STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case Nos, 2011005046 2011005313 HILCREST RESIDENTIAL ALF, INC. d/b/a 2011005672 HILCREST RETIREMENT RESIDENCE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter “Petitioner” or “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against HILCREST RESIDENTIAL ALF, INC. ‘d/b/a HILCREST RETIREMENT RESIDENCE (hereinafter “Respondent”), pursuant to sections 120.569 and 120.57, Florida Statutes (2010), and alleges: NATURE OF THE ACTION This is an action to REVOKE Respondent’s license and impose an administrative fine in the amount of Twenty-Nine Thousand and No/100 ($29,000.00) Dollars and a survey fee in the amount of Five Hundred and No/100 ($500.00) Dollars based upon two (2) cited State Class I deficiency violations and five (5) cited State Class II deficiency violations pursuant to sections 429.19(2)(a), 429.19(2)(b), 429.19(7), 408.815(1), 429.14(1)(a), 429.14(1\(b), 429.14(1)(e)(1), 429.14(1)(e)(2), 429.14(1)(h), 429.14(1)(k), and 429.14(4), for a total assessment of Twenty- Nine Thousand Five Hundred and No/100 ($29,500.00) Dollars. Filed July 5, 2011 4:39 PM Division of Administrative Hearings JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to sections 20.42 and 120.60, the Health Care Licensing Procedures Act! and the Assisted Living Facilities Act.2 2. Venue lies pursuant to chapter 28-106 of the Florida Administrative Code? PARTIES 3, The Agency is the regulatory authority responsible for licensure of assisted living facilities (hereafter “ALF”)* and enforcement of all applicable regulations, state statutes and rules governing ALFs pursuant to the Health Care Licensing Procedures Act, the Assisted Living Facilities Act®, and chapter 58A-5 of the Florida Administrative Code. 4. Respondent operates a 32-bed ALF located at 220 Sth Ave. N., St. Petersburg, Florida 33701, and at all material times hereto was licensed as an ALF, whose license number was 5389; Respondent’s license expired on 05/17/11.’ At all material times hereto, Respondent also held "Ch, 408, Fla. Stat., Part II. ? Ch, 429, Fla, Stat., Part I. 3 Fla, Admin, Code R. 28-106.207 (2010). 4 «Assisted living facility’ means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429,02(5), Fla. Stat. (2010). “‘Personal services’ means direct physical assistance with or supervision of the activities of daily living and the self-administration of medication and other similar services...” Id. § 429.02(16). “‘Supervision’ means reminding residents to engage in activities of daily living and the self-administration of medication, and, when necessary, observing or providing verbal cuing to residents while they perform these activities.” Id. § 429.02(23). “Activities of daily living” (hereafter “ADLs”) means, “.,.functions and tasks for self-care, including ambulation, bathing, dressing, eating, grooming, and toileting, and other similar tasks.” Id. § 429.02(1). “Assistance with activities of daily living” means individual assistance with ambulation, bathing, dressing, eating, grooming and toileting, as defined by Rule 58A-5.0131(4), incorporated herein by this reference, and more specifically described therein, “Resident? means a person 18 years of age or older, residing in and receiving care from a facility.” Id. § 429.02(19). “Staff mearis any person employed by a facility; or contracting with a facility to provide direct or indirect services to residents; or employees of firms under contract to the facility to provide direct or indirect services to residents when present in the facility. The term includes volunteers performing any service which counts toward meeting any staffing requirement of this rule chapter.” Fla. Admin. Code R. 58A-5.0131(34). ° Ch, 408, Part II. ° Ch. 429, Part I. 7 The Agency denied Respondent’s application for license renewal on 05/31/11. Page 2 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 licensure for limited mental health (hereafter “LMH”).® Respondent obtained LMH licensure from the Agency, and was at all material times hereto licensed to perform LMH at Respondent’s facility and thus subject to all applicable LMH rules, laws and regulations including but not limited to Rules S8A-5.029 and 58A-5.024 of the Florida Administrative Code. At all material times hereto, Respondent also held licensure for extended congregate care (hereafter “ECC”).? ‘Respondent obtained ECC licensure from the Agency, and was at all material times hereto licensed to perform ECC at Respondent’s facility and thus subject to all applicable ECC rules, laws and regulations including but not limited to Rules S8A-5.030 and 58A-5.024 of the Florida Administrative Code. . . 5. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT 1 (A1001) 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 7. That pursuant to Florida law, “[a]n assisted living facility that was initially licensed prior to the effective date of this rule must comply with the rule or building code in effect at the time of initial licensure....”!° * “Any facility intending to admit three or more mental health residents must obtain a limited mental health license from the Agency in accordance with Rule 58A-5.014, F.A.C., and Section 429.075, F.S., prior to accepting the third mental health resident.” Fla. Admin. Code R. 58A-5.029(1)(a). ° « Byxtended congtegate care’ means acts beyond those authorized in subsection (16) that may be performed pursuant to part I of chapter 464 by persons licensed thereunder while carrying out their professional duties, and other supportive services which may be specified by rule. The purpose of such services is to enable residents to age in place in a residential environment despite mental or physical limitations that might otherwise disqualify them from residency in a facility licensed under this part.” § 429.02(11), Fla. Stat. (2010). ‘Fla, Admin, Code R. 58A-5.023(2)(a). Page 3 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/201 1005672 8. That pursuant to Florida law, Rule 58A-5.023(1)(a) of the Florida Administrative Code (2006) mandated, inter alia, that general requirements for all ALFs included that “[t]he ALF shall be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." 9, That pursuant to Florida law, Rule 58A-5.023(1)(b) of the Florida Administrative Code (2010), all ALFs must “provide a safe living environment pursuant to Section 429.28(1)(a), BS"? 10. That pursuant to Florida law, an ALF must comply with the Resident Bill of Rights, which mandates, inter alia, the following: (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident - of a facility shall have the right to: (a) Live in a safe and decent living environment, free from abuse and neglect. 11. That Respondent’s facility was first licensed as an ALF in the State of Florida on 11/04/09. 12. That since Respondent was first licensed as an ALF in the State of Florida prior to 04/15/10, Respondent was required to comply with Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) at all material times hereto. 13. That on or about 04/28/11, the Agency concluded a Complaint Investigation Survey (CCR No. 2011004368) of the Respondent’s facility. " The effective date of Rule 58A-5,023(1)(a) of the Florida Administrative Code (2006) was 07/30/06, while the effective date of the current version of said Rule was 04/15/10. 2 Id. 1. 58A-5.023(3)(a)1. 8 § 429.28(1)\(a), Fla. Stat. Page 4 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/201 10053 13/201 1005672 14. That based upon observation, record review and interviews, Respondent failed to maintain and provide a safe and decent living environment, free from abuse and neglect with respect to six (6) of thirteen (13) residents sampled in a thirty-two (32) bed capacity facility, specifically Resident No. 2, Resident No. 7, Resident No. 9, Resident No. 10, Resident No. 11, and Resident No. 13 (hereafter “R2”, “R7”, “R9”, “R10”, “R11”, and “R13”) concerning a bed bug infestation and a fire hazard (physical environment) placing all Respondent’s residents at risk. 15. That with respect to the first example of such deficiency violation, the Agency states as follows: a. As a result of a complaint investigation conducted 04/28/11, an unrelated concern relating to bed bugs was discovered. b. “Bedbugs (sic) are small, oval, brownish insects that live on the blood of animals or humans,””"4 ¢. Interviews with Respondent’s facility staff and residents revealed Respondent’s facility was currently experiencing an increasingly serious bed bug infestation. d. Although documentation established Respondent's staff obtained estimates for extermination services to eradicate the bed bug infestation, Respondent failed to retain the services of any exterminator due to the Six Hundred and No/100 ($600.00) Dollar per room expense. e. However, Respondent’s Administrator and Assistant Administrator admitted they never hired a professional pest service. Rather, Respondent claims to have attempted to "4 See hitp://www.webmd.com/skin-problems-and-treatments/guide/bedbugs-infestation (last visited May 27, 2011). Page 5 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 1005313/2011005672 alleviate the bed bug infestation internally (i.e. through a do-it-yourself approach), which did not prove successful. f, Respondent’s Assistant Administrator initiated a log with names of residents who complained they had bed bugs, those with more severe cases were being treated first; however, such attempts were neither organized, nor systematic. g. Accordingly, the lack of any effectively organized or systematic extermination methodology resulted in an entirely ineffective resolution to Respondent’s infestation. h. Numerous residents residing at Respondent’s facility suffered from severe mental health problems, often necessitating staff to prompt and cue them to acquire their cooperation to bathe and/or change clothes. i. Numerous residents also collect voluminous amounts of various and miscellaneous items, adding clutter to their respective rooms, further promoting the spread of bed bugs and increasing the difficulty of remediation. j. Respondent’s Administrator showed an Agency surveyor an online bank statement where, according to Respondent’s Administrator, a Seventy-Five and No/100 ($75.00) Dollar purchase was made for a chemical formula, purportedly recommended by one (1) of the pest companies, k. While the Agency surveyors and Respondent’s Administrator were present, Respondent’s Assistant Administrator complied with a request to contact the Health Department for assistance, and it was agreed the Health Department would visit Respondent's facility the following week to provide treatment information and positively identify the bed bugs. 'S For example, various bedrooms had clean linens next to dirty linens, which in turn were next to untreated mattresses, thus exacerbating such infestation. Page 6 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 I. The Agency surveyor, at that time, also spoke to the environmental specialist from the Pinellas Co. Department of Health and briefed him concerning Respondent’s bed bug infestation. m. Respondent’s residents were interviewed, and four (4) of five (5) complained about currently being bitten by bed bugs. n. The following interviews reveal the problem was ongoing and unabated during’ the Complaint Investigation Survey (CCR No. 2011004368) on 04/28/11: i, Resident No. 5 (in Room 310): revealed Respondent’s facility was, “trying to get rid of the bed bugs.” ii, _ Resident No. 7 (in Room 209): at 12:30 PM, when asked if he has bed bugs in his room he stated, “Yeah, I have bites on my arms and legs.” He said he is given lotion to put on at night for the bites. Bloodstains'® were seen on his sheets and also on his roommate’s sheets. His roommate, Resident No. 11, whose blanket and sheets were dirty and who had bites on his arms, admitted during an interview that he also had bed bugs and was also given lotion at night for the bites. iii, Resident No. 9 (in Room 310): at 1:05 PM was observed lying on the floor of the porch in front of Respondent’s facility. Red bite marks and scabs were observed on her arms, legs, and exposed back. When asked about what appeared to be bite marks, she responded by saying “It hurts.” Her hair and clothing appeared dirty. She said she still had bed bugs and repeated again, “It hurts.” Observation was made of this '® According to WebMD.com, one (1) of the several signs of bed bug infestation is “blood stains on your sheets or pillowcases.” See http://www.webmd.com/skin-problems-and-treatments/guide/bedbugs-infestation (last visited May 27, 2011). Page 7 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 oO. p. i. resident’s room with resident present. There were small specs of blood covering her sheets, and when the resident pulled her sheets away exposing the mattress, it was very dirty and stained. Resident No. 10 (in Room 305): revealed he had a rash covering his forearms. Resident No. 13, per confidential interview at 1:00pm revealed the resident was “bit all night.” S/he had to get up and get into the shower due to the itching. S/he stated s/he had bites all over her/his legs. Observation was made of scabs on his/her arms, S/he ‘said s/he can’t sleep at night because of the bed bugs. Observation of the resident bedrooms during the survey revealed many beds were made, but linens looked stained, linens were not clean, and piles of clean clothes were next to dirty linens. Respondent’s. Assistant Administrator stated linens were changed weekly, and that residents were responsible for bringing the dirty linens and laundry downstairs where it was washed by facility staff. Additionally, Respondent’s Assistant Administrator stated she had recently taken several bags full of linens to a commercial washer to rid them of bed bugs. The Agency surveyor also observed the following: Room No, 209 (occupied by two (2) residents): contained two beds in which both bed linens were observed to be dirty, stained, and had blood stains; Room No. 304 (occupied by two (2) residents): had no sheets on either bed; Room No. 307 (occupied by two (2) residents): had dirty shirts; Room No. 308 (occupied by two (2) residents): did not have sheets on one (1) bed; and Page 8 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 vy. Room No. 310 (occupied by two (2) residents): contained two beds in which both bed linens were observed to be dirty. Sheets on one (1) of the beds had excessive blood stains present. By not keeping bedrooms including mattresses and bed linens clean and sanitary, Respondent’s facility promotes infestations such as bed bugs. 16. That with respect to the 2nd example of such deficiency violation, the Agency states as follows: a. Observation of Resident No. 2’s bedroom (Room No. 309) on 04/28/11 at 10:00 AM revealed the following: b. A window AC plugged in the receptacle at the sink. There was an outlet under the window that did not have anything plugged into it. The AC cord was draped across in front of the bathroom door, stretching to the sink area where it was plugged in. There was an outlet under the window where the air conditioner was installed. The resident, who is deaf, was present in the room. When asked why the plug was not used closer to the air conditioner, he communication in writing that there had been sparks at that outlet under the window. He further stated he had reported it to the maintenance man. There was no smoke detector observed in the room, Several rooms had the smoke detector tops (part that holds the battery) removed. The smoke detectors were located above the ceiling fans. c. When Respondent’s Administrator and Assistant Administrator were asked about this, they said they claimed to have no knowledge of any sparks coming from the resident’s plug (in Room No. 309), but admitted to knowing the resident in the next room tripped the electric breaker by overloading the electric socket. d. There was evidence of an electric bill receipt, dated 9/10 for non-specific repairs. Page 9 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 e. Further observation revealed Room No. 208 had no light bulb above the sink in the bedroom. Maintenance confirmed that the light fixture did not work; he put a light bulb in the socket, but it did not work. 17. