STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, ; Case Nos. 2015012605 Petitioner, ; 2016009811 : 2016009813 v. : : 2016009815 . 2016006006 2016008240 2016004117 CRISTAL PALACE RESORT PB LC., 2016003289 Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Cristal Palace Resort PB LC (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2016), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to revoke its licensure to operate an assisted living facility in the State of Florida and to impose an administrative fine in the amount of seventeen thousand dollars ($17,000.00) and survey fees of two thousand dollars ($2,000.00), for a total sum of nineteen thousand dollars ($19,000.00) based upon two (2) Class II deficiencies, six (6) uncorrected Class III deficiencies, and seven (7) unclassified deficient practices, JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 20.42, 120,60, and Chapters 408, Part II, and 429, Part I, Florida Statutes (2016). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living © facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code, respectively. 4, Respondent operates a two hundred fifty-two (252) bed assisted living facility located at 1881 Palm Bay Road, Palm Bay, Florida 32905, and is licensed as an assisted living facility, license number 12660, with Extended Congregate Care specialty licensure. 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 I 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. That Florida law provides: An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C, (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual. (c) General awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such ’ as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in subsection S8A-5,0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. Rule 58A-5.0182(1), Florida Administrative Code. 8. That on August 26, 2015, the Agency completed a complaint (CCR# 2015004890) survey of Respondent’s facility. 9. That based upon the review of records, observation, and interview, Respondent failed to provide care and services, including personal supervision, appropriate to the needs of residents telating to, inter alia, the provision of medication in accord with physician orders and the clarification of physician orders, the same being contrary to the requirements of law. 10. That Petitioner’s representative observed resident number five (5) on August 12, 2015, at 12:30 PM, and noted the resident’s blood glucose reading reflected the resident’s blood sugar level as “Hi,” and the blood sugar level, when retaken was five hundred fifteen (515). 11. That Petitioner’s representative reviewed Respondent’s records related to resident number five (5) and noted as follows: a. A physician’s order, dated August 6, 2015, directed medium sliding insulin scale, check blood sugar before meals and at bedtime. b. Absent from the records was any sliding scale to be utilizing in calculating the amount of insulin to be utilized based upon identified blood sugar levels. c. Absent from the records was any indication that Respondent attempted to clarify the August 6, 2015, physician's order. d. The resident's morning blood sugar was one hundred ninety-two (192), but documentation to indicate if sliding scale insulin was required at that time was not found in the resident's medical record. e. The resident’s Assisted Living Facility Health Assessment Form, Form 1823, dated August 6, 2015, indicated diagnoses of diabetes, retinopathy, neuropathy, chronic obstructive pulmonary disease and coronary artery bypass surgery. f. A physician’s order dated August 6, 2015, also directed Humalog Insulin 10 units with each meal was to be given g. The resident’s Medication Observation Record (MOR) for August 2015 was reviewed and documented as follows: | i. The record did not contain any documentation that sliding scale insulin was given to the resident. ii, The back of the record contained documentation dated August 11, 2015, no time documented that Humalog insulin 20 units was given to the resident by unlicensed staff upon the resident's request. 12. That Respondent called emergency services, 911, on August 12, 2015, at approximately 1:30 PM. 13. That emergency medical technicians (EMT - paramedics) arrived at the facility to provide emergency care and, when the resident's blood sugar was taken again, it continued to be above the five hundred (500) ranges, which was a medical emergency and could be caused by not receiving an adequate amount of insulin. 14. That Petitioner’s representative interviewed Respondent’s marketing director regarding resident number five (5) on August 12, 2015, at approximately 1:00 PM, who indicated: a. The resident was recently admitted from a nursing home in another county. b. The facility did not have a nurse around the clock 24/7 and the resident needed a lot of care. c, Was not aware that staffs were not following the physician’s orders related to diabetic treatment, . 15. That the above reflects the failure of Respondent to provide care and services, including personal supervision, appropriate to resident needs including but not limited to the failure to ensure that prescribed medications for treatment of diabetes are provided in accord with physician orders. 16. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 17. That the same constitutes a Class II offense as defined in Florida Statute 429.19(2)(b) (2013). . WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2014). COUNT IL 18. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 19. That Florida law provides “(1). ADMINISTRATORS. Every facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the — facility including the management of all staff and the provision of appropriate- care to all residents as required by Chapters 408, Part II, 429, Part I, F.S. and Rule Chapter 59A-35, FAC, and this rule chapter.” Rule 58A-5.019(1), Florida Administrative Code. 20. That on October 16, 2014, the Agency completed a re-licensure and two (2) complaint surveys of Respondent’s facility. . 21. That based upon the review of records, observation, and interview, Respondent’s administrator failed to supervise an administrator the operation and maintenance of the facility including the management of all staff and the provision of appropriate care to all residents as required by law. 22. That Count I of this Administrative Complaint is incorporated herein as though fully recited herein. | 23. That Respondent’s administrator failed to ensure that a licensed nurse was available to administer medications to a resident as required by law, see, Rule 58A-5.0185(4), Florida Administrative Code; as evidenced by the following: a, The medication observation record for resident number five (5) documented on the reverse that on August 8, 2015, Humalog insulin 20 units was administered to the resident upon the resident's request by the unlicensed staff. b. A physician's order dated August 6, 2015, revealed that Humalog Insulin 10 units were to be given with each meal. c. The resident’s Assisted Living Facility Health Assessment Form, Form 1823, dated August 6, 2015, indicated diagnoses of diabetes, retinopathy, neuropathy, chronic obstructive pulmonary disease and coronary artery bypass surgery. d, On August 12, 2015, at approximately 12:45 PM, Respondent’s marketing director said she was not aware the unlicensed staffs were administering insulin. e. The resident’s August 2015 medication observation record for the resident documented Humalog insulin 10 units under skin before a meal at 8:00 AM on August 8, 2015, a Saturday, was signed by unlicensed staff whose initials were in the box. f. Respondent’s nutse “C” indicated that he only worked during the week and did not work on the weekend. 24. That Respondeit’s administrator failed to ensure that it maintained accurate and up-to-. date medication observation records for residents. as required by law, see, Rule 58A-5.0185(5), Florida Administrative Code; as evidenced by the following: a. Petitioner’s representative observed Medication Pass on August 12, 2015, at” approximately 1:15 PM, and noted Tylenol 325 milligrams 2 tablets every 6 hours as needed for pain was given by the nurse to resident number five (6). b. The August 2015 medication observation records for resident number five (5) did not reflect the administration of the Tylenol as given on August 12, 2015, at approximately 1:15 PM. c. On August 12, 2015, at approximately 4:30 PM, Respondent’s marketing director indicated that she was not aware the medication observation record for resident number five (5) was not up to date and the medication was not charted. 25. That Respondent’s administrator failed to ensure that medications were maintained in a locked cabinet, locked cart, or other locked storage receptacle, room, or area at all times as required by law, see, Rule 58A-5.0185(6), Florida Administrative Code; as evidenced by the following: a On August 12, 2015, at approximately 12:30 PM, Petitioner’s representative observed Humalog insulin, Lantus insulin in an unlocked refrigerator in the room of resident number five (5). Resident number five (5) was sent to the hospital on August 12, 2015, at approximately 1:30 PM, but the insulin was not secured. Respondent’s marketing director indicated on August 12, 2015, at approximately 12:45 PM, that she was not aware the insulin was not secured. 