Statutes (1995), provides in

pertinent part:

(1) Any home health agency must be licensed

by the Agency for Health Care Administration

to operate in this state. A license issued

to a home health agency, unless sooner

suspended or revoked, expires 1 year after

its date of issuance. . . .

17. Section 400.471, Florida Statutes (1995), provides in

pertinent part:

(5) Sixty days before the expiration date,

an application for renewal must be submitted

to the Agency for Health Care Administration

under oath on forms furnished by it . . . .

The home health agency must file with the

application satisfactory proof that it is in

compliance with this part and applicable

rules. The home health agency must submit

satisfactory proof of its financial ability

to comply with the requirements of this part.

18. Section 400.474, Florida Statutes (1995), provides in

pertinent part:

(1) The Agency for Health Care

Administration may . . . 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 for Health

Administration:

(a) Violation of this part or of applicable

rules.

19. Section 120.57, Florida Statutes, provides in pertinent

part:

(1) ADDITIONAL PROCEDURES APPLICABLE TO

HEARINGS INVOLVING DISPUTED ISSUES OF

MATERIAL FACT.-

* * *

(h) Findings of fact shall be based upon a

preponderance of the evidence, except in

penal or licensure disciplinary proceedings

or except as otherwise provided by statute

. . . .

20. In order for AHCA to levy a fine against Home Health

Care, clear and convincing evidence (proof greater than a mere

preponderance of the evidence) is required. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932, 935

(Fla. 1996) ("an administrative fine deprives the person fined of

substantial rights in property;" "[a] dministrative fines . . .

are generally punitive in nature;" "[b] ecause the imposition of

administrative fines . . . are penal in nature and implicate

significant property rights, the extension of the clear and

convincing evidence standard to justify the imposition of such a

fine is warranted"). See also Subsection 120.57(1)(h).

21. A licensee is presumed to have knowledge of the

requirements and the prohibitions of the law which governs the

licensee's license. Florida Board of Pharmacy v. Levin , 190 So.

2d 768, 770 (Fla. 1966).

22. Rule 59A-8.003(4), Florida Administrative Code,

provides in pertinent part:

(4) An application for renewal of license

must be submitted to AHCA at least 60 days

prior to the date of expiration of the

license. It is the responsibility of the

home health agency to submit an application

within the specified time frames whether or

not they receive separate notification from

AHCA of the impending expiration of the

license.

23. Also, Rule 59A-8.010, Florida Administrative Code,

provides in pertinent part:

(1) The administrator of the [home health] 1

agency shall:

* * *

(b) Be knowledgeable of the statute and

administrative rules of the AHCA and ensure

compliance with them by the agency.

(c) Be responsible for informing the

employees about the home health statute and

administrative rules and shall have copies

available for their reference.

4. Be responsible for the daily operation of

the agency.

(d) Be responsible for the maintenance and

submission of such reports and records as

required by the AHCA.

24. AHCA demonstrated that Home Health Care violated

Subsection 400.471(5), Florida Statutes (1995), and Rule 59A-

8.003(4), Florida Administrative Code.

25. Home Health Care is responsible for ensuring that its

license renewal application is timely submitted to AHCA. A

licensee can request a license renewal application from AHCA at

any time. Even though the renewal applications can only be

obtained from AHCA, AHCA is under no requirement or obligation to

mail, fax, or otherwise provide a blank license renewal

application to a licensee without a request from the licensee.

26. Home Health Care's argument that equitable estoppel is

applicable in this instance is not persuasive. Home Health Care

failed to demonstrate that the requirements of equitable estoppel

against a state agency are satisfied. Monroe County v.

Hemisphere Equity Realty, Inc. , 634 So. 2d 745, 747 (Fla. 3d DCA

1994). 2

27. Home Health Care's argument that it was not provided a

reasonable period of time in which to complete and submit its

renewal application is not persuasive.

28. Home Health Care's arguments regarding rule-making are

inappropriate in this proceeding, which is a Section 120.57(1)

proceeding, and are not addressed. Separate statutory provisions

and proceedings govern the validity of rules and rule-making.

29. Rule 59A-8.0086, Florida Administrative Code, provides

in pertinent part:

(4) Failure to file an application within

the time frames specified in this rule shall

result in an administrative fine in the

amount of $100 per day, each day constituting

a separate violation. In no event shall such

fines aggregate more than $5,000.

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:

1. Finding that Home Health Care Agency, Inc. violated

Subsection 400.471(5), Florida Statutes (1995), and Rule 59A-

8.003(4), Florida Administrative Code.

2. Imposing an administrative fine of $3,400.

DONE AND ENTERED this 30th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

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 30th day of September, 1998.

ENDNOTES

1/ Agency refers to home health agency throughout the cited

provisions of this Rule.

2/ Quoting with approval Calusa Golf, Inc. v. Dade County , 426

So. 2d 1165, 1167 (Fla. 3d DCA 1983), Monroe County held:

Equitable estoppel is to be applied against

the state only in rare instances and under

exceptional circumstances. To sustain a

claim of estoppel against the state or one of

its subdivisions, there must be (1) a

representation as to some material fact by

the party estopped to the party claiming

estoppel; (2) reliance upon the

representation by the party claiming

estoppel; and (3) a change in such party's

position caused by his reliance on the

representation to his detriment.

Furthermore, the act on which the aggrieved

party relied must be one on which he had a

right to rely.

Monroe County ,at 747, held also that the act must be some

positive act , citing Ogden v. State Department of Transportation ,

601 So. 2d 1300, 1302 (Fla. 3d DCA 1992) (quoting Greenhut

Construction Company v. Henry A. Knott, Inc. , 247 So. 2d 517, 524

(Fla. 1st DCA 1971)).

COPIES FURNISHED:

Jennifer Steward, Esquire

Agency for Health Care Administration

1400 West Commercial Boulevard

Suite 110

Fort Lauderdale, Florida 33309

Steven M. Selz, Esquire

Selz & Muvdi Selz, P.A.

777 South Flagler Drive

8th Floor, West Tower

West Palm Beach, Florida 33401

Paul J. Martin, General Counsel

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

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.