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations and cited Respondent for a State Class II deficiency violation. 18. That the above facts show, inter alia, that Respondent was not located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents and/or Respondent failed to provide a safe and decent living environment, free from abuse and neglect, contrary to law. 19. That the same constitutes grounds for a State Class II deficiency violation as defined by law. . WHEREFORE, the Agency intends to impose an administrative fine in the amount of One Thousand and No/100 ($1,000.00) Dollars against Respondent, an ALF in the State of F lorida, pursuant to section 429.19(2)(b). COUNT II (A1002) 20. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 21. — That pursuant to Florida law, “[a]n assisted living facility that was initially licensed prior to the effective date of this rule must comply with the rule or building code in effect at the time Page 10 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 of initial licensure....”!7 22, That pursuant to Florida law, Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) mandated that the general requirements for an ALF, inter alia, specified the following: The facility’s physical structure, including the interior and exterior walls, floors, roof and ceilings shall be structurally sound and in good repair. Peeling paint or wallpaper, missing ceiling or floor tiles, or torn carpeting shall be repaired or replaced..:. All furniture and furnishings shal! be clean, functional, free-of-odors, and in good repair. Appliances may be disabled for safety reasons provided they are functionally available when needed.! 23, That pursuant to Florida law, Rule 58A-5.023(1)(b) of the Florida Administrative Code (2010), all ALFs must not only be maintained free of hazards, but also must ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order." 24. That Respondent’s facility was first licensed as an ALF in the State of Florida on 11/04/09. 25. That since Respondent was first licensed as an ALF in the State of Florida prior to 04/15/10, Respondent was required to comply with Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) at all material times hereto. 26. That on or about 04/28/11, the Agency concluded a Complaint Investigation Survey (CCR No. 2011004368) of the Respondent’s facility, 27. That based upon interview and record review, Respondent failed to ensure that twelve (12) of twenty-nine (29) resident spaces, specifically Room No. 101, Room No. 102, Room No. 103, Room No. 204, Room No. 207, Room No. 208, Room No. 209, Room No. 210, Room No. "Fla, Admin. Code R. 58A-5.023(2)(a). '® The effective date of Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) was 07/30/06, while the effective date of the current version of said Rule was 04/15/10. ” Id. r, 58A-5.023(3)(a)2 - 3. Page 11 of 73. AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 302, Room No. 207, Room No. 208, and Room No. 310), including resident rooms and bathrooms, were maintained, sanitary, maintained in good working order and free of hazards. 28. That specifically, core concerns noted were related to dust, damage, mold, and mildew on resident beds, walls, and ceilings of Respondent’s facility. 29. — That on 04/28/11, between approximately 9:30 AM and 2:00 PM, a tour of Respondent’s facility revealed the following observations: a. Room No. 101: Respondent’s Administrator claimed this room was unoccupied and ready for the next occupant. i. However, observation of the room revealed there were toiletries on the dresser, a plastic bag in one (1) drawer, and toiletries and linens in another drawer; ii. A smoke detector was sitting on the desk; iii, | No smoke detector was on the ceiling; iv. The desk drawer had many items in its drawers; v. A towel was spread out under the sink in the bedroom; vi. A used wash rag was draped over the sink in the bedroom; vii. An air conditioner (window unit) was sitting on the floor near the window at 9:45 AM; and viii. Respondent’s Administrator said the AC needed to be fixed, and there was peeling paint on the ceiling. b. Room No. 102: had a hole in the wall around the bathroom bathtub faucet; c. Room No. 103: the light above the sink was not operable; d. Room No, 104: the light above the sink was not operable; e. Room No. 204: had several spots of mold or mildew on the bathroom ceiling; Page 12 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 30. Room No. 207: had two (2) twin beds in room with very dirty, stained mattresses; - Room No. 208: had extensive mold or mildew covering the bathroom ceiling. The ceiling fan in the resident’s room was covered with dirt and dust. The light bulb was missing from the socket above the sink in the bedroom. The maintenance worker was asked to provide a light bulb to check the socket, This was done. The light did not work; . Room No, 209: had cracks in the ceiling and appeared to be falling inward; Room No. 210: the plaster on the wall in room appeared warped and cracked. The plaster was missing from the bathroom ceiling creating a spot approximately two (2) feet by one (1) foot wide. The plaster on the bathroom wall near the bathtub appeared bubbled and rotten; Room No. 302: had peeling paint behind the bed; » Room No. 304: had two (2) beds in room covered with mildew with excessive mildew or mold on the mattress at the head of the bed and on the wall.behind the bed. Mold was present across the ceiling where the wall meets the ceiling; and Room No. 310: one (1) of two (2) beds was observed to be very stained and dirty. That Respondent’s Administrator, who was present during the inspection of Room No. 207, stated she would wash the dirty and stained mattresses. 31. That Respondent’s Administrative Assistant was present during the inspection of the resident rooms which included three (3) floors. 32. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations and cited Respondent for a State Class II deficiency violation. Page 13 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 33. That the above reflect, infer alia, that Respondent’s physical structure, including the interior and exterior walls, floors, roof and ceilings was not structurally sound and in good repair and/or alternatively, Respondent’s physical structure had peeling paint or wallpaper, missing ceiling or floor tiles, and/or alternatively, not all of Respondent’s furniture and furnishings were clean, functional, free-of-odors, and in good repair and/or alternatively, Respondent’s facility was not maintained free of hazards and that all existing architectural, mechanical, electrical and structural systems and appurtenances were maintained in good working order, contrary to law. 34. That the same constitutes grounds for a State Class II deficiency violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of One Thousand and No/100 ($1,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429,19(2)(b). . COUNT II (A1004) 35. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 36, That pursuant to Florida law, “[a]n assisted living facility that was initially licensed prior to the effective date of this rule must comply with the rule or building code in effect at the time of initial licensure....””° 37. That pursuant to Florida law, general requirements for an ALF under Rule 58A- 5.023(1)(b) of the Florida Administrative Code (2006) mandated that “[w]indows, doors, plumbing, and appliances shall be functional and in good working order.”! 2 Id. v. 58A-5.023(2)(a). ?! The effective date of Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) was 07/30/06; while the Page 14 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 ‘38. That pursuant to Florida law, Rule 58A-5.023(1)(b) of the Florida Administrative Code (2010), all ALFs must ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order.” 39. That Respondent’s facility was first licensed as an ALF in the State of Florida on 11/04/09. 40. That since Respondent was first licensed as an ALF in the State of Florida prior to 04/15/10, Respondent was required to comply with Rule 58A-5.023(1)(b) of the Florida Administrative Code (2006) at all material times hereto. 41, That on or about 04/28/11, the Agency concluded a Complaint Investigation Survey (CCR No. 2011004368) of the Respondent’s facility, 42, That based upon interview and record review, Respondent failed to ensure that Respondent’s lights, smoke detectors, outlets, and plumbing fixtures were operating properly and safely in eleven (11) of twenty-nine (29) bedrooms observed, specifically Room No. 101, Room No. 103, Room 104, Room No. 207, Room No. 208, Room No. 209, Room No. 210, Room No. 305, Room No. 307, Room No. 309, and Room No. 310). 43. That accordingly, Respondent failed to: a) Ensure that Respondent’s windows, doors, plumbing, and appliances shall be functional and in good working order; and/or b) Ensure that all of Respondent’s existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order, effective date of the current version of said Rule was 04/15/10. ? Id r, 58A-5.023(3)(a)3. Page 15 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/20110053 13/201 1005672 44, That upon completion of an inspection of all resident rooms on 04/28/11 between approximately 9:30 AM and 2:00 PM, observations revealed the following: a. Lights above the sinks in residents’ rooms, specifically Room No. 103, Room No. 104, Room No. 208, Room No, 209, and Room No. 305, were not working; b. An interview with Respondent's maintenance personnel confirmed the light fixture in Room No. 208 did not work; ¢. An interview was conducted with one (1) of Respondent’s residents, who stated “the electricity is shot”; d. The cover on the electrical outlet under the window in Room No. 210 was cracked. The air conditioner was plugged into the outlet; e, Inspection of Room No. 309 revealed the electrical cord from a window air conditioner was plugged into an outlet above the sink in the resident’s room, and: i. The position of the cord extended across the entrance to the resident’s bathroom; ii. There was an electrical outlet beneath the air conditioner not in use; iii, The resident is deaf and was interviewed with the use of paper for writing; iv. The Administrative Assistant was present; v. The resident conveyed that the outlet under the air conditioner is not used because sparks have come from this outlet; vi. He said that he told the maintenance man about this; vii. An interview was conducted with Respondent’s Administrator and the Assistant Administrator, who admitted to being aware of the resident’s concern, but that maintenance had told them that he was unaware of the situation and had not been informed; Page 16 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/20110053 13/201 1005672 45. f. There were no smoke detectors installed in Room No. 101, Room No. 207, and Room No. 309; . There was a hole surrounding the bathtub faucet in Room No. 102 and the cold water faucet in Room No. 307 was loose and spun completely around; and . Respondent’s Administrative Assistant was present during the observation of the resident’s rooms. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations and cited Respondent for a State Class II deficiency violation. 46. That the above reflect, inter alia, that Respondent’s windows, doors, plumbing, and/or appliances were not functional and/or in good working order and/or alternatively, not all of Respondent’s appliances were functionally available when needed, contrary to law. 47. 48. law. That the above reflect, inter alia, Respondent’s failure to ensure that Respondent: a) Ensure that Respondent’s windows, doors, plumbing, and appliances shall be functional and in good working order; and/or b) Ensure that all of Respondent’s existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order, contrary to law. That the same constitutes grounds for a State Class II deficiency violation as defined by Page 17 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 WHEREFORE, the Agency intends to impose an administrative fine in the amount of One Thousand and No/100 ($1,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429.19(2)(b). COUNT IV (A1024 49. - The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 50. That pursuant to Florida law, Rule 58A-5.023(3)(b) of the Florida Administrative Code (2010), mandates the following: Pursuant to Section 429.27, F.S., residents shall be given the option of using their own belongings as space permits. When the facility supplies the furnishings, each resident bedroom or sleeping area must have at least the following furnishings: 1. A clean, comfortable bed with a mattress no less than 36 inches wide and 72 inches long, with the top surface of the mattress a comfortable height to ensure easy access by the resident; 2, A closet or wardrobe space for hanging clothes; 3. A dresser, chest or other furniture designed for storage of personal effects; 4. A table, bedside lamp or floor lamp, and waste basket; and 5. A comfortable chair, if requested.” 51. That on or about 04/28/11, the Agency concluded a Complaint Investigation Survey (CCR No. 2011004368) of the Respondent’s facility, 52. That based upon observation, Respondent failed to provide a clean, sanitary and ‘comfortable bed and/or adequate furniture in good condition for storing clothes. 