26. That Respondent’s administrator failed to ensure that it ensured that staff were not assigned duties that were not consistent with their training, education, and qualifications as required by law, see, Rule 58A-5.019(2)(b), Florida Administrative Code; as evidenced by the following: a. The August 2015 medication observation record for resident. number five (5) _ documented by initials that on August 11, 2015, no time noted, Humalog insulin 20 units was given to the resident upon the resident's request. A physician's order, dated August 6, 2015, prescribed Humalog Insulin 10 units to be given with each meal. The resident’s August 2015 medication observation record documented Humalog insulin 10 units under skin before a meal at 8:00 AM on August 8, 2015, was signed by unlicensed staff, whose initials were in the box. Respondent’s nurse “C” indicated that he only worked during the week and did not work on the weekend. — . 27.. That Respondent’s administrator failed to ensure that it maintained a written work schedule reflecting the facility’s twenty-four (24) hour staffing as required by law, see, Rule 58A-5.019(3)(c), Florida Administrative Code; as evidenced by the following: a. When Respondent’s staffing schedule for August 2015, from the third through twelfth, was attempted to be reviewed, there was no staffing schedule available for review. | b. There was no staff schedule for May 2015 for review. c. Respondent’s marketing director indicated on August 12, 2015, at approximately 11:00 AM, that she did not have access to the staffing schedules. 28. That Respondent’s administrator failed to ensure that trained dietary staffs were available to prepare meals and ensure that food service was provided in a safe manner as required by law, see, Rule 58A-5.020(1), Florida Administrative Code; as evidenced by the following: a. That Respondent’s marketing director indicated on August 12, 2015, at approximately 11:45 AM, that the cook did not show up to prepare lunch. She said she was not aware the cook was not going to be available to prepare lunch and dinner that day. b. Petitioner’s representative observed the following in Respondent’s walk-in freezer on August 12, 2015, at approximately 11:45 AM: i. There was food not labeled and/or past it’s identified expiration date. ii.” The meatloaf was dated August 2, 2015; the sweet potatoes were not labeled; the rice pilaf was dated July 28, 2015; the rice was labeled July 31, 2015; the fruit was labeled August 2, 2015; and there were three (3) containers that were not labeled. c. Respondent’ marketing director indicated on August 12, 2015, that the facility’s health department inspection reports were locked in the administrator's desk and she did not have access to them. d. A Health Department inspection report dated August 13, 2015, contained the following: a. There was a bag of chicken sitting out on the counter to thaw. b. There were some food containers that were not labeled and/or dated. c. There were some containers of potentially hazardous foods that were past the seven (7) day window and some that were past the expiration date on the packaging. " d. The walk-in freezer was shut down at the at the time of the inspection and not able to be opened. e. The inspection was unsatisfactory. 29. That Respondent’s administrator failed to ensure that it provided a safe living environment for residents as required by law, see, Rule 58A-5.023(3), Florida Administrative Code; as evidenced by the following: a, A Health Department report dated August 3, 2015, documented that there was a "small amount of what appeared to be mold" behind one of the washing machines, The area needed to-be thoroughly cleaned and the mold removed. b. The Health Department inspection report was unsatisfactory. c. On August 12, 2015, Respondent’s marketing director indicated at approximately 10:30 AM that the mold chad been removed and the Health Department had not returned for a re-inspection. 10 ad ~— a Petitioner’s representative observed on August 12, 2015, at approximately 1:30 PM, that there were no lights in the north stairwell, between the first and second floors near rooms 135 and 235. The residents had access to the stairwell and it was not safe to use the stairs. Between the fourth and fifth floors, two (2) lights were not working. e. On August 12, 2015, Respondent’s marketing director indicated at approximately 1:30 PM that she was not aware there were no lights in the stairwell. 30. That Respondent’s administrator failed to ensure that it provided nursing staff for an extended congregate care resident as required by law, see, Rule 58A-5 .030(4), Florida Administrative Code; as evidenced by the following: . a. On August 12, 2015, at approximately 12:00 PM Petitioner’s representative noted. resident number five (5) had oxygen on per nasal cannula at three (3) liters/minute. b. On August 12, 2015, at approximately 12:30 PM, resident number five (5) indicated that the resident was not able to bend over to reach the oxygen concentrator and “needed help with the oxygen. . c. The Assisted Living Facility Health Assessment Form, Form 1823, dated August 6, 2015, indicated diagnoses of diabetes, retinopathy, neuropathy, chronic obstructive pulmonary disease and coronary artery bypass surgery, and further indicated the resident used a Continuous Positive Airway Pressure (CPAP) machine at night. d. Respondent’s marketing director indicated on August 12, 2015, at approximately 4:00 PM, that the facility did not have nursing staff twenty-four (24) hours a day to provide ECC services for oxygen and CPAP machine use. 31. That Respondent’s administrator failed to ensure that extended congregate care services were authorized by a physician’s order, recorded in progress notes, and completed in accord with ll the resident’s service plan as required by law, see, Rule 58A-5.030(8), Florida Administrative Code; as evidenced by the following: 32, 33. a. Petitioner’s representative noted on August 12, 2015, at approximately 12:00 PM that resident number five (5) had oxygen on per nasal cannula at three (3) liters/minute. On August 12, 2015, at approximately 12:30 PM, resident number five (5) indicated the resident was not able to bend over to reach the oxygen concentrator and needed help with the oxygen: . The resident’s Assisted Living Facility Health Assessment Form, Form 1823, dated August 6, 2015, indicated diagnoses of diabetes, retinopathy, neuropathy, chronic obstructive pulmonary disease and coronary artery bypass surgery. The 1823 also indicted the resident used a CPAP machine at night. The resident’s record contained no physician's order for the use of the oxygen, there were no progress notes, and a service plan had not been developed. On August 12, 2015, at approximately 4 PM, Respondent’s marketing director stated she was not aware there was no physician's order for the use of the oxygen, not aware the resident was not put on ECC services, and not aware the resident did not have a service plan or progress notes for the use of oxygen. That Count III is incorporated by reference as if fully recited herein. That Respondent’s administrator failed to ensure that it posted an activity calendar in a common area where residents congregate as required by law, see, Rule 58A-5.0182(2)(c), Florida Administrative Code; as evidenced by the following: a. On August 12, 2015, at approximately 10:30 AM, Petitioner’s representative could not locate an activities calendar in any common area where residents congregate. b. On August 12, 2105, at approximately 10:30 AM, Respondent's marketing director Stated the facility did not have an activities calendar. 34. That Respondent’s administrator failed to ensure that the Agency was notified of a change of use in licensed space. a. That Petitioner’s representative observed on August 12, 2015, personal belongings of Respondent’s staff members in resident rooms 101, 103, and 109. _ . b. Respondent’s marketing director indicated, at approximately 11:30 AM on August 12, 2015, that she stayed at the facility during the week, and the administrator and a family member stayed in room 109. c. Respondent’s staff member “C” indicated, at approximately 21:30 PM on August 12, 2015, that he stayed in a room during the week and went home on the weekends. | . 35. | That Respondent’s administrator failed to ensure that the Facility was accessible to Agency personnel for inspection as required by law, see, Section 408.811, Florida Statutes . (2015). a. Respondent’s representatives attempted to conduct a complaint inspection on August 25, 2015, and from 8:10 PM to 8:25 PM the front doors to the facility were locked. b. Respondent’s representative attempted phone calls to the facility at the number of record and the phone number provided to the Agency did not work. c. On August 26, 2015, at approximately 8:50 PM, in a phone interview with the marketing director, she stated that the door to the facility was always open until 10:00 PM, and that the facility had communication issues with the phone line and the number was changed. She was not aware the Agency was unable to contact the facility. 