53. That on 04/28/11 , inspection and observation of Respondent’s facility and resident rooms revealed the following: 2 Id. v. S8A-5,023(3)(a)3. Page 18 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 . It was discovered that several beds were dirty, stained, and contained bed bugs; . Respondent’s Administrator was present during the inspection of Room No. 207 where it was observed that two (2) twin beds were heavily stained and dirty. Respondent’s Administrator stated she would wash the mattresses; . Inspection and interview with the resident of Room No. 208 revealed that one (1) of the beds was broken, At approximately 10:35 AM, Respondent’s Assistant Administrator stated the resident’s mattress pad had been removed and taken outside to be cleaned due - to bed bugs; . An interview was conducted with the resident in Room No. 209. When asked if he has bed bugs in his room he stated, “Yeah, I have bites on my arms and legs.” Blood spots were observed on his sheets. The roommate confirmed that he also had bed bugs. Small red marks were observed on his arms. The roommates blanket and sheets were stained and dirty. There was a drawer missing from one (1) of the dressers; In Room No. 304, two (2) twin beds were observed without sheets. The mattresses were covered with mildew stains, one (1) of the two (2) dressers in the room did not have handles on the drawers and could not opened for use; An interview was conducted with the resident in Room No. 307, who stated he has bed bugs and is bitten all night, having to get out of bed and take a shower to stop the itching. He is not able to sleep at night due to the constant itching and bites. He also states that he has bites all over his legs. Scabs and red spots were observed on his arms. The resident’s sheets were dirty; » Room 308 is occupied by two residents. one (1) of the beds did not have sheets exposing the stained and dirty mattress; Page 19 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 h. The resident residing in Room No. 310 was observed lying on the floor of the outdoor porch. i. She had excessive red spots resembling bite marks on her arms, legs, and exposed back; When asked about what appeared to be bite marks she responded by saying, “It hurts”; She said she has bed bugs in her bed, and repeated again, “It hurts”; The resident then proceeded to her room, where her sheets were excessively marked with small blood spots; and Upon the resident being asked to pull back her sheets, her compliance revealed her mattress was replete with dirt and stains; and i. The Administrative Assistant was present for the inspection of the resident rooms on all three floors. He was not present during all interviews with residents. 54. That during an inspection of all resident rooms on 04/28/1 1, it was observed that the bed linen was either unsanitary or missing from the resident’s respective beds. Specifically, observations included the following: a. Room No. 207: there were two (2) twin beds present, neither of which had sheets; b. Room No, 209: contained two (2) beds, both of which were observed to be dirty and stained (including blood stains); ¢c. Room No. 304: there were no sheets on the two (2) beds in this room; d. Room No. 307: the sheets on the bed in this room were observed to be dirty. e. Room No. 308: did not have sheets on the bed. Page 20 of 73 AGENCY VS. HiLCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/20 110053 13/2011005672 f. Room No. 310: contained two (2) beds, each of which had dirty bed linens. Sheets on one (1) of the beds had excessive blood stains present. . g. An interview with Respondent’s Assistant Administrator during the investigation revealed: i. Residents were to bring their dirty linens downstairs to staff on a weekly basis to be laundered; and ii. She acknowledged that residents did not always bring their laundry downstairs weekly. h. Observation of so much dirty linen on the beds revealed the staff were not changing resident linens weekly, or as often as needed. 55. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations and cited Respondent for a State Class IT deficiency violation. 56. That the above reflect, inter alia, Respondent’s failure to provide a clean, sanitary and comfortable bed and/or adequate furniture in good condition for storing clothes, contrary to law. 57. That the Agency provided Respondent with a mandatory correction date of 06/02/11. 58. That the same constitutes grounds for a State Class II deficiency violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of One Thousand and No/100 ($1,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429,19(2)(b). Page 21 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 COUNT V (A718) 59. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 60. That pursuant to Florida law, an ALF shall comply with the Resident’s Bill of Rights which mandates, inter alia, the following: No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident ofa facility shall have the right to: (a) Live in a safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (c) Retain and use his or her own clothes and other personal property in his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents, (d) Unrestricted private communication, including. receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 AM and 9 PM at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (e) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community. (f) Manage his or her financial affairs unless the resident or, if applicable, the resident's representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in s. 429,27, (g) Share a room with his or her spouse if both are residents of the facility. (h) Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather, (i) Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident. Page 22 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/2011005313/201 1005672 (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. (k) At least 45 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days' notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. (I) Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal, Each facility shall establish a grievance procedure to facilitate the residents' exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. 61. — That according to IdentifyUs, LLC, a company founded by Richard J. Pollack, Ph Da public health entomologist and researcher at the Harvard School of Public Health, a multifaceted approach to bed bug remediation is required: Managing bed bugs often requires a multi-faceted approach that generally includes cleaning, room modifications, and insecticidal treatments to the residence. Search for signs of bed bugs - Carefully inspect bed frames, mattresses, and other furniture for signs of bed bugs and their eggs. Although dead bed bugs’ cast bug skins and blood spots may indicate an infestation that occurred previously, they do not confirm that an infestation is still active. Search for , live (crawling) bugs and ensure they are bed bugs before considering treating. Reduce clutter - This will limit hiding places for bed bugs, and reduces the 74 § 429.28(1), Fla. Stat. *5 «Dr Pollack has earned degrees in Entomology (B.S.) from Cornell University, Medical Parasitology (M.Sc.) from the London School of Hygiene and Tropical Medicine, and Parasitology (Ph.D.) from the University of Pennsylvania. He has served as a public health entomologist at the Harvard School of Public Health for 22 years where he has engaged in research and offered instruction on diverse pest species both locally and internationally, He is now a research associate professor in the Department of Biology of Boston University.” See https://identify.us.com/who-we-are.html (last visited May 27, 2011). Page 23 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 number of surfaces that may need to be treated... Thoroughly clean the infested rooms as well as others in the residence. Scrub infested surfaces with a stiff brush to dislodge eggs, and use a powerful vacuum to remove bed bugs from cracks and crevices. Dismantling bed frames will expose additional bug hiding sites. Remove drawers from desks and dressers and turn furniture over, if possible, to inspect and clean all hiding spots. Mattresses and box springs can be permanently encased within special mattress bags. Once they are installed, inspect the bags to ensure they are undamaged; if any holes or tears are found, seal these completely with permanent tape. Any bugs trapped within these sealed bags will eventually die. Such encasements are less expensive than new mattresses and will make it unnecessary to treat the mattress with pesticide. Encasing mattresses, however, will not likely eliminate an infestation; some bed bugs are likely to lurk elsewhere in the residence. To prevent bed bugs from crawling onto a bed, pull the bed frame away from the wall, tuck in bed linens so they won’t contact the floor, and create a barrier to prevent bed bugs from accessing or climbing upon the bed legs. The legs can be wrapped with adhesive tape (sticky side out), or they may be placed in dishes, . consider caulking and sealing holes where pipés and wires penetrate walls and floor, and filling cracks around baseboards and cove moldings to further reduce harborages... +. We suggest you contact a licensed pest control operator who is knowledgeable and experienced in managing bed bug infestations. Ask the pest control company for references, and ask at least a few of their customers about their experiences before you agree to any contract... Insist upon a written integrated pest management (IPM) plan from the pest control operator. This plan should: detail the methods and insecticides to be used by the pest control operator; describe the efforts expected by you, the building manager and tenants; include copies of the labels and MSDS (material safety data sheets) for cach product to be used; indicate how quickly and effectively the problem will be abated; and describe what kind of warranty, if any, that the pest .control operator provides... Because bed bugs and other pests may spread through cracks and holes in the walls, ceilings and floors, it is wise to inspect adjoining apartments on the same floor as well as those directly above and below. Those found infested should be managed, accordingly.” Do not apply pesticides unless you fully understand what you are applying and the risks involved. You may be legally liable if you misapply a + 26 See https://identify.us.com/bed-bugs/BedBug-F AQS/manage-bed-bug-problems. html (last visited May 27, 2011) (emphasis added). Page 24 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 1005313/2011005672 pesticide, or apply it without a license to the property of another (including common spaces in apartment buildings). Generally, landlords, owners and building managers cannot legally apply pesticides. They should, instead, hire a licensed pest control operator to confirm the infestation and to develop an integrated pest management plan. Do not dispose of furniture that is useful. Infested furniture can be cleaned and treated. Placing infested furniture (particularly mattresses) into common areas or on the street may simply help spread bed bugs to the homes of other people. Infested furniture intended for disposal should be defaced to make it less attractive to other people. Officials in some municipalities affix to potentially infested furniture a label to warn of bed bugs. To reduce opportunities of infested furniture re-entering their building, building managers should ensure that any disposed furniture is locked within a dumpster or immediately carted away to a landfill or waste facility.”’ 62. That according to WebMD.com, recommended treatments and extermination procedures to remediate bed bugs include the following: Getting rid of bedbugs (sic) begins with cleaning up the places where bedbugs (sic) live. This should include the following: * Clean bedding, linens, curtains, and clothing in hot water and dry them on the highest dryer setting. Place stuffed animals, shoes, and other items that can't be washed in the dryer and run on high for 30 minutes. * Use a stiff brush to scrub mattress seams to remove bedbugs (sic) and their eggs before vacuuming. “ Vacuum your bed and surrounding area frequently. After vacuuming, immediately place the vacuum cleaner bag in a plastic bag and place in garbage can outdoors. * Encase mattress and box springs with a tightly woven, zippered cover to keep bedbugs (sic) from entering or escaping. Bedbugs (sic) may live up to a year without feeding, so keep the cover on your mattress for at least a year to make sure all bugs in the mattress are dead. * Repair cracks in plaster and glue down peeling wallpaper to get rid of places bedbugs (sic) can hide. “ Get rid of clutter around the bed. If your mattress is infested, you may want to get rid of it and get a new one, but take care to rid the rest of your home of bedbugs (sic) or they will infest your new mattress, *” See https://identify.us.com/bed-bugs/BedBug-F AQS/bed-bug-should-not-do.html (last visited May 27, 2011) (emphasis added). Page 25 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/2011005313/2011005672 While cleaning up infested areas will be helpful in controlling bedbugs (sic), getting rid of them usually requires chemical treatments. Because treating your bed and bedroom with insecticides can be harmful, it is important to use products that can be used safely in bedrooms. Do not treat mattresses and bedding unless the label specifically says you can use them on bedding. Generally it is safest and most effective to hire an experienced pest control professional for bedbug (sic) extermination. 63. That with respect to the recommended bed bug remediation procedures contained in the two (2) preceding paragraphs, said procedures shall hereafter be referred to as “Basic Remediation Efforts”. 64, — That on or about 05/12/11, the Agency concluded a Monitoring Visit of the Respondent’s facility. 65. That based upon observations, interviews and record reviews, Respondent failed to provide a safe and decent environment to residents residing at Respondent’s facility due to the widespread, on-going, unabated, and severe infestation of bed bugs and German roaches within resident rooms, common areas, lobby, and kitchen of Respondent’s facility and/or alternatively and more generally, Respondent failed to ensure Respondent’s residents were safe from abuse and neglect. 66. That record review of an Agency report, conducted on 04/28/11, identified a deficiency, A1001, related to Respondent’s failure to maintain and provide a safe and decent living environment, free from abuse and neglect concerning a bed bug infestation and a fire hazard (physical environment) placing all Respondent’s residents at risk. 67. That further review of the document: “revealed the facility was currently addressing a bed bug infestation, but the problem was getting worse not better, There was documentation of 8 See http://www.webmd.com/skin-problems-and-treatments/guide/bedbugs-infestation?page=2 (last visited May 27, 2011) (emphasis added). Page 26 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 staff obtaining bed bug extermination service estimates but because of the expense of $600.00 per room, the facility Administrator and Assistant Administrator stated they had not hired a professional pest service and opted to fix the problem themselves. A log was initiated by the Assistant Administrator with the names of residents who had complained about having bed bugs and those with more severe cases were being treated first. There was not an organized, systemic approach to the problem; bedrooms had clean linen next to dirty linen next to mattresses that had not been treated promoting a continuation of the cycle,” 68. That in the deficiencies identified on 04/28/11, the following was noted: i, Residents who were interviewed complained about being bitten by bed bugs; j. Observations were conducted of resident rooms; and k. Evidence of bed bugs was present on residents’ linens and mattresses. 69. That on 05/12/11 during the tour of Respondent’s facility between 9:20 AM and 11:00 AM, a full thirteen (13) days after the 04/28/11 survey, the following observations revealed a continued infestation of bed bugs and German roaches: a. In Room 208: Two (2) live bed bugs were present on the door frame in the hallway. b. In Room 209: Resident No. 5 was present in the bedroom, sitting on the bed closest to the door. i. His left arm had several bite marks; he stated “Yes, they are itchy and I scratcli a lot”; ii. The Agency ARNP observed several red bite marks on the resident’s forearms; bite marks were present in a “row” along the wrist bone and just below the resident’s little finger; Page 27 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 iii, | Observation of the window bed in this room revealed: one (1) live bed bug was present on the bedspread, one (1) bed bug larvae when the cover was pulled back, and five (5) live bed bugs were observed on top of the plastic mattress cover. ¢. In Room 208: Two (2) residents were present in the room, playing cards and sitting on the window bed, specifically Resident No. 6 and Resident No.2 (hereafter “R6” and “R2”), i. Regarding R6: a) b) ¢) d) 8) h) Red, blood like marks were observed on the pillow case of the window bed; R6 confirmed the window bed in this room was where she slept; She stated that the red marks on the pillow are from the bug bites that happen at night; Observation conducted of R6 revealed three (3) red, scabbed marked areas on her right forearm; R6 also had a couple of red marks on her face; R6 stated she is getting bitten, and they itch; When R6 pulled up her pant leg, she had a live bed bug present on the inside of the pant leg; and Approximately six (6) live bed bugs were observed in the room: one (1) was on the bed. When the pillow was pulled up, live bed bugs were on the linens and the others were on the window sill. Page 28 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 ii, Regarding R2: a) b) R2 stated he resides in Room 209; and R2 was observed to have scattered bite like red marks on his left and right forearms. iii. Continued observations in Room No. 208 revealed the following: a) b) Room contents included: two (2) large bags that were tied shut, personal belongings, and clothes were on a dresser; and Live bed bugs were observed inside the bags; at the time of this observation, an interview was conducted with Respondent’s Administrator, who claimed: the bags of clothing belonged to a hospitalized resident; the articles had not been cleaned and were waiting for the resident to claim them. Respondents Administrator confirmed the articles/clothing had not been treated or cleaned before placing them in the bag. d. During an interview with Respondent’s Administrator on 05/12/11 at approximately 10:00 AM, the following was revealed: i. Respondent’s Administrator stated she will, under present conditions, admit new residents to Respondent’s facility; ii, Respondent’s Administrator stated she has not posted any information on Respondent’s front door to warn visitors of the facility’s bed bug infestation; and iii. She also confirmed she has neither provided in the past, nor does she currently provide any information or make an effort to inform any non-residents entering Respondent’s building about the bed bug infestation. Page 29 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/201 1005672 e. In Room 310: i. The bed closest to the door had no cover on the mattress, and there were red marks scattered throughout the mattress: ii, Two (2) bed bugs were observed on the mattress: one (1) of which was dead, the other was alive; iii, Between the two (2) beds was a night stand, which was: a) Made from corrugated wood product; b) Heavily warped in the rear section; and c) A residence for approximately twenty (20) live German cockroaches, which were observed in a crevice created by pulling the warped rear section of the night stand from the remaining portion. iv. One (1) high top tennis shoe was observed to have approximately: seven (7) to eight (8) live bed bugs present on the fold of the shoe. The bathroom attached to this room had two (2) windows, one (1) of which was open, with no screen present in the opening. f. A demonstration was conducted during the tour which clarified, inter alia, the logic and rationale for concluding that numerous residents at Respondent’s facility had been bitten by bed bugs. i. Specifically, said demonstration involved squeezing a live bed bug in order to “pop” it; and ii. Upon being squeezed, the bed bug popped, resulting in blood seeping from its body sack. According to a representative from the Health Department, this was an indication the bed bug had bitten someone. Page 30 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 201 1005046/2011005313/2011005672 g. In Room No. 309, the following observations were made: i. One (1) live bed bug was observed on the pillow of the bed next to the window; and ii, Four (4) live cock roaches: three (3) of which were walking on the walls, and one (1) running across the floor. h. In Room 307, the following observations were made: i. One (1) live bed bug was observed on the bed linen; and ii. | One (1) live roach was observed on the floor near the door bed. i, The following observations were made of the common area: i) Residents were sitting on lobby furniture; and ii) There were several live bed bugs in the material folds and beneath the cushions; and iii) Four (4) live-cockroaches were observed on the floor of the adjacent kitchen. j. Interviews and observations with residents in main common area, conducted on 05/12/11 at approximately 12:00 PM, revealed the following: i) Regarding Resident No. 3: a) He stated he has resided at Respondent’s facility for approximately one (1) month and that Respondent’s facility has a bad problem with bed bugs; b) Observation of both forearms found numerous healing bites, scattered healing bites over back and neck; and c) He denied current bites; the facility gave him cream for the bites and, “It helped.” Page 31 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 ii) Resident No, 7 stated Respondent’s facility has “lots of bed bugs”, but the resident moved to the next door room and hasn’t seen any more. iii) Resident No. 8 stated there were bed bugs in his bed this morning, little ones. He did have bites, but they healed. No medications have been prescribed for the bites. His lower arms were observed and the back of his neck and no bites were seen, though, several healed areas were noted. k. Four (4) residents, specifically Resident No. 1, Resident No. 2, Resident No. 3 and Resident No. 4, were determined to be actively receiving treatment for “Itchiness” caused by the bed bug bites since 04/19/11. I. Record review of the Department of Health Inspection Report, dated 05/12/11, for the 05/12/11 visit, revealed the following: a) It identified an “Unsatisfactory” visit report; b) It cited Respondent with four (4) violations of local or state codes: Maintenance, Cleaning/Odors, Infestation/ Presence, and Screening; c) It stated, “Severe infestation of Bed bugs and German Roaches observed in the following areas: Lobby, Rooms 207, 208, 209, 307, 309, and 310. Live bed bugs observed on bedding, walls, floors, common lobby.couch, clothing, shoes, and on pant legs of resident; apparent bite marks observed on several residents. The department strongly recommends this establishment obtain the services of a professional exterminator as the infestation of bed bugs is severe.” 70.. That Respondent not only appeared patently oblivious to inherent problems necessarily associated with a bed bug and roach infestation, but also fundamentally failed to perform virtually any Basic Remediation Efforts or otherwise adhere or attempt to consistently perform Page 32 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/201 10053 13/201 1005672 any logical remediation efforts, even after the Agency’s initial or subsequent surveys referenced herein notified Respondent clearly of the significance of said infestation and resulting requirements to remediate same. 71. That accordingly, Respondents failure to maintain a high quality of life for Respondent’s residents, as described herein above, is in direct violation of the Resident’s Bill of Rights. 72. That the above reflect, inter alia, that Respondent repeatedly failed and/or refused to provide a safe and decent environment to residents residing at Respondent’s facility due to the widespread, on-going, unabated, and severe infestation of bed bugs and German roaches within resident rooms, common areas, lobby, and kitchen of Respondent’s facility and/or alternatively and more generally, Respondent failed to ensure Respondent’s ‘residents were safe from abuse and neglect arising from said residents being forced to live in sub-standard conditions associated with such a severe, widespread and unabated infestation of bed bugs and roaches, contrary to law. 73. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom and cited Respondent for a State Class I deficiency violation. 74, That the same constitutes grounds for a State Class I deficiency violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of Ten Thousand and No/100 ($10,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429.19(2)(a). Page 33 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 COUNT VI(A802) 75, The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 76. That pursuant to Florida law, the general responsibilities concerning food service standards for an ALF mandate, inter alia, that “[w]hen food service is provided by the facility, the administrator or a person designated in writing by the administrator shall: (c) Provide regular meals which meet the nutritional needs of residents, and therapeutic diets as ordered by the resident’s health care provider for resident’s who require special diets.””” 77. — That the requirements of rule 58A-5.020(1)(c) herein above shall hereafter be referred to in this Count as “Minimal Nutritional Standards”. 78. That based upon observation, record review and interviews, Respondent’s Administrator or a person designated in writing by Respondent’s Administrator failed to ensure Respondent’s residents received a), Regular meals, b). Which meet the nutritional needs of residents, and/or c). Therapeutic diets as ordered by the residents’ respective health care provider for residents requiring special diets. Specifically, Respondent’s Administrator or a person designated in writing by Respondent’s Administrator failed to a). Ensure Respondent’s residents received regular meals to meet their respective nutritional needs, and b), Serve portion sizes consistent with the menu prepared by the Registered Dietician for meeting nutritional needs for three (3) of ‘twenty-seven (27) residents complaining of not getting enough to eat, specifically Resident No. 5, Resident No. 9, and Confidential Resident, hereafter “R5”, “R9”, and “CR”, respectively. 79. That Respondent’s failure to ensure Respondent’s residents received Minimal Nutritional Standards necessarily and directly threatened the physical or emotional health, safety, or security Pla, Admin, Code R. 58A-5.020(1)(c). Page 34 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 of such residents receiving sub-standard nutrition, whether in the form of malnourishment and/or potentially and life-threatening health-related complications as a result therefrom. 80. — That on or about 05/12/11, the Agency concluded a Monitoring Visit of the Respondent’s facility. 81. That as a result of personal observations on 05/12/11 at approximately 12:20 PM of Respondent’s lunch meal, the following was revealed:. a. Respondent served lunch to approximately twenty-seven (27) residents; and b. These residents were served the following: i. A small glass of juice product; ii, A deli meat; iii. A cheese sandwich; and iv. Two (2) to three (3) slender slices of cucumber (approximately % cup serving size); No other food products were observed to be offered to the residents. . 82. That based on an interview conducted at the time of said observation (in the preceding paragraph) with Respondent’s Assistant Administrator, the following was revealed: a. Respondent’s Assistant Administrator stated residents should have been served a sandwich or soup per the Registered Dietician’s signed menu; and b. Record review of Respondent’s menu revealed the following portions were to be served to the residents: i. Soup Du Jour (6 oz); Three (3) crackers; ii. Bologna and Cheese (3 02); iii. | Cucumber salad (4 cup); and iv. Fruit Juice (4 oz). Page 35 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 83. That during an interview conducted on 05/12/11 at approximately 1:00 PM, Respondent's Administrator: 84. a. Admitted Residents should have been served not only soup and crackers, but also a full 4 cup of cucumber salad; » Confirmed Respondent’s cook had not checked with her; . Stated she tries to get the cook to follow the Dietician’s menu or offer alternatives when the identified meal is not available; and . Admitted the meal served to the residents, referenced herein above, did not match what should have been served. The meal served was approximately one-half (%) of the portion size of the meal that should have been served to the residents in order to meet their nutritional needs, That on 05/12/11 at approximately 11:30 AM, resident interviews revealed the following concerns with respect to the quantity of food served to Respondent’s residents by Respondent: 85. a. Resident No. 5: stated “I’m hungry and I can’t wait for noon and lunch.” Several times, he was observed looking at the menu in the dining room; . Confidential Resident interview: stated, “I’m starving. Can you get me some food?” When asked if he could get a snack and he stated, “Maybe they would give me a cracker, but, usually they tell me to go away and wait for lunch”; and Resident No. 9: stated, “I’m f hungry.” That the above reflect, inter alia, Respondent’s Administrator or a person designated in writing by Respondent’s Administrator failed to ensure Respondent’s residents received a). Regular meals, b). Which meet the nutritional needs of residents, and/or c). Therapeutic diets as Page 36 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/201 1005672 ordered by the residents’ respective health care provider for residents requiring special diets, contrary to law. 86. That Respondent’s failure to ensure Respondent’s residents received Minimal Nutritional Standards as described more fully herein above necessarily resulted in such residents, who receive sub-standard nutrition, being at risk for malnourishment and exposed such residents to potentially life-threatening and health-related complications as a result therefrom. 