36. That Respondent’s administrator failed to ensure that it honored resident rights to a safe and decent living environment, failed to honor resident rights to access to personal funds, and failed to honor resident rights related to notice of discharge as required by law, see, Section 429.28, Florida | Statutes (2015) and Rule 58A-5.0181, Florida Administrative Code; as evidenced by the following: | a. A Health Department inspection report dated August 3, 2015, documented that there was "a small amount of what appeared to be mold" behind one of the washing machines.” It noted the area needed to be thoroughly cleaned and the mold removed. The inspection report was unsatisfactory. b. Respondent’s marketing director indicated on August 12, 2015, at approximately 10:30 AM, that the mold had been removed and the Health Department had not returned for a re-inspection. . c. On August 12, 2015, at approximately 1:30 PM, no lights were in the north stairwell, between the first and second floors, near rooms 135 and 235. Residents had access to the stairwell and it was not safe to use the stairs. In between the fourth and fifth floors, two (2) lights were not working. d. Respondent’s marketing director indicated on August 12, 2015, at approximately 1:30 - PM indicated that she was not aware the lights in the stairwell were not working. e. The Agency received information that residents numbered one (1), two (2), and three (3), were not given a forty-five (45) day notice of their discharge and review of the admission/discharge log revealed the residents were discharged on May 26, 2015. 14 f. Respondent’s marketing director indicated on August 12, 2015, at approximately 1:00 PM indicated that the residents were immediately discharged when the facility closed down until July 2015. g. On August 12, 2017, at approximately 10:30 AM, resident number four (4) stated the resident wanted to get somie money out of the resident’s personal funds that the facility was holding for the resident and was unable to do so. h. Respondent’s marketing director indicated on August 12, 2015, at approximately 11:00 AM indicated that Respondent’s administrator was out of the building at training, had the key to where the money was held, and she did not have a key. 37. That the above reflects the failure of Respondent’s administrator to meet the management and care minimum requirements of law. 38. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations, 39. That the same constitutes a Class II offense as defined in Florida Statute 429.19(2)(b) (2013). WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2014). COUNT II 40. That on August 26, 2015, the Agency completed a complaint (CCR# 2015004890) survey of Respondent’s facility. 41. . Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2015). 42. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her - to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2015). 43. Under Florida law, every 5 years following his or her licensure, employment, or entry into acontract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled i in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s.943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more 17 than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. § 408.809(2), Fla. Stat. (2015). | 44, Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2015). | 45. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2015). 46. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of - employment. § 435.06(2)(a)-(d), Fla. Stat. (2015). 47. Under Florida law, any employee who refusés to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. § 435.06(3), Fla. Stat. (2015). 48. Under Florida law, all staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S. ... Rule 58A- 5.019(3)(a), Florida Administrative Code. 19 49, Under Florida law, “Staff” means any person employed by a facility; or contracting witha 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. Rule 58A-5.0131(34), Florida Administrative Code. 50. Based upon record review and interview, the Respondents failed to ensure that the Facility staff had the required background screening or exemption for four (4) of nine (9) sampled staff members, the same being contrary to law, 51. That Petitioner’s representative telephonically interviewed Respondent’s staff member “C” on August 12, 2015 at 4:030 PM who indicated that she had been employed at another assisted living facility six (6) months prior to becoming employed by Respondent. 52. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted the following; a. Staff member “E:” i. The staff member was a chef hired on July 28, 2015. ii. The Agency’s background screening website reflected that a new screening was required. ) iii, No current background screening was presented. b. — Staff member “F:” i, The staff member was a caregiver hired July 28, 2015. ii. The Agency’s background screening website reflected Agency review was required. iii, No current background screening was presented. 20° c. Staff member “H:” i, The staff member works in housekeeping with access to residents, their living areas, and property. ii. No hire date is reflected iii. The file lacked any Level 2 criminla background screening. iv. The Agency’s background screening website reflected the staff memebr had not undergone criminal background screening. 53. That Petitioner’s representative interviewed Respondent’s administrator on August 12, 2015, who confirmed that the above described staff did not meet the criminal background screening requirements of law and that Respondent did not have a copy of the latest background screening for staff member “C.” 54. That Florida law requires that a new Level II criminal histroy background screening be obtained where there has been a break of employment in a position requiring screening for a period exceeding ninety (90) days. 55. That providers.are required to obtain and maintain such records as criminal history background screening for Agency review in personnel records. See, Rule 58A-5.024(2\(a), Florida Administrative Code. 56. That Respondent allowed individuals, in an employment or volunteer role, access to residents, their records, and property, without having obtained a criminal history background check on the individual, the same being contrary to the mandates of law. 57. The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2015). 21 58. Under Florida law, 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 for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, 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 Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2015). 59. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class II, or class TV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of one thousand five hundred dollars ($1,500.00) against the Respondent. COUNTIV 60. The Agency re-alleges and incorporates paragraphs () through (5) and Counts I through Ill as if fully set forth herein. 61. That pursuant to Section 429.19(7), Florida Statutes (2015), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a 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 Section 429.283)(c), Florida Statues (2015), to verify the correction of the violations. | 62. That Respondent was subject to the citation of one or more Class II deficient practices or the citation of a violation that was subject of the complaint which requires the imposition of a survey pursuant to law. See, Section 429.28(3)(c), Florida Statues (2015). 63. That Respondent is therefore subject to a survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2015). . WHEREFORE, the Agency intends to impose a survey fee of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(10), Florida Statutes (2015). COUNT V 64. The Agency re-alleges and incorporates paragraphs (1) through (5 as if fully set forth herein. 65. That pursuant to Rule 58A-5.024(3), Florida Administrative Code: RESIDENT RECORDS. Resident records must be maintained on the premises and include: (c) Any orders for medications, nursing services, therapeutic diets, do not resuscitate orders, or other services to be provided, supervised, or implemented by the facility that require a health care provider’s order. 66. That on October 21, 2015, the Agency completed a complaint (CCR# 2015007966) survey of Respondent’s facility. 67, That based upon the review of records, observation, and interview, Respondent failed to obtain or maintain a physician’s order for therapeutic diet that reflects the dietary limitations prescribed, the same being contrary to the requirements of law. “23 68. That Petitioner’s representative reviewed Respondent’s records related to resident number four (4) during the survey and noted as follows: a. The resident’s Health Assessment Form, Form 1823, dated August 26, 2015, - indicated the resident suffered from diagnoses including Non-Insulin Dependent Diabetes Mellitus. b. An order documented a calorie controlled diet. c. Absent from the record was a physician’s order, or clarification, which reflected a clarification as to the calorie limitations sought by the prescribing physician. 69. That Petitioner’s representative interviewed Respondent’s administrator regarding resident number four (4) on October 21, 2015, who indicated that Respondent had failed to obtain clarification of the calorie controlled diet prescribed for the resident. 70, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 71. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 72. That Florida law requires that cited deficient practice be corrected within thitty 30) days. 73. That on March 1, 2016, the Agency completed a re-visit to the October 21, 2015, complaint survey of Respondent’s facility. 74, That based upon the review of records, observation, and interview, Respondent failed to obtain or maintain a physician’s order for therapeutic diet that reflects the dietary limitations _ prescribed, the same being contrary to the requirements of law. 24 75. That Petitioner’s representative reviewed Respondent’s records related to resident number four (4) during the survey and noted as follows: a. The resident’s Health Assessment Form, Form 1823, dated August 26, 2015, indicated the resident suffered from diagnoses including Non-Insulin Dependent Diabetes Mellitus. b. An order documented a calorie controlled diet. c. Absent from the record was a physician’s order, or clarification, which reflected a clarification as to the calorie limitations sought by the prescribing physician. 76. That Petitioner’s representative interviewed Respondent’s manager on March 1, 2016, regarding resident number four 4) who indicated at 3:00 PM that she needed time to locate the order and at 4:00 PM that she was awaiting a facsimile transmission. 77. That Petitioner’s representative allowed Respondent to submit an appropriate dietary order for resident number four (40 by electronic mail, however the electronic mail received by the Petitioner’s representative at 8:41 PM on March 1, 2016, did not contain an order clarifying the resident’s caloric needs. | 78. That Respondent had failed to obtain clarification of the calorie controlled diet prescribed for the resident. 79, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 80, That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 81. That the same constitutes an uncorrected Class LIT deficiency as defined by law. 25 WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2015). . | COUNT VI 82. The Agency re-alleges and incorporates paragraphs (1) through (5) and Counts I through II as if fully set forth herein, 83. That pursuant to Section 429.19(7), Florida Statutes (2015), in addition to any . administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a 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 Section 429.28(3)(c), Florida Statues (2015), to verify the correction of the violations. 84. That Respondent was subject to the citation of one or more Class II deficient practices or the citation of a violation that was subject of the complaint which requires the imposition of a survey pursuant to law. See, Section 429.28(3)(c), Florida Statues (2015). 85. That Respondent is therefore subject to a survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2015). WHEREFORE, the Agency intends to impose a survey fee of five hundred dollars. ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(10), Florida Statutes (2015). . COUNT VII | 86. | The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth . herein. 26 87. That Florida law provides Assistance with self-administration of medication includes: ; (a) Taking the medication, in its previously dispensed, properly labeled container, from where it is stored, and bringing it to the resident. (b) In the presence of the resident, reading the label, opening the container, removing a prescribed amount of medication from the container, and closing the container. (c) Placing an oral dosage in the resident’s hand or placing the dosage in another container and helping the resident by lifting the container to his or her mouth. (d) Applying topical medications. . (e) Returning the medication container to proper storage. . (f) Keeping a record of when a resident receives assistance with self-administration under this section. § 429.256(3), Florida Statutes (2014). 88. That Florida law provides: (3) ASSISTANCE WITH SELF-ADMINISTRATION, (a) Any unlicensed person providing assistance with self administration of medication must be 18 years of age or older, trained to assist with self administered medication pursuant to the training requirements of Rule 58A-5.0191, F.A.C., and must be available to assist residents with self-administered medications in accordance with procedures described in Section 429,256, F.S. and this rule. (b) In addition to the specifications of Section 429.256(3), F.S., assistance with self- administration of medication includes verbally prompting a resident to take medications as prescribed. (c) In order to facilitate assistance with self-administration, trained staff may prepare and make available such items as water, juice, cups, and spoons. Trained staff may also return unused doses to the medication container. Medication, which appears 1 to have been contaminated, must not be returned to the container. (d) Trained staff must observe the resident take the medication. Any concerns about the resident’s reaction to the medication or suspected noncompliance must be reported to the resident’s health care provider and documented in the resident’s record. Rule 58A-5.0185(a through d), Florida Administrative Code. 89, That on December 17, 2015, the Agency completed a complaint survey of Respondent’s facility. 27 "90. That based upon observation and interview, Respondent failed to ensure that the assistance with self-administration of medications met the minimum requirements of law. 91. That Petitioner’s representative observed Respondent’s staff member “A” assisting with self-administration of medication during the survey at 1:00 PM and noted as follows: a, The staff member-wore gloves and checked a resident’s medication observation “record. b, The staff member retrieved a medication from the cart. c. A resident stood by the medication cart. d. The staff member told the resident “This is your Oxybutynin,” and gave the resident the medication ina cup. e. The resident ingested the pill. f, The staff member then retrieved another medication from the cart, poured the pill ina cup, and told the resident “Here is your morphine sulfate.” g. The staff member observed the resident take the medication and then the staff member signed the medication observation record. 92. That Petitioner’s representative interviewed Respondent’s director of nursing regarding the above practice on December 17, 2017 at 1:30 PM who offered no comments. 93. That the above reflects Respondent’s failure to ensure that assistance with self- administration of medications was performed within sriinimuma requirements of Jaw including, but not limited to, retrieving the medication from its container and reading the label in the presence of the resident. 28° 94, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 95, That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2013), and Respondent was cited with a Class II deficient practice. : 96. That Florida law requires that cited deficient practice be corrected within thirty (30) days. 97. That on May 24, 2016, the Agency completed a follow-up to the January complaint survey of Respondent’s facility. . | . 98. That based upon observation and interview, Respondent failed to ensure that the assistance with self-administration of medications met the minimum requirements of law. 99. That Petitioner’s representative observed Respondent’s staff member “J” assisting with self-administration of medication during the survey at 1:45 PM and noted as follows. a. The staff member sanitized her hands. b. The staff member reviewed the medication observation record. and retrieved the medications. c. The staff member placed the medications in a small plastic cup, secured the medication containers and brought the cup with the medications to resident number three (3), who was in the resident’s room. d. The staff member told the resident "This is your Morphine, Baclofen and Tramadol." | e. The resident requested Lorazepam. f. The staff member told her “Okay,” since it was as needed /as requested medication. 29 oe Mew g.- The staff member then proceeded to follow the same procedure. The staff got the Lorazepam and put it inside a small plastic cup. She secured the medication and brought the medication cup to the resident. h. The staff member then signed the medication observation record. 100. That Petitioner’s representative interviewed Respondent’s staff member . on May 25, 2016 at 2:00 PM who indicated that she did not know she was required to read the medication label in the presence of the resident. 101. That Petitioner’s representative interviewed Respondent’s assistant administrator regarding the above practice on May 25, 2016 at 3:00 PM who offered no comments. 102. That the above reflects Reéspondent’s failure to ensure that assistance with self- administration of medications was performed within minimum requirements of law including, but not limited to, retrieving the medication from its container and reading the label in the presence of the resident. . 103. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 104. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2013), and Respondent was cited with a Class III deficient practice. 105. That the same constitutes an uncorrected Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2015). 