87. That the Agency determined this deficient practice was related to the Operation and maintenance of a provider or to the care of clients which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations and cited Respondent for a State Class IT deficiency violation. 88. That the same constitutes grounds for a State Class II deficiency violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of Five Thousand and No/100 ($5,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429,19(2)(b). COUNT VII (A718) 89. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Count V as if fully set forth herein. 90. That on or about 05/16/11, the Agency concluded a Monitoring Visit and Complaint Investigation Survey (CCR No. 2011005231) of the Respondent’ s facility. 91. That based upon observation, interview and record review, Respondent failed to provide a safe and decent environment (ic. sanitary and pest free) to twenty-seven (27) of twenty-seven (27) residents residing at Respondent’s facility on three (3) of three (3) floors due to the Page 37 of 73 AGENCY VS. HILCREST RETIREMENT RES]DENCE Case Nos. 2011005046/201 10053 13/201 1005672 widespread, on-going, unabated, and severe infestation, which included bed bugs and roaches and/or alternatively and more generally, Respondent failed to ensure Respondent’s residents were safe from abuse and neglect associated with and/or as a result of said infestation; specifically, Respondent’s residents were found to be unkempt, with evidence of confusion, disassociation, and bite marks. Left without timely and professional treatment, this practice and current conditions placed the residents at risk for ori-going harm, serious injury and major health problems. 92. That during observation, interview with the Respondent’s residents, Respondent’s Administrator and the pest control agent on 05/16/11, the following was revealed which, inter alia, lead to the Agency’s determination that Respondent’s facility was heavily infested with bed bugs, live roaches and termites: a. Respondent’s Administrator: i. Confirmed having a pest problem since August of 2010; ii, Stated the cost to provide pest control service was unaffordable; and iii. Claimed to have attempted to do a self-home pest control, but the infestation got worse due to the lack of professional services. b, Respondent’s pest problem (i.e. infestation) was widespread; c. Respondent’s Administrator showed the surveyors what she claimed to have purchased earlier that same day (on 05/16/11) for the bed bug and related infestation problem; the product shown was “Demon WP”, for the housekeeper to use in the residents’ rooms. Respondent’s Administrator indicated said treatment would be started today. She stated that the pest control company was on the 3rd floor and would treat Room No. 3 10, Room Page 38 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/20110053 13/201 1005672 93. No. 307 and Room No. 309 and the residents needed to be out of their room for three (3) to four (4) hours. That Respondent claimed to have purchased “Demon WP” to remediate, inter alia, a bed bug infestation. 94, a However, Demon WP is not intended for use as a method to eradicate bed bugs. “Demon WP is very active against a wide range of insects and arachnids. These include large roaches, ants, crickets, bees, wasps, fire ants, silverfish, lady bugs and spiders.” That the DemonWP.com website contains an entire section devoted to referring users to other links and products to control bed bugs. That Demon® is a trademark of a Syngenta Group Company, the manufacturer. According to the manufacturer’s own website and the Demon® WP Insecticide product label itself, it is intended to be used to as, “[a] general surface, crack and crevice and/or spot treatment for residual and contact control of ants, carpenter ants, cockroaches, crickets, spiders and other insect pests.” It does not specify an intended use for bed bugs. On the contrary, the manufacturer of Demon® WP Insecticide recommends another product named Demand® EZ, which is specifically designed to treat bed bugs.”! Respondent’s Administrator presented the surveyors documentation given to Respondent from the pest control company containing specific pre-treatment instructions, which were to be followed/conducted by Respondent prior to the pest control company conducting their professional extermination on the premises. * See http://www.demonwp.com (last visited May 27, 2011). ; 3! The Demand® EZ, product information sheet is located on the manufacturer’s website. See http://www.syngenta- us.com/images/resource_pages/pmp/Demand_EZ,_ Sell _Sheet.pdf (last visited May 27, 2011). Page 39 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 95, a, The surveyor asked Respondent for a copy, but Respondent’s Administrator claimed she had no ink in the printer and was not able to copy the form; b. Respondent’s Administrator was asked to present the exterminator agreement, but Respondent’s Administrator failed to do so; and ¢c. Respondent also failed to produce any evidence to Agency surveyors showing that the pre-treatment service was started prior to 05/16/11. Pursuant to an interview conducted at 2:35 PM on 05/16/11 with the pest control agent (hereafter “Professional Exterminator”) on site, the following was revealed: a. The Professional Exterminator confirmed the treatment plan for Respondent’s facility consisted of treatment to Room No. 310, Room No. 309, and Room No. 307 on 05/16/1 1; . The process for extermination included a three hundred (300) degree steam to the rooms and the mattress to kill bed bugs and bed bug eggs; The contract with Respondent’s facility was to provide a one (1) year pest control service for roaches and similar pests; However, the bed bug treatment was specifically signed for only a thirty (30) day period. The Professional Exterminator stated follow-up visits would be made every one (1) to two (2) days [approximately ten (10) visits] in relation to the bed bug infestation treatment; Furthermore, the Professional Exterminator confirmed Respondent’s facility had a German Roach problem, the scope of which was approximately fifty percent (50%) of the facility, and that extermination for the roaches was to be done today; The Professional Exterminator confirmed Respondent’s facility was heavily infested with live bed bugs, German roaches and termites throughout; and Page 40 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 h. The Professional Exterminator confirmed on 05/16/1 1, that the 3rd floor rooms were to be treated and the 2nd floors rooms would be treated, but, not today; the mattresses and box springs were treated or discarded as needed; and the contract was only to treat the . most heavily infested bed bug rooms located on the 2nd and 3rd floors which were determined by Respondent’s Administrator. 96. That at this time, the following observations were made of Respondent’s facility and residents: a, Respondent’s residents were: i, Observed to be gathered throughout the inside of the facility and on the front porch; ii. Dressed, but their clothes were dirty and they were not well groomed; iii. | Observed to have scabbed arms, faces, and/or legs; and iv. _ Visibly scratching themselves, b. The 1" floor common area was dimly lit and had one (1) window air conditioner unit in window; c. The television was on, and there were four (4) residents sitting in chairs; d. The hallway leading to the kitchen area contained several chairs and an occupied couch, on which appeared to be two (2) sleeping residents; e. This area was also was dimly lit; f. The common area was noted to be unclean and with a stale odor; g. The mantle on the fire place had termite droppings and evidence of flying termites with wings and eggs between some cracked wood; Page 41 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/20 110053 13/201 1005672 h. The dining room was connected to the common area; i. The back part of the dining room had a light fixture that did not work; Jj. The front part of the dining room was lit; this area also had a phone for resident use; k. The dining room table surfaces were unclean and sticky to the touch; |. The floor was unclean, as it appeared to not have been swept or mopped recently; m, The dining area contained a sink, situated against the wall, which had no running water; n. The sink basin was littered with food debris, and had not been cleaned; and o. The air conditioner was not turned on; as a result, the temperature in the room was warm and a stale odor permeated throughout. 97. That a tour of Respondent’s second floor revealed the following: a. Regarding Room No. 207: i. A resident in Room No. 207 lying on the bed; ii. Room No. 207 had no furniture, other than a bed; iii. Room No. 207 had no dresser or bureau for personal effects; there were no clothes in the closet; iv. Room No. 207’s bathroom was inspected and found to not only be dirty, but also had no toilet tissue available; v. When asked if he had any problems with insects and bed bugs the resident stated, “I was moved to this room because of the bed bugs”; vi. _ This resident’s personal grooming was poor, and his clothes were dirty; and vii. When asked if he got enough to eat, he replied, “I usually am able to get something from the local stores to eat.” This resident was very lethargic and not interested with the interview. The interview was concluded. Page 42 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 1005313/2011005672 b. That observations regarding Room No. 208 included the following: Cc i, At 2:45 PM, this room was observed to be unoccupied, contained two (2) single beds and two (2) dressers; The bed linens had a thin plastic white sheet; There were no observations of dead bed bugs; The bathroom was dirty and had a urine odor; and Both the wall and plaster were cracked. That observations regarding Room No. 209 included the following: i, At 2:50 PM, Room No. 209 was unoccupied, had two (2) beds and two (2) dressers; The bathroom was not only dirty, but an odor of urine permeated throughout; There were no light bulbs in the ceiling fixture; and The bedspreads on the bed: a) Were observed to be dirty; and b) Had spots that appeared to be blood stains. That observations at 3:10 PM of the 2nd floor’s common bathroom at the end of the back hallway included the following: The sink faucet was inoperable; There was no toilet tissue; The bathroom was not only dirty, but an odor of urine permeated throughout; The window was propped open by a stick, and the screen was pushed out; and The back door fire exit was opened and a full green garbage bag was observed on the fire escape landing. Page 43 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/201 10053 13/201 1005672 98. That further observations on the third floor in Room No. 305 included the following: a, A resident was resting in bed, awake with live bed bugs and roaches that actively crawled on the sheets and on this resident; b. The surveyor informed this resident that bugs were on him; c. The resident got up, looked at the surveyor, and walked out of the room; d. A medical record review of this resident revealed a history of limited mental health and psychosis; and e. This resident’s room was not scheduled for treatment on 05/16/11. 99. That also, paint was peeling and cracks were observed in rooms throughout Respondent’s facility. 100. That Respondent’s staff was observed to moving mattresses into rooms that were being . treated by the pest control agent. 101, That as the surveyors made their way to the end of the hallway, passing furniture and - residents, one (1) surveyor found a live bed bug on the front part of her (the surveyor’s) blouse, which bit the surveyor on the upper torso and left a visible red mark. 102, That regarding Room No. 303: a. At3:15 PM, the following observations of Room No. 303 were made: i. The room had a large window; ii, The glass was missing from the window pane, which exposed the room to the outside elements and insects; and iii. A venetian blind cord was wrapped around the bathroom door and dresser. b. The resident was not available for interview; c. A staffmember was observed in the act to place a cardboard cover on the window; Page 44 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/20110053 13/201 1005672 . Respondent’s Administrator was immediately informed of above issues concerning Room No. 303, and the concerns resulting therefrom, and was instructed to have the window replaced due to it being a dangerous safety hazard for the resident; . Respondent’s Administrator and Assistant Administrator were unable to confirm when the window pane was broken; When Respondent’s Administrator was asked why she did not repair the window, she stated the resident is responsible for any damage caused to the facility by a resident; . The resident’s mother was notified, and stated she would have someone (a friend) come to Respondent’s facility to repair the window; . Thereafter, she stated the (friend) called and said he would not come to the facility because of the bed bug infestation; Respondent’s Administrator then used her cell phone to call the resident’s mother and left a message that her friend called and stated he would not come to the facility to repair the window due to the bed bug infestation; Respondent’s Administrator was informed to have the window replaced today due to the dangerous safety hazard it presented for the resident; - Only then did Respondent’s Administrator leave the office to obtain someone to fix the window; A review of the subject resident’s record revealed no documentation of an incident by the resident; . The complainant stated she was not sure of how the window was damaged and by whom; The complainant stated the broken window happened about three (3) weeks ago, but did not have details as to how the window was broken; and .Page 45 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 0. The window was repaired on 05/16/11, during the survey. 103. That at 3:25 PM, Respondent’s Assistant Administrator was observed carrying several full garbage bags down the stairs from the 3rd floor. 104, That at 4:00 PM, the following observations were made of the dining room: | a. The dining area was dimly lit; b. The dining tables were prepared for dinner; c. The places were set with a paper napkin, fork and a four (4) ounce plastic drinking cup; d. The plastic cups were dingy and looked unclean; e. There was a white oily substance inside the bottom of the plastic cup; and f. One (1) plastic cup was observed to have a crack on the lip, and a piece of the rim missing which left a sharp edge. . 105. That the menu posted for the 05/16/11 dinner meal was meatloaf and gravy, mashed potatoes, mixed vegetables, and pudding for dessert. 106. That with respect to resident fluid intake and utensil availability: a. At 4:10 PM, Respondent’s Assistant Administrator was asked how much fluid the residents would receive during their evening meal; in response, she stated it would be eight (8) ounces; b. She was shown the plastic cup with the sharp edge and the four (4) ounce cups on the dining room table; c. She then began to replace the cups with larger eight (8) ounce cups; and d. Respondent’s Assistant Administrator was also asked why the table was set with only a fork; in response, she claimed residents will not use knives or spoons, so those utensils were not placed/provided. Page 46 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/2011005672 107. 108. That the following observations were made of the kitchen area at approximately 4:15 The cook was observed to prepare frozen vegetables from a large bowl; . While preparing said vegetables from a large bowl, this cook was not wearing a hair net and not using gloves; The window, which did not have a screen, was open; A floor fan, pointed at the food preparation table, was on; The kitchen freezer was observed to have an assortment of frozen foods such as hot dogs, chicken and kielbasa; The refrigerator had ten (10) loaves of bread, one and one-half (14) gallons of milk, eighteen (18) eggs, lettuce and three (3) bags of coleslaw; . This refrigerator did not look clean, and there were no refrigerator temperature logs or a cleaning schedule posted; That at 4:20 PM, and interview was conducted with the cook, who claimed she does the dishes according to the health department standards; and The cook also stated she was unaware of any diabetic residents at the facility. At approximately 4:20 PM, a tour of the outside of the facility revealed the following: A separate structure for resident laundry services; » There were wooden steps that lead down from the main building backdoor to the structure; The wooden steps were cracked with peeling paint; The second step had a large crack, and lifted when stepped on, and a nail was visibly loose; Page 47 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/20110053 13/201 1005672 e. The outside of the structure had approximately ten (10) black bags piled against the wall on the ground; f. Respondent’s Assistant Administrator stated: i. These bags contained bed bug infested linen; ii. The linen was wrapped in plastic black bags because the bed bugs would suffocate and die, then the linen would be brought to a Laundromat to be cleaned; and iii. | That someone would take the linen once a week to the Laundromat. g. However, four (4) of these black bags were observed to have adult hand-sized holes, with exposed laundry touching the ground; h, Respondent’s Assistant Administrator stated she would have someone come out and double bag the bags; i, There was a discarded mattresses that leaned against the structure; j. An observation was made of cushions and debris (cans, plastic bottles) scattered on the west side of Respondent’s facility property; and k. A view of the outside of the building revealed not only that windows were missing screens, but also the back door (fire exit door) to the building was propped open and the screen was broken, which exposed the building to the outside elements and pests. 109. That based on observation and interview, the following was revealed concerning the Respondent’s laundry area and laundry process: a, Upon entry to the laundry area, the room was dimly lit; b. Respondent’s Medtech stated: i. The residents drop off their laundry in black bags to be washed; Page 48 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 1005313/201 1005672 110. ii. He does the residents’ laundry and, once the clothes are dried, he returns the clothes to the respective resident to fold themselves; and iii. | He does not fold their clothing. There was no indication of any separation or delineation of a clean laundry area from a dirty laundry area; . There were multiple black bags of resident clothing; Some of these black bags were found open, with holes in the bag and with exposed dirty linen on the ground; These black bags were not labeled; The washer and dryer machines were for residential use; and In the room, there was a storage area that contained comforters, clothing and equipment that were not covered, were soiled, dusty, not labeled, and on the ground. That based on observation and interview, the following was revealed concerning the Respondent’ s food storage area: a. b. The food storage area was connected to the laundry room; The food storage area was opened by the Assistant Administrator; There were two (2) freezers; The storage area was noted to have boxes on the floor, a floor fan (not in operation), and shelves containing canned food products, rice, cereal and water; The bigger freezer had a temperature of eight (8) degrees; There was gray masking tape wrapped around the cover of the freezer to secure the rubber; Page 49 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 111. . The items included meat and fish in boxes, cheese and butter; . There was a box of frozen vegetables that was open and freezer burn was observed; There was a plastic bag of french fries that had an opening with freezer burn observed: The 2nd freezer held about seven (7) loaves of bread with an expiration date of 05/17/11; . The Assistant Administrator stated she had just brought the bread this past weekend; The sugar was located in a closed container jn a black plastic bag, yet this container was labeled salt; . The rice was on the shelf, not in a container; . There was bottled water, but not enough for the three (3) day supply requirement for drinking and food preparation; . The Assistant Administrator stated she was not aware of the ALF requirement to have a three (3) day supply of non-perishable food, which included water sufficient for drinking and food preparation; . A fan was in the room that was unplugged and full of dust; . There was no powdered milk; The observation of the freezer content revealed food exposed with freezer burns, as well as cheese and butter on the bottom of the freezer. That after the food storage tour, several residents were observed wearing dirty clothes and were also complaining of personal items being put in plastic bags with holes near the laundry room, 112. That several residents complained about having to retrieve their personal items from the dumpster. Page 50 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 113. That a laundry room was full of several plastic bags waiting to be laundered and returned to the resident to fold and store, 114, That at 4:35 PM, Respondent’s Assistant Administrator stated residents’ clothing was removed from the rooms because of the bed bug infestation, and admitted that residents. would go back to the dumpster to retrieve clothing or other articles and bring them back into Respondent’s facility. 115. That Respondent had no plan in place to obtain new clothing for the residents, or to ensure that infested clothing was not returned untreated to resident living areas. 116, That the following was revealed pursuant to an interview of one (1) of Respondent’s residents at approximately 4:40 PM: a. He stated he had been here about a month; b. He was observed on the couch in common area; c, He had multiple scabbed areas on his bilateral forearms, face, and neck; d. He was noted to visibly scratch his head and neck; e. When asked why he scratched, he responded that the bite marks started when he arrived at Respondent’s facility, as the place has a bed bug infestation problem and that the marks were worse about a week ago than they are now; f. There were no open lesions noted; g. He stated the aide placed some type of cream on his skin, but, nothing for his head; h. When asked about the food at the facility, he shook his head and stated, “Not good”; i. When asked if he gets enough to eat, he stated, “No” and that he was unable to get food or a snack at night; Page 51 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 117. He stated, “we only can get coffee in the morning” and there was a water fountain available during the day; and When asked if he got enough to drink and eat, he stated: “You get a small glass of juice at dinner.” That the following was revealed pursuant to an interview of another resident at Respondent’s facility at approximately 5:00 PM, on the porch outside: a b. 118. She was observed with scabbed areas over her arms, chest, legs, and face; She stated she had been treated twice with cream to her skin by another facility before coming to this facility; She was not able to tell how long she had been at this facility; There were no open lesions; ) She was observed to visibly scratch all over; She was wearing a tank top, shorts and sandals; Her clothes were in. poor condition; She stated that Respondent took her clothes, and she did not know where they were; and When asked about the food, she responded that: the food was OK, and she gets enough to eat, but needs to ask to get something to drink. That Respondent not only appeared patently oblivious to inherent problems necessarily associated with a bed bug and roach infestation, but also fundamentally failed to perform virtually any Basic Remediation Efforts or otherwise adhere or attempt to consistently perform any logical remediation efforts, even after the Agency’s initial or subsequent surveys referenced herein notified Respondent clearly of the significance of said infestation and resulting requirements to remediate same. Page 52 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 119. That Respondent was evacuated on 05/18/11 and twenty-seven (27) residents were transferred to other ALFs in the area. One (1) of twenty-seven (27) was Baker Acted by the local police department. 120. That the Agency determined this deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious ‘physical or emotional harm would result therefrom and cited Respondent for a State Class I deficiency violation. 121. That Respondent failed or refused to take action to correct the deficient practice despite a previous citation for the violation.” 122. That the above reflect, inter alia, that Respondent repeatedly failed and/or refused to provide a safe and decent environment to residents residing at Respondent’s facility due to the .widespread, on-going, unabated, and severe infestation of bed bugs and German roaches within resident rooms, common areas, lobby, and kitchen of Respondent’s facility and/or alternatively and more generally, Respondent failed to ensure Respondent’s residents were safe from abuse and neglect arising from said residents being forced to live in sub-standard conditions associated with such a severe, widespread and unabated infestation of bed bugs and roaches, contrary to law. 123. That the same constitutes grounds for a State Class I deficiency violation as defined by law. % § 429,19(3)(c), Fla. Stat. Page 53 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/201 10053 13/201 1005672 WHEREFORE, the Agency intends to impose an administrative fine in the amount of Ten Thousand and No/100 ($10,000.00) Dollars against Respondent, an ALF in the State of Florida, pursuant to section 429,19(2)(a). COUNT VII (Survey Fee) 124, The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 125. That pursuant to section 429.19(7), “[i]n addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of Respondent’s facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429,28(3)(c) to verify the correction of the violations,” 126. That pursuant to section 429.19(7), such a finding subjects Respondent to a survey fee equal to the lesser of one-half (4) of Respondent’s biennial license and bed fee, or Five Hundred and No/100 ($500.00) Dollars. 127. That Respondent is therefore subject to a survey fee of Five Hundred and No/100 ($500.00) Dollars. WHEREFORE, the Agency intends to impose an additional survey fee of Five Hundred and No/100 ($500.00) Dollars against Respondent, an ALF in the State of Florida,** COUNT IIX (Revocation) 128. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Count I through Count VI as if fully set forth herein. 3 Td. § 429,19(7). 34 Id. Page 54 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/20110053 13/201 1005672 129. That pursuant to the Assisted Living Facilities Act: “(2) The purpose of this act is to promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive and most homelike environment, to encourage the development of facilities that promote the dignity, individuality, privacy, and decisionmaking (sic) ability of such persons, to provide for the health, safety, and welfare of residents of assisted living facilities in the state, to promote continued improvement of such facilities, to encourage the development of innovative and affordable facilities particularly for persons with low to moderate incomes, to ensure that all agencies of the state cooperate in the protection of such residents, and to ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the Department of Children and Family Services, the Department of Health, assisted living facilities, and other community agencies. To the maximum extent possible, appropriate community- based programs must be available to state-supported residents to augment the services provided in assisted living facilities. The Legislature recognizes that assisted living facilities are an important part of the continuum of long-term care in the state. In support of the goal of aging in place, the Legislature further recognizes that assisted living facilities should be operated and regulated as residential environments with supportive services and not as medical or nursing facilities. The services available in these facilities, either directly or through contract or agreement, are intended to help residents remain as independent as possible. Regulations governing these facilities must be sufficiently flexible to allow facilities to adopt policies that enable residents to age in place when resources are available to meet their needs and accommodate their preferences. (3) The principle that a license issued under this part is a public trust and a privilege and is not an entitlement should guide the finder of fact or trier of law at any administrative proceeding or in a court action initiated by the Agency for Health Care Administration to enforce this part.” 130. That pursuant to Florida law, the Agency may deny, revoke, and suspend any license issued to an ALF and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules.*° 131. That pursuant to Florida law, “‘[c]lient? means any person receiving services from a 35 Td, § 429.01(2), (3) (emphasis added). 36 Id. §§ 408.815, 429.14, .19, .49. Page 55 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/201 1005672 provider listed in s. 408.802."77 132, That pursuant to Florida law, ““[p]rovider’ means any activity, service, agency, or facility regulated by the agency and listed in s. 408,802.8 133. That pursuant to Florida law, the provisions the Health Care Licensing Procedures Act apply not only to the provision of services that require licensure as defined in the Health Care Licensing Procedures Act but also to ALFs pursuant to the Assisted Living Facilities Act.°? 