30 COUNT VII 106. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth, herein, 107. That Florida law provides: (3) RESIDENT RECORDS. Resident records must be maintained on the premises and include: (a) Resident demographic data as follows: 1. Name; 2. Sex; 3, Race; 4. Date of birth; 5. Place of birth, if known; 6. Social security number; 7. Medicaid and/or Medicare number, or name of other health insurance carrier; 8. Name, address, and telephone number of next of kin, legal representative, or individual designated by the resident for notification in case of an emergency; and - 9. Name, address, and telephone. number of the health care provider and case manager, if applicable. (b) A copy of the Resident Health Assessment form, AHCA Form 1823 described in Rule 58A-5.0181, F.A.C. (c) Any orders for medications, nursing services, therapeutic diets, do not resuscitate orders, or other services to be provided, supervised, or implemented by the facility that require a health care provider’s order. (d) Documentation of a resident’s refusal of a therapeutic diet pursuant to Rule 58A-5.020, F.A.C., if applicable. , (e) The resident care record described in paragraph 58A-5,0182(1)(e), F.A.C. (f) A weight record that is initiated on admission. Information may be taken from AHCA Form 1823 or the resident’s health assessment. Residents receiving assistance with the activities of daily living must have their weight recorded semi- annually. (g) For facilities that will have unlicensed staff assisting the resident with the self- administration of medication, a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident’s contract. : (h) For facilities that manage a pill organizer, assist with self-administration of medications or administer medications for a resident, copies of the required medication records maintained pursuant to Rule S8A-5.0185, F.A.C. (i) A copy of the resident’s contract with the facility, including any addendums to the contract as described in Rule 58A~-5.025, F.A.C. G) For a facility whose owner, administrator, staff, or representative thereof, 31 108. facility. serves as an attorney in fact for a resident, a copy of the monthly written statement of any transaction made on behalf of the resident as required in Section 429.27, FS. (k) For any facility that maintains a separate trust fund to receive funds or other property belonging to or due a resident, a copy of the quarterly written statement of funds or other property disbursed as required in Section 429.27, F.S. (1) If the resident is an OSS recipient, a copy of the Department of Children and Families form Alternate Care Certification for Optional State Supplementation (OSS), CF-ES 1006, October 2005, which is hereby incorporated by reference and available for review at: http://www. flrules.org/Gateway/reference.asp?No=Ref- 04004. The absence of this form will not be the basis for administrative action against a facility if the facility can demonstrate that it has made a good faith effort to obtain the required documentation from the Department of Children and Families. (m) Documentation of the appointment of a health care surrogate, health care proxy, guardian, or the existence of a power of attomey, where applicable. (n) For hospice patients, the interdisciplinary care plan and other documentation that the resident is a hospice patient as required in Rule 58A-5.0181, F.A.C. (0) The resident’s Do Not Resuscitate Order, DH Form 1896, if applicable. (p) For independent living residents who receive meals and occupy beds included within the licensed capacity of an assisted living facility, but who are not receiving any personal, limited nursing, or extended congregate care services, record keeping may be limited to the following at the discretion of the facility: 1. A log listing the names of residents participating in this arrangement; 2. The resident demographic data required in this paragraph, 3. The health assessment described in Rule 58A-5.0181, F.A.C.; 4. The resident’s contract described in Rule 58A-5.025, F.A.C.; ‘and 5. A health care provider’s order for a therapeutic diet if such diet is prescribed and the resident participates in the meal plan offered by the facility. (q) Except for resident contracts, which must be retained for 5 years, all resident records must be retained for 2 years following the departure of a resident from the facility unless it is required by contract to retain the records for a longer period of time. Upon request, residents must be provided with a copy of their records upon departure from the facility. (r) Additional resident records requirements for facilities holding a limited mental health, extended congregate care, or limited nursing services license are provided in Rules 58A-5.029, 58A-5.030 and 58A-5.031, F.A.C., respectively. Rule 58A~5.024(3)), Florida Administrative Code. That on December 17, 2015, the Agency completed a complaint survey of Respondent’s 32 109. That based upon the review of records and interview, ‘Respondent failed to resident records were maintained as required by law for one (1) of eleven (11) sampled residents including a medication observation record for a resident requiring assistance with self- administration of medications and or a health care provider’s order discontinuing the need. for medication assistance, the same being contrary to the requirements of law. 110. That Petitioner’s representative reviewed Respondent’s records related to resident number four (4) during the sutvey and noted the following: a. The resident was admitted to the Respondent facility on September 23, 2015, b, The resident’s health assessment form, Form 1823, dated August 25, 2015, and an updated health assessment dated December 5, 2015, executed by the resident’s health care provider, both indicated that the resident required assistance with self- administration of medications. Cc, There was no medication observation record maintained for the resident for the month of October 2015. d. There was no health care provider’s order indicating that the resident no longer required assistance with the self-administration of medications. 111. That Petitioner’s representative interviewed Respondent‘s director of nursing on December 17, 2015 at 1:30 PM regarding the records of resident number four (4) and the director indicated: a. She was unable to locate the medication observation record for the resident. b. The resident self-administered medications. 112. That the above reflects Respondent’s failure to obtain or maintain records related to resident care and services as required by law, 33 113. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly ot potentially threaten the physical or emotional health, safety, or security of clients. 114. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 115. That Florida law requires that cited deficient practice be corrected within thirty (30) days. 116. That on May 25, 2016, the Agency completed. a follow-up to the January complaint survey of Respondent’s facility. 117. That based upon the review of records and interview, Respondent failed to resident records were maintained as required by law for two (2) of nine (9) sampled residents including a completed health assessment forms and informed consents, the same being contrary to the requirements of law. . 118. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted the following: a. The informed consent form regarding assistance with medications from unlicensed staff, dated February 18, 2016, did not indicate whether or not the unlicensed staff who provided the assistance would or would not be supervised by licensed staff. _b. The resident’s health assessment, form 1823, dated April 26, 2016, did not contain the name of the healthcare provider, the provider’s medical license number or the address of the provider who conducted the examination. c. The health assessment did not indicate if the resident needed assistance with medications. 34 119. That Petitioner’s representative reviewed Respondent’s records related to resident number three (3) during the survey and noted that the resident’s health assessment, form 1823, dated November 15, 2015, did not indicate whether or not the resident had any allergies with that portion of the report was blank. 120. That Petitioner’s representative interviewed Respondent's assistant administrator on May 25, 2016, at 3:00 PM, regarding the omitted information in the resident records for residents numbered one (1) and three (3) and the administrator indicated the information was overlooked. 121. That the above reflects Respondent’s failure to obtain or maintain records related to resident care and services as required by law. 122. The Agency determined that this deficient practice was a condition or oceurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 123. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class ITI deficient practice. . 124, That the same constitutes an uncorrected Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2015). . COUNT IX 125. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 126. That Florida law provides: (2) STAFF IN-SERVICE TRAINING. Facility administrators or managers shall provide or arrange for the following in-service training to facility staff: 35 (a) Staff who provide direct care to residents, other than’ nurses, certified nursing assistants, or home health aides trained in accordance with Rule 59A-8.0095, F.A.C., must receive a minimum of 1 hour in-service training in infection control, including universal precautions, and facility sanitation procedures before providing personal care to residents. Documentation of compliance with the staff training requirements of 29 CFR 1910.1030, relating to blood borne pathogens, may be used to meet this requirement. _ (b) Staff who provide direct care to residents must receive a minimum of | hour in- service training within 30 days of employment that covers the following subjects: 1. Reporting major incidents. 2. Reporting adverse incidents, 3. Facility emergency procedures including chain-of-command and staff roles relating to emergency evacuation. (c) Staff who provide direct care to residents, who have not taken the core training program, shall receive a minimum of 1 hour in-service training within 30 days of employment that covers the following subjects: 1, Resident rights in an assisted living facility. 2. Recognizing and reporting resident abuse, neglect, and exploitation. (d) Staff who provide direct care to residents, other than nurses, CNAs, or home health aides trained in accordance with Rule 59A-8.0095, F.A.C., must receive 3 hours of in-service training within 30 days of employment that covers the following subjects: 1. Resident behavior and needs. 2. Providing assistance with the activities of daily living, (e) Staff who prepare or serve food, who have not taken the assisted living facility core training must receive a minimum of 1-hour-in-service training within 30 days of employment in safe food handling practices. (f) All facility staff shall receive in-service training regarding the facility’s resident elopement response policies and procedures within thirty (30) days of employment. 1. All facility staff shall be provided with a copy of the facility’s resident elopement response policies and procedures. (a) Except as otherwise noted, certificates, or copies of certificates, of any training required by this rule must be documented in the facility’s personnel files. The documentation must include the following: 1. The title of the training program; 2. The subject matter of the training program; 3. The training program agenda; 4. The number of hours of the training program; 5. The trainee’s name, dates of participation, and location of the training program; 36 6. The training provider’s name, dated signature and credentials, and professional license number, if applicable. Rule 58A-5.0191(2 and 12), Florida Administrative Code. 127. That on October 21, 2015, the Agency completed a complaint survey of Respondent’s facility. 128. That based upon the review of records and interview, Respondent failed to ensure that its staff obtained required training and or failed to obtain or maintain required documentation thereof for five (5) of eight (8) staff members, the same being contrary to the requirements of law. 129. That Petitioner’s representative reviewed Respondent’s personnel records during the survey, and interviewed some staff, and noted as follows: a. Staff member A: i. The staff member was hired on September 1, 2015. ii. The staff member’s personnel file reflected no documentation that the staff member had timely completed required training in reporting major and adverse incidents, emergency procedures including chain-of- command and staff roles related to emergency evacuation, the facility’s elopement response policies and procedures, and safe food handling practices. ) b. Staff member B: i, The staff member was hired on September 19, 2015, and was a direct care giver. - 37 ii. The staff member’s personnel file reflected no documentation that the staff member had timely completed required training in reporting major and adverse incidents, the facility’s elopement response policies and procedures, the facility’s emergency procedures including chain-of-command and staff roles related to emergency evacuation, recognizing and reporting resident abuse, neglect, and exploitation, resident rights in an assisted living facility, and safe food handling practices. C. Staff member C: ~ i. ii. The staff member was hired on September 8, 2015. The staff member’s personnel file reflected no documentation that the staff member had timely completed required training on recognizing and reporting resident abuse, neglect, and exploitation, resident rights in an assisted living facility, the facility’s elopement response policies and procedures, reporting major and adverse incidents, the facility’s emergency procedures including chain-of-command and staff roles related to emergency evacuation, and safe food handling practices. d. Staff member D: i. ii. The staff member was hired July 1, 2015, and was a direct care giver. The staff member’s personnel file reflected no documentation the staff member had received required training in elopement policies and procedures, emergency preparedness and evacuation, reporting adverse and major incidents, resident rights, and recognizing and reporting abuse, neglect, and exploitation. 38 e, Staff member F: i. The staff member was hired in September 22, 2015. ii. The staff member’s reported that she was a house keeper and did not assist with medications, however she further reported that she helped three (3Z0 residents: one with compression hose; another with positioning on the wheel chair and toileting; and provided hydration to a hospice resident. iii, The staff ‘member’s personnel file reflected no documentation the staff member had received required training in infection control practices prior to providing direct care to residents, 130. That Petitioner’s representative interviewed Respondent‘s administrator on October 21, 2015, at 4:00 PM, regarding the training issues above addressed and the administrator indicated that he did not have any documéntation that the identified staff members had received training in the identified areas. 131. That the above reflects Respondent’s failure to ensure its staff completed training as required by law or to obtain or maintain documentation thereof. 132. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 133, That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 134. That Florida law requires that cited deficient practice be corrected within thirty (30) days. 135. That on March 1, 2016, the Agency completed a complaint survey of Respondent’s facility. 39 136. That based upon the review of records and interview, Respondent failed to ensure that its staff obtained required training and or failed to obtain or maintain required documentation thereof for four (4) of four (4) staff members, the same being contrary to the requirements of | law. 137. That Petitioner's representative reviewed Respondent’s personnel records during the survey and noted as follows: a, Staff member A: ; i, The staff member was hired on September 1, 2015. ii. The staff member’s personnel file reflected no documentation that the staff member had timely completed required training in facility emergency procedures including chain-of-command and staff roles relating to emergency evacuations. b. Staff member B: i. The staff member was hired on January 28, 2016. ii. The staff member’s personnel file reflected a certificate of training on "resident rights, but lacked any documentation that the staff member had timely completed required training in recognizing and reporting abuse, neglect, and exploitation. c. Staff member C: i. The staff member was hired on February 3, 2016. ii. The staff member’s personnel file reflected no documentation that the staff member had timely completed required training in infection control prior to the employee provided direct care to residents. 40. iii. The facility’s staffing schedule reflected the staff member work regularly as a care giver on the 3:00 PM to 11:00 PM shift. d. Staff member D: i. The staff member was hired in December 2015. ii. The staff member’s personnel file reflected a certificate of training on resident rights, but lacked any documentation that the staff member had timely completed required training in recognizing and reporting abuse, neglect, and exploitation. 138. That Petitioner’s representative interviewed Respondent‘s manager on March 1, 2016, . regarding the training issues above addressed and the manager indicate that there had been a turnover in staff and management and the files were being reviewed with some documentation overlooked. | 139. That the above reflects Respondent’s failure to ensure its staff completed training as required by law or to obtain or maintain documentation thereof. 140, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 141. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class II deficient practice. 142. That the same constitutes an uncorrected Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2015). 41 COUNT X 143, The Agency re-alleges and incorporates paragraphs (1) through (5) and paragraphs one hundred twenty-six (126) through one hundred forty-two (142) as if fully set forth herein. 