134, That specifically, Florida law provides that: (1) In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee of an assisted living facility for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee of an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. ok (I) Any act constituting a ground upon which application for a license may be denied.” 135. That specifically, Florida law provides that: In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license ... include any of the following actions by a controlling interest: (a) False representation of a material fact in the license application or omission of any material fact from the application. (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. 37 Td. § 408.803(6). 38 Id. § 408.803(11). ° Id, § 408.802(14). Id. § 429.14(a), (1). Page 56 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 (d) A demonstrated pattern of deficient performance. (ec) The applicant, licensee, or controlling interest has been or is currently excluded, suspended, or terminated from participation in the state Medicaid program, the Medicaid program of any other state, or the Medicare program.*! 136. That pursuant to Florida law, administrative penalties include, inter alia, the following: (1) In addition to the requirements of [the Health Care Licensing Procedures Act], the agency may deny, revoke, and suspend any license issued under [the Assisted Living Facilities Act] and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of [the Assisted Living Facilities Act], [the Health Care Licensing Procedures Act], or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (b) The determination by the agency that the owner lacks the financial ability to provide continuing adequate care to residents. (c) Misappropriation or conversion of the property of a resident of the facility. OK (e) A citation of any of the following deficiencies as specified in s. 429.19: 1. One or more cited class I deficiencies. 2, Three or more cited class II deficiencies. 3, Five or more cited class III deficiencies that have been cited ona single survey and have not been corrected within the times specified. * KOK (g) Violation of a moratorium. (h) Failure of the license applicant, the licensee during relicensure, or a licensee that holds a provisional license to meet the minimum license requirements of [the Assisted Living Facilities Act], or related rules, at the time of license application or renewal. (i) An intentional or negligent life-threatening act in violation of the uniform firesafety (sic) standards for assisted living facilities or other firesafety “Id. § 408.815(1). Page 57 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 (sic) standards that threatens the health, safety, or welfare of a resident of a facility, as communicated to the agency by the local authority having jurisdiction or the State Fire Marshal. * OK OK (k) Any act constituting a ground upon which application for a license may be denied. (2) Upon notification by the local authority having jurisdiction or by the State Fire Marshal, the agency may deny or revoke the license of an assisted living facility that fails to correct cited fire code violations that affect or threaten the health, safety, or welfare of a resident of a facility. Wok OK (4) The agency shall deny or revoke the license of an assisted living facility that has two or more class I violations that are similar or identical to violations identified by the agency during a survey, inspection, monitoring visit, or complaint investigation occurring within the previous 2 years. * OK OK (7) Agency notification of a license suspension or revocation, or denial of a license renewal, shall be posted and visible to the public at the facility.” 137. That at all material times hereto, Respondent had a continuing duty to maintain its operations in accord with the minimum requirements of law and to provide care and services at mandated minimum standards. 138. That based upon the reason specified herein, Respondent has various violated provisions of the Health Care Licensing Procedures Act, the Assisted Living Facilities Act, and Chapter 58A-5 of the Florida Administrative Code, which subject Respondent to licensure revocation on multiple independent grounds. 139. That Respondent has a duty to maintain its operations in accord with the minimum standards of law and its actions and/or inactions as described with particularity herein constitute intentional or negligent acts which are in violation of the mandates of law and materially affected the health or safety of Respondent’s residents, Id. § 429.14, Page 58 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/20110053 13/2011005672 140. That Respondent’s license was last renewed on 01/03/07. 141. That Respondent’s license expired on 05/17/11. 142. That Respondent submitted an application for licensure renewal, which was received by the Agency on 03/09/11. 143. That with respect to Respondent, the Agency has independent grounds to revoke Respondent’s licensure to operate an ALF in the State of Florida based, inter alia, on a 3 demonstrated pattern of deficient performance” as evidenced by the following survey deficiency history: Historical Deficiency Analysis since June 2009 Date # Deficiencies Survey Type 1 ). 06/29/09 26 Complaint Investigation Survey (CCR No. 2009006312): cited for 26 Class III deficiencies concerning Facility/Resident Records Standards, Fiscal Standards, Facility Records, Staffing, Medication, Resident Care, Nutrition & Dietary, Physical Plant, and Staff Records Standards.* 2). 08/10/09 15 Revisit Survey to Complaint Investigation (CCR No. ' 20090066312) on 06/29/09: cited for 15 Class IH deficiencies concerning Admissions Criteria, Staffing, Medications, Resident Care, Physical Plant, and Staff Records Standards (including 11 uncorrected Class III deficiencies). 3). 08/20/09 2 Appraisal Visit: cited for 2 Class III deficiencies concerning Admissions Criteria and Physical Plant Standards.”° ” 4). 09/11/09 9 CHOW, ECC & LMH Licensure Survey: cited for 9 Class III deficiencies concerning Staffing, Policies and Procedures, Nutrition & Dietary, and Staff Records Standards.*” “ Pursuant to section 408.815(1)(d), Florida Statutes, “ See Exhibit “S_1”, attached hereto and incorporated herein by this reference, * See Exhibit “S_2”, attached hereto and incorporated herein by this reference. “° See Exhibit “S_3”, attached hereto and incorporated herein by this reference. "’ See Exhibit “S_4”, attached hereto and incorporated herein by this reference. Page 59 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 3). 6 ). Date 06/04/10 03/28/11 04/28/11 05/12/11 05/16/11 Total deficiency violations since June 2009: # Deficiencies 7 716 Survey Type Appraisal Visit: cited for seven (7) Class III deficiencies concerning Resident Care and Physical Plant Standards,*® LMH Licensure Survey: cited for eight (8) Class III deficiencies concerning Staffing, Facility Records, Medication, Physical Plant, and Staff Records Standards,*? Complaint Investigation Survey (CCR No. 2011004368): cited for four (4) Class II deficiencies concerning Physical Plant Standards and’ | Class Ill deficiency concerning Medications Standards. Monitoring Visit: cited for one (1) Class I deficiency (widespread) concerning Resident Care Standards, 1 Class II deficiency (patterned) and one (1) Class III deficiency (widespread) concerning Nutrition & Dietary Standards.*! Monitoring Visit and Complaint Investigation Survey (CCR No. 2011005231): cited for one (1) Class I deficiency (widespread) concerning Resident Care Standards.°* 144, That as additional grounds evidencing a demonstrated pattern of deficient performance, the following Final Order has been filed against Respondent: Case No. 2009010095/09- 1147PH® (Final Order dated 01/12/1 1) in addition to an Immediate Moratorium on Admissions (Case No. 2011005162, dated 05/13/11) and an Emergency Suspension Order (Case No. 2011005273, dated 05/17/11). “8 See Exhibit “S_5”, attached hereto and incorporated herein by this reference. ” See Exhibit “S_6”, attached hereto and incorporated herein by this reference. © See Exhibit “S_7”, attached hereto and incorporated herein by this reference. °! See Exhibit “S_8”, attached hereto and incorporated herein by this reference. * See Exhibit “S_9”, attached hereto and incorporated hierein by this reference, ® See Exhibit “Case_1”, attached hereto and incorporated herein by this reference. Page 60 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 9954 as, ’ 145. That a “pattern” is defined as “frequent or widespread incidence ‘a regular, mainly 3955 unvarying way of acting or doing’’’, “a reliable sample of traits, acts, tendencies, or other observable characteristics of a person, group, or institution”, “a customary way of operation or p 9957 behavior””’ or “[c]onsistent and recurring characteristic or trait that helps in the identification of a phenomenon or problem, and serves as an indicator or mode! for predicting its future behavior.” 146. That Florida Statutes define a “pattern” in the context of the Agency’s discretionary authority to deny a home health agency’s renewal license if, during the previous two (2) years, the applicant or any controlling interest has been administratively sanctioned by the agency during the two (2) years prior to the submission of the licensure renewal application for one or more of the following acts: (ec) Demonstrating a pattern of falsifying documents relating to the training of home health aides or certified nursing assistants or demonstrating a pattern of falsifying health statements for staff who provide direct care to patients. A pattern may be demonstrated by a showing of at least three fraudulent entries or documents; (f) Demonstrating a pattern of billing any payor for services not provided. A pattern may be demonstrated by a showing of at least three billings for services not provided within a 12-month period; (g) Demonstrating 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 incidents, regardless of the patient or service, in which the home health agency did not provide a service specified in a written agreement or plan of care during a % See http://www.merriam-webster.com/dictionary/pattern (last visited May 28, 2011). 5 See http://www. yourdictionary.com/pattern (last visited May 28, 2011). 5 See http://dictionary.reference.com/browse/pattern (last visited May 28, 2011). 57 See http://www.hyperdictionary.com/dictionary/pattern (last visited May 28, 2011). 58 See http://www.businessdictionary.com/definition/pattern.html (last visited May 28, 2011). Page 61 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/20110053 13/201 1005672 3-month period.” 147. That Florida Statutes also define a “pattern” in the context of the Agency’s discretionary authority to impose fines/sanctions for falsification of training documents or staff health statements as follows: “A pattern may be demonstrated by a showing of at least three fraudulent entries or documents. The fine shall be imposed for cach fraudulent document or, if multiple staff members are included on one document, for each fraudulent entry on the document.” 148. That “Webster’s New World Dictionary... provides for a definition of ‘pattern’ in the context of a behavior pattern, as ‘a regular, mainly unvarying way of acting or doing.’ Webster's Third New International Dictionary (1986) provides for a definition of ‘practice’ as being ‘to do or perform often, customarily, or habitually’ or to ‘engage regularly in! 149, That one (1) court has warned that “the definition of a pattern or practice is not capable of a mathematical formulation... ."? Indeed, “[t]here is no simple definition of a ‘pattern or practice,’ see, United States v. West Peachtree Tenth Corp., 5 Cir. 1971, 437 F.2d 221, 227.78 150. That there can be no doubt that the legislature intended fully that applicable statutory sections be used to punish violators severely, especially for such prolonged, pervasive, and egregious violations. 151. Accordingly, the Respondent’s survey history referenced herein above demonstrates a 64 pattern of deficient practices supporting revocation of Respondent’s licensure. * Id. § 400.471(10)(e), (B), (8). $Id. § 400.474(3). *' Galvan v. Ayers, 2006 U.S. Dist. LEXIS 10612, 91-92 (E.D. Cal. Mar. 15, 2006). ® Ste, Marie v. Eastern R. Ass’n, 650 F.2d 395, 406 (2d Cir. 1981). ® United States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 123 (5th Cir. Ga, 1973). % Td. § 408.815(1)(d). Page 62 of 73 AGENCY VS, HILCREST RETIREMENT RESIDENCE Case Nos, 201 1005046/201 10053 13/2011005672 152, That the seventy-six (76) survey deficiencies and one (1) Final Order. show, inter alia, that Respondent has demonstrated a pattern of deficient performance sufficient to subject Respondent’s facility to revocation of ALF licensure. 153. That when violations are not merely isolated or sporadic, but rather consistent over time, similar to the facts of the case sub judice, throughout the course of multiple surveys, half (4) of which were based upon substantiated complaints, so as to effectuate an anticipated course of conduct, the untoward reality necessarily illuminates a resolute conclusion that Respondent’s numerous and diverse violations, when taken together, constitute an unfettered continuum of violations commonly referred to as a pattern. 154, That there can be no doubt that the legislature intended fully that applicable statutory sections be used to punish violators severely, especially for such prolonged, pervasive, and knowing violations, 155. That the Division of Administrative Hearings (hereafter “DOAH”)® issued an Amended Recommended Order®” in January 2011 which addressed, inter alia, the issue of whether or not an ALF demonstrated a pattern of deficient performance pursuant to section 408.815(1)(d).°° 156. That hereafter, the Docket Sheet for the Avalon case shall be referred to as “Avalon Docket” and references to pleadings contained therein shall be cited as follows: See Avalon Docket: [pleading name], [page #, { #] (filed [date filed]). * Specifically, five (5) of the ten (10) surveys cited were based upon complaints. °° DOAH’s website, located at http://www.doah.state.fl.us, is perhaps the most direct and efficient means to obtain Recommended Orders and Final Orders issued by DOAH as well as Final Orders issued by the Agency concerning cases in which DOAH issued a Recommended Order. ®7 Amended as to copies furnished only. % Agency for Health Care Administration y. Avalon’s Assisted Living, LLC d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park and Avalon's Assisted Living I, LLC d/b/a Avalon's Assisted Living at Southmeadow, Case Nos. 10-0528, 10-1672, and 10-10-1673 (DOAH Jan. 31, 2011), modified as to whether a particular individual admitted being an Administrator; otherwise adopted in toto, Case Nos. 2009009965, 2009009966, 2009011074, 2010002136, and 2010002138 (AHCA Mar. 9, 2011), hereafter this consolidated case shall be referred to as “Avalon”. Page 63 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 a. In the Avalon case, the Agency sought revocation of the ALF provider’s license for, inter alia, a demonstrated pattern of deficient performance pursuant to section 408.815(1)(d) based on the provider being cited for sixty (60) deficiencies.” b. At trial, the Agency submitted testimony as to forty-three (43) of the original sixty (60) deficiencies alleged.” ' ¢. In the court’s Findings of Fact, Judge Quattlebaum ruled in favor of the Agency and stated as follows: According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at [the ALF provider] between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. 7! d. Asa result, the Avalon court found that forty-three (43) cited deficiencies were sufficient to constitute a pattern of deficient performance pursuant to section 408,815(1)(d). 157. That with respect to the nine (9) surveys referenced in the Historical Deficiency Analysis chart herein above: a. Respondent was cited for not merely forty-three (43) deficiencies, but rather seventy-six (76), far surpassing the Avalon threshold by over seventy-six (76%) percent;”” b. Respondent was:also consistently cited in a wide variety of deficiency areas, including: 1. Admissions Criteria Standards; Facility Records; Facility/Resident Records Standards; Fiscal Standards; Medications Standards; Nutrition & Dietary; Physical Plant Standards; NAAR WY ® See Avalon Docket: Administrative Complaint, p. 32 (filed Dec. 4, 2009). 79 See Avalon Docket: AHCA’s Proposed Recommended Order, p. 23, { 62 (filed Dec. 6, 2010). | See Avalon Docket: Amended Recommended Order, p. 9, J 19 (filed Jan. 31, 2011). The Amended Final Order did not modify this conclusion of law. ® Specifically, 76.74%. Page 64 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/2011005672 8. Policies and Procedures; 9. Resident Care Standards; 10. Staff Records Standards; and 11. Staffing Standards. c, Out of the seventy-six (76) deficiencies cited, Respondent was cited for five (5) Class II deficiencies since 04/28/11 and two (2) Class I deficiencies since 05/12/11; d. Over Fifty (50%) percent” of such surveys were based on substantiated complaints; and e. Respondent was cited on 08/10/09 for more than five (5) uncorrected Class III deficiencies pursuant to the Revisit Survey to the Complaint Investigation (CCR No. 20090066312) on 06/29/09 (Exhibit “S_2”). 158. That the existence of the violations at the time they were assessed and reported in the surveys in support of the Agency’s allegation of a history of deficient performance would not be erased by timely correction. Coming into compliance neither removes a deficiency nor changes the fact that Respondent’s residents were affected by each of Respondent’s numerous deficiency violations at the time of the respective survey and citation thereof. 159, That the above facts show, inter alia, that Respondent committed intentional and/or negligent acts that materially affected the health or safety of Respondent’s clients/residents and consistently violated minimum standards of law. 160. That the above facts show, inter alia, the Agency has the following independent grounds for revocation of Respondent license: a. Respondent’s violation of section 429.14(1)(e)(1) by virtue of having been cited for one (1) or more Class I deficiencies. ® Specifically, 55.56%. Page 65 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 Specifically, Respondent was cited for a Class I deficiency pursuant to the Monitoring Visit ending on 05/12/11 (Exhibit “S_9”); accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429,14(1)(e)(1) for Respondent’s first violation of same. Respondent was cited for a second Class I deficiency pursuant to the Complaint Investigation Survey (CCR No. 2011005231) ending on 05/16/11 (Exhibit “S_10”); accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429.14(1)(e)(1) for Respondent’s second violation of same. b, Respondent’s violation of section 429,14(1)(e)(2) by virtue of having been cited for three (3) or more Class II deficiencies, i. Specifically, Respondent has been cited for five (5) Class II deficiencies, four (4) pursuant to the Complaint Investigation Survey (CCR No. 2011004368) concluded on 04/28/11 and one (1) pursuant to the Monitoring Visit ending on 05/12/11 (Exhibit “S_9”); and Accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429.14(1)(e)(2) for Respondent’s violation of same. c. Respondent’s violation of section 429.14(1)(e)(3) by virtue of having been cited for five (5) or more Class III deficiencies that have been cited on a single survey and have not been corrected within the times specified. i. Specifically, Respondent was cited for twenty-six (26) Class III deficiencies from the Complaint Investigation Survey (CCR No. 2009006312) dated 06/29/09 (Exhibit “S_1”); the mandatory date of correction for said deficiencies was Page 66 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/2011005672 07/29/09. Respondent was cited for fifteen (15) total Class III deficiencies, eleven (11) of which were uncorrected Class III violations, on 08/10/09 during the Revisit Survey to Complaint Investigation (CCR No. 20090066312) from 06/29/09 (Exhibit “S_2”); and Accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429.14(1)(e)(3) for Respondent’s violations of same. d. Respondent’s violation of section 429,14(1)(b) by virtue of a determination by the Agency that Respondent’s owner lacks the financial ability to provide continuing adequate care to Respondent’s residents. i. ii. Specifically, during the Monitoring Visit and Complaint Investigation Survey (CCR No. 2011005231) which concluded on 05/16/11, Respondent’s Administrator stated the cost to provide pest control service was unaffordable;™ and Accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429.14(1)(b) for Respondent’s violation(s) of same. e, Respondent’s violation of section 429.14(1)(h) by virtue of Respondent, a licensee during relicensure, to meet the minimum license requirements of this part, or related rules, at the time of license. Specifically, the Agency received Respondent’s application for license renewal on 03/09/11. Since 03/09/11, Respondent has been cited for twenty-five deficiencies, eight of which were uncorrected Class III violations (Exhibit “S_7”), five Class I] deficiencies (Exhibits “S_8” and “S_9”), two Class I deficiencies (Exhibits “S_9” ™ See Exhibit “S_10”, See also page 38, J92(a)(ii) herein. Page 67 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/201 10053 13/201 1005672 and “S_10”), and an Immediate Moratorium on Admissions (Case No. 2011005162, dated 05/13/11) and an Emergency Suspension Order (Case No. 2011005273, dated 05/17/11). ii, Accordingly, the Agency has independent grounds to revoke Respondent’s license pursuant to section 429.14(1)(h) for Respondent’s violation(s) of same. f. Respondent’s violation of section 429,14(1)(k) by virtue of Respondent having committed an act constituting a ground upon which application for a license may be denied. i. That a license may be denied for the following reasons: a) Section 429.14 authorizes the Agency to deny any license, inter alia, for: Denial Basis No. 1: Denial Basis No. 2: Denial Basis No. 3: Denial Basis No. 4: Denial Basis No. 5: Denial Basis No. 6: Denial Basis No. 7: Ch, 408, Part II. Ch. 429, Part I. ™ 1d, § 429.14(1)(a). ™ Id. § 429,14(1)(b). 14. § 429,14(1)(e)(1). 89 Td, § 429.14(1)(e)(2). 51 Td, § 429,14(1)(e)(3). Any violation of the Health Care Licensing Procedures Act;” Any violation of the Assisted Living Facilities Act;” An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility;”” The determination by the agency that the owner lacks the financial ability to provide continuing adequate care to residents’ A citation of one (1) or more cited Class I deficiencies;”” A citation of three (3) or more cited Class II deficiencies;®° and A citation of five (5) or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified.®! Page 68 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/201 10053 13/201 1005672 i. Pursuant to the reasons more fully described herein above, Respondent has violated the Health Care Licensing Procedures Act and the Assisted Living Facilities Act; ii, Specifically, and pursuant to the reasons more fully described herein above: a) Respondent has committed intentional or negligent acts seriously affecting the health, safety, or welfare of Respondent’s residents;*” b) Respondent had admitted it lacks the financial ability to provide continuing adequate care to Respondent’s residents;* c) Respondent has been cited for one (1) or more cited Class I deficiencies twice; d) Respondent has been cited for (3) or more cited Class II deficiencies*; and e) Respondent has been cited for five (5) or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified®* twice. iii. Accordingly, the Agency has independent and multiple grounds to revoke Respondent’s license pursuant to section 429.14(1)(k) for Respondent’s violations, and repeat violations, of same. * Td. § 429,14(1)(a). 83 Id, § 429.14(1)(b). 541d, § 429.14(1)(e)(1). # Id. § 429.14(1}(e)(2). 6 Id. § 429.14(1)(€)(3). Page 69 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 2011005046/2011005313/201 1005672 g. The seventy-six (76) total cited violations since June 2009 establish clearly that Respondent has engaged in a demonstrated pattern of deficient performance, in violation of section 408.815(1)(d). 161, That although most of Respondent’s numerous violations subject Respondent to license revocation at the Agency’s discretion, Respondent’s violation of the following also mandates independent grounds for license revocation: a. “The agency shall deny or revoke the license of an assisted living facility that has two or more class I violations that are similar or identical to violations identified by the agency during a survey, inspection, monitoring visit, or complaint investigation occurring within the previous 2 years. 987 b. That Respondent violated section 429.14(4) as follows: i. The first Class I deficiency. Pursuant to a Monitoring Visit Survey on 05/12/11, Respondent was cited for a widespread State Class I violation of Resident Care Standards (Tag: A718), by virtue of Respondent’s failure to provide a safe and decent environment to residents residing at Respondent’s facility and Respondent’s failure to ensure Respondent’s residents were safe from abuse and neglect, contrary to section 429,28(1); The second Class I deficiency. Pursuant to a Monitoring Visit and Complaint Investigation Survey (CCR No. 2011005231) on 05/16/11, Respondent was cited for a widespread State Class I violation of Resident Care Standards (Tag: A718), by virtue of Respondent’s failure to provide a safe and decent environment to residents residing at Respondent’s facility and Respondent’s failure to ensure 57 Id. § 429.14(4) (emphasis added). Page 70 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos, 201 1005046/201 10053 13/201 1005672 iii. Respondent’s residents were safe from abuse and neglect, contrary to section 429,28(1); Similar_or_ identical violations identified _during the previously two (2) years. Respondent was cited for the following similar or identical violations identified and cited by the Agency during the previous two (2) years: 1) 2) 3) 4) 88 See Exhibit “S_1”. % See Exhibit “S 2”, °° See Exhibit “S_5”. 9! See Final Order, Exhibit 2, p.3,95. On 06/29/09, Respondent was cited for Resident Care Standards (Tag: A718) pursuant to the Complaint Investigation Survey (CCR No. 2009006312); On 08/10/09, Respondent was cited for two (2) Resident Care Standards deficiencies: (Tags: A718 and A708) pursuant to the Revisit Survey to Complaint Investigation (CCR No. 20090066312) from 06/29/09;°9 On 06/04/10, Respondent was cited for five (5) Resident Care Standards deficiencies: (Tags: A708, A710, A720, A721, and A724);”° and The Final Order dated 01/12/11 (Case No. 2009010095/09-1147PH) referenced herein above was an administrative action dealing, inter alia, with Tag A718 from the 06/29/09 and 08/10/09 surveys referenced herein. In the Settlement Agreement attached thereto, Respondent admitted the facts and legal conclusions raised therein.”! Page 71 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/20110053 13/2011005672 | ; c. That accordingly, the aforementioned establish Respondent’s violation of section 429.14(4) and thus, that Respondent is subject to mandatory license revocation as a result thereof. WHEREFORE, the Agency intends to revoke Respondent’s license to operate an ALF in the State of Florida, pursuant to sections 429.19(2)(a), 429.19(2)(b), 408.815(1), 429.14(1)(a), : 429,14(1)(b), 429.14(1)(e)(1), 429.14(1)(e)(2), 429.14(1)(h), 429.14(1)(k), and 429.14(4). Respectfully submitted this 1st day of June, 2011. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION . The Sebring Building . . 525 Mirror Lake Dr. N., Suite 330 ! . St. Petersburg, Florida 33701 to ‘Telephone: (727) 552-1942 Facsimile: (727) 552-144! @AHCA.MyFlorida.com E-mail: Thomas.As . Asbury, Esq. Fla/ Bar No. 567523 : AGENCY NOTIFICATION OF A LICENSE SUSPENSION OR REVOCATION, OR DENIAL | OFA LICENSE RENEWAL, SHALL BE POSTED AND VISIBLE TO THE PUBLIC AT THE FACILITY. Respondent is notified that it has a right to request an administrative hearing pursuant to section 120.569, Florida Statutes. Respondent has.the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the Election of Rights form, attached hereto and incorporated herein by this reference. a All requests for hearing shall be made to the Agency and delivered to: Agency for Health Care Administration, ATTN: Agency Clerk, 2727 Mahan Drive, Bldg. #3, MS #3, Tallahassee, Florida 32308; Telephone (850) 412-3630. ® td. § 429.14 (7). Page 72 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 2011005046/2011005313/201 1005672 RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS ADMINISTRATIVE COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN ‘THIS | ADMINISTRATIVE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY RESULTING THEREFROM. CERTIFICATE OF SERVICE J HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt No. 7008 0500 0001 9560 9640 on the 1stday of June, 2011 to Respondent, ATTN: Ilfrenise Charlemagne, Registered Agent, 17521 SW td Court, Palmetto Bay, Florida 33157 and: by U.S. Mail to Respondent, ATTN: nise Charlemagne, Administrator, 220 5th Ave. N., St. Petersburg, Florida 33701. Thomas F, Asbury, Esq. Senjor Attorney Copies furnished to: Kathleen Varga, AHCA, Health Facility Evaluator Supervisor (Interoffice) Page 73 of 73 AGENCY VS. HILCREST RETIREMENT RESIDENCE Case Nos. 201 1005046/20110053 13/201 1005672 USPS - Track & Confirm Ea UNITED STATES POSTAL SERVICE® Home | Help | Signin Track & Confirm ~ AHCA vs. Hilcrest ALF i | Search Results Case Nos. 2011005046/2011005313/2011005672 Label/Receipt Number: 7008 0500 0001 9560 9640 EE Service(s): Certified Mail™ Track & Confirm Status: Arrival at Unit Enter Label/Receipt Number. Your item arrived at 7:08 am on June 03, 2011 in MIAMI, FL 33197. Notification Options Track & Confirm by email http://trkenfrm1.smi.usps.com/PTSInternetWeb/InterLabelInquiry.do [06/14/2011 7:39:18 AM]

Docket for Case No: 11-003330

Orders for Case No: 11-003330