144. That Florida law requires that cited deficient practice be corrected within thirty (30) days. 145. That on May 25, 2016, the Agency completed a follow-up to the March complaint survey of Respondent’s facility. ‘ | | 146, That based upon the review of records and interview, Respondent failed to ensure that its staff obtained required training within thirty (3) days of employment and or failed to obtain or maintain required documentation thereof for three (3) of four (4) staff members, the same being _ contrary to the requirements of law. 147. That Petitioner’s representative reviewed Respondent's personnel records during the survey and noted the following required staff training were not documented in staff personnel files for staff members “B,” “C,” and “D,”. all of whom had been in Respondent’s employ in excess of thirty (30) days: a. There was no documentation of training in infection control for staff members “B” and “C.” b. There was no documentation of training in activities of daily living and behavioral needs for staff members “B,” and “C,” and “D.” c. There was no documentation of training in elopement response for staff members “B ” “Cc ” and “Dp ” > + . d. There was no documentation of training in emergency preparedness and evacuation for staff members “B,” “C,” and “D.” 42 e. There was no documentation of training in incident reporting and resident rights for staff members “B” and “C.” f. There was no documentation of training in recognizing and reporting abuse, neglect, and exploitation for staff members “B,” “C,” and “D.” g. There was no documentation of training in nutrition and safe food handling for staff members “B” and “C. 148. That Petitioner’s representative interviewed Respondent's assistant administrator on May 25, 2016, at 3:07 PM, regarding the omitted information regarding staff training and the individual could not produce and documentation that the above noted training had been provided to staff members “B,” “C,” or “D.” 149. That the above reflects Respondent’s failure to ensure its staff completed training as required by law or to obtain or maintain documentation thereof. 150. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 151. That the same constitutes a Class IIT offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 152. That the same constitutes an uncorrected Class Il deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2015). COUNT XI 153. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth 43 herein. 154. That Florida law provides: ° (2) STAFF. (a) Within 30 days after beginning employment, newly hired staff must submit a written statement from a health care provider documenting that the individual does not have any signs or symptoms of communicable disease. The examination performed by the health care provider must have been conducted no earlier than 6 months before submission of the statement. Newly hired staff does not include an employee transferring without a break in service from one facility to another when the facility is under the same management or ownership. 1. Evidence of a negative tuberculosis examination must be documented on an annual basis. Documentation provided by the Florida Department of Health or a licensed health care provider certifying that there is a shortage of tuberculosis testing materials, shall satisfy the annual tuberculosis examination requirement. An individual with a positive tuberculosis test must submit a health care provider’s statement that the individual does not constitute a risk of communicating tuberculosis. ; 2, If any staff member has, or is suspected of having, a communicable disease, such individual must be immediately removed from duties until a written statement is submitted from a health care provider indicating that the individual does not constitute a risk of transmitting a communicable disease. (b) Staff must be qualified to perform their assigned duties consistent with their level of education, training, preparation, and experience. Staff providing services requiring licensing or certification must be appropriately licensed or certified. All staff must exercise their responsibilities, consistent with their qualifications, to observe residents, to document observations on the appropriate resident’s record, and to réport the observations to the resident’s health care provider in accordance with this rule chapter. Rule 58A-5.019(2)(a and b), Florida Administrative Code. 155. That on October 21, 2015, the Agency completed a complaint survey of Respondent’s facility. 156. That based upon the review of records and interview, Respondent failed to ensure that it obtained and maintained required records reflecting freedom from signs and symptoms of 44 communicable disease including tuberculosis for one (1) of eight (8) sampled staff members, the same being contrary to the requirements of law. 157. .That Petitioner’s representative reviewed Respondent’s personnel records during the . survey, and noted as follows regarding staff member “B”: | a. The staff member was hired on September 19, 2015, and was a direct care giver. b. The personnel record contained a tuberculosis result dated April 8, 2014, well ‘over a year prior to the staff member’s date of employment that reflected the staff member was negative for tuberculosis. c. There was no written statement from a health care provider documenting, within thirty (30) days after beginning employment, that the newly hired staff does not have any signs or symptoms of communicable disease and that the examination was performed by the health care provider no earlier than six (6) months before submission of the statement. 158, That Petitioner’s representative interviewed Respondent‘s administrator on October 21, 2015, at 4:00 PM, regarding the communicable disease statement for staff member “B” and the administrator indicated the employee had not yet brought in a doctor’s statement. 159. That the above reflects Respondents failure to ensure it’s obtained and maintained timely certifications of staff freedom from communicable disease. 160. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 161. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 45 162. That Florida law requires that cited deficient practice be corrected within thirty (30) days. , 163, That on March 1, 2016, the Agency completed a revisit survey of Respondent’s facility. 164; That based upon the review of records and interview, Respondent failed to ensure that it obtained and maintained required records reflecting freedom from signs and symptoms of communicable disease including tuberculosis for one (1) of five (5) sampled staff members, the same being contrary to the requirements of law. 165. That Petitioner’s representative reviewed Respondent's personnel records during the survey, and noted as follows regarding staff member “D”: a. The staff member was hired in December 2015 and was a direct care giver. b. The personnel record contained a tuberculosis result dated February 17, 2014, and a freedom from communicable disease statement dated February 14, 2014, both well in excess of six (6) months prior to the staff member employment date, 166. That Petitioner’s representative interviewed Respondent‘s manager on March 1, 2016, regarding the communicable disease records above referenced and the manager indicated that the staff member had not brought in the health care provider’s statements and the staff member would be terminated that day. 167. That the above reflects Respondents failure to ensure it’s obtained and maintained timely — certifications of staff freedom from communicable disease. 168. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of the provider or to the care of clients which indirectly or potentially threaten the physical or emotional health, safety, or security of clients. 169. That the same constitutes a Class III offense as defined in Florida Statute 429.19(2)(c) (2015), and Respondent was cited with a Class III deficient practice. 46 170. That the same constitutes an uncorrected Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429,19(2)(c), Florida Statutes (2015). | COUNT XII 171. The Agency re-alleges and incorporates paragraphs (1) through (5) and Counts X and XI as if fully set forth herein. 172. That pursuant to Section 429.19(7), Florida Statutes (2015), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a 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 Section 429.28(3)(c), Florida Statues (2015), to ’ verify the correction of the violations. 173. That Respondent is therefore subject to a survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2015). WHEREFORE, the Agency intends to impose a survey fee of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(10), Florida Statutes (2015). . COUNT XIII 174. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 175. That Florida law provides: (1) During the two year licensure period, any change or expiration of any information that is required to be reported under Chapter 408, Part II, F.S., or 47 authorizing statutes for the provider type as specified in Section 408.803(3), F.S., during the license application process must be reported to the Agency within 21 days of occurrence of the change, including: (a) Insurance coverage renewal; (b) Bond renewal; (c) Change of administrator or the similarly titled person who is responsible for the day-to-day operation of the provider; (e) Fire inspections; and, (f) Approval of revisions to emergency management plans. (2) Electronic submission of information. (a) The following required information must be reported through the Agency’s Internet site at http://www.ahca.myflorida.com/reporting/index.shtml: 1. Nursing homes: a. Semi-annual staffing ratios required pursuant to Section 400.141(1)(0), F.S. and Rule 59A-4.103, F.A.C. b. Adverse incident reports required pursuant to Sections 400.147(7) and (8), F.S. and Rule 59A-4.123, F.A.C, c. Liability claim reports required pursuant to Section 400.147(10), F.S. and Rule 59A-4.123, F.A.C. 2. Assisted living facilities: a. Adverse incident reports required pursuant to Sections 429.23(3) and (4), F.S. and Rule 58A-5.0241, F.A.C. b. Liability claim reports required pursuant to Section 429.23(5), F.S. and Rule 58A-5,0242, F.A.C. (b) The licensee must retain the receipt issued from the Internet site indicating that their transaction was accepted. (c) If the Agency’s Intetnet site is temporarily out of service, the required reports may be submitted by mail or facsimile as follows: 1, Semi-annual staffing ratios and liability claim reports are sent to the Agency for Health Care Administration, Central Systems Management Unit, 2727 Mahan Drive, MS #47, Tallahassee, FL 32308 or facsimile to (850)487-0470. 2. Adverse incident reports are sent to the Agency for Health Care Administration, Florida Center for Health Information and Policy Analysis, 2727 Mahan Drive, MS #16, Tallahassee, FL 32308 or facsimile to (850)922-2217. Rule 59A-35.110, Florida Administrative Code. iv. That Florida law provides: (1) Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances 48 and develop plans of action to correct and respond quickly to identify quality differences. oe . (2) Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “‘adverse incident” means: . (a) Anevent over which facility personnel could exercise control rather than as a result of the resident’s condition and results in: 1. Death; 2. Brain or spinal damage; 3. Permanent disfigurement; 4. Fracture or dislocation of bones or joints; 5. Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives; 6. Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or 7. Anevent that is reported to law enforcement or its personnel for investigation; or (b) Resident elopement, if the elopement places the resident at risk of harm or injury. . (3) Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident. (4) Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident. § 429.23(1 through 4), Florida Statutes (2015). That on June 30, 2016, the Agency completed a complaint survey of Respondent’s That based upon the review of records and interview, Respondent failed to complete and timely submit an adverse incident report regarding an incident involving law enforcement, the same being contrary to the requirements of law. That Petitioner’s representative interviewed resident number one (1), and alert and oriented individual, on June 30, 2016 at 11:00 AM, who indicated as follows: 49 The resident had concerns about the resident’s pain medications being stolen by.a staff member. On Sunday, June 26, 2016, at approximately 12:30 AM, when medications arrived at the facility from the pharmacy, the resident saw the resident’s pain medications on the medication cart with Respondent’s unlicensed medication technician at the cart. The resident did not want to bother the staff member, so went outside to smoke. Upon the resident’s return, the medication technician handed the resident the medication cards containing the pain medication. The resident signed for the medication, but did not count the medication cards. When the resident got to the resident’s room, the resident realized the resident had received only one half of the prescribed number of pills, sixty (60) instead of one hundred twenty (120) pills. The resident had observed the tow (2) cards on the medication cart before the resident decided to have a cigarette. 179. That Petitioner’s representative reviewed the physician order sheets for resident number one (1) for July 2016 which reflected a prescription for Oxycodone tablet 10 milligrams one (1) tablet by mouth every four (4) hours as needed. That Petitioner’s representative interviewed on June 30, 2016, at 1:00 PM, Respondent’s assistant administrator regarding the medications for resident number one rab) who indicated as a. The resident self-medicated and kept all prescribed medications in the resident’s room, 50 b. On June 24, 2016, a Friday, at about 6:00 AM, she received a phone call from unlicensed staff member “M” regarding the allegation of resident number one (1) that the resident did not receive all prescribed pain medications. c. The assistant administrator arrived at the facility and received permission from resident number one (1) to search the resident’s room for the medications. d. The assistant administrator could not determine how many pills the resident had received. _¢. The assistant administrator called police to investigate f, The assistant administrator did not have a police report. g. The assistant administrator confitmed that Respondent had not yet submitted an adverse incident report. 181. That Petitioner’s -representative telephonically interviewed, on August 2, 2016, a representative of the pharmacy which dispensed the pain medications for resident number one (1) who confirmed that one hundred twenty (120) pills of the prescribed medication were dispensed to Respondent in June. 182. That the above reflects Respondent’s failure to timely complete and submit adverse incident reports as required by law. 183. The Respondent’s actions or inactions constituted a violation of Sections 429.23, Florida Statutes (2015), and Rule 59A-35.110, Florida Administrative Code. 184. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class IJ, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. ‘Unclassified violations 31 include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of five hundred dollars ($500.00) against the Respondent, COUNT XIV 185. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein, | 186. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2015), 187. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited / by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a 52 licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2015). 188. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, cach such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s.943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly 53 Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: (a) ‘The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and:this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. § 408.809(2), Fla. Stat. (2015). 189. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of ~ adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.8094), Fla. Stat. (2015). . 190. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2015). 54 191. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. § 435.06(2)(a)-(d), Fla. Stat. (2015). 192. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if 35 required, must be disqualified for employment in such position or, if employed, must be dismissed. § 435.06(3), Fla. Stat. (2015). 193. Under Florida law, all staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S. ... Rule 58A- 5.019(3)(a), Florida Administrative Code. 194, Under Florida law, “Staff” means 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. Rule 58A-5.0131(34), Florida Administrative Code. 195. That on October 21, 2015, the Agency completed a complaint survey of Respondent and its facility. | 196. Based upon record review and interview, the Respondents failed to ensure that the Facility staff had the required background screening or exemption for one (1) of eight (8) sampled staff members, the same being contrary to law. 197. That Petoitioner’s representative interviewed Respondent’ staff member “F” on March 21, 205 at approximately 1:00 PM who indicated as follows: d. She was hired on September 22, 2015 as a house keeper and did not assist with medications. e. She could not help it but she provided assistance to three (3) residents: She helped one with compression hose; another to sit straight in a wheelchair and with toileting; and gave water to the hospice resident. The staff member added something about when being an inmate and the other inmates. 56 f. She moved here from South Carolina. g. She had not been sent for fingerprinting. h. The facility owner told her she was in the "registry," but she could not understand what registry if she had not been fingerprinted. 198. That Petitioner’s representative interviewed Respondent’s administrator on October 21, 2015, regarding criminal background screening for staff member “F” and the administrator indicated that the staff member came in with a screening, but he was unable to locate it. 199. That providers are required to obtain and maintain such records as criminal history background screening for Agency review in personnel records. See, Rule 58A-5.024(2)(a), Florida Administrative Code. 200, The Respondent's actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2015). | 201. Under Florida law, 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 for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, 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 Section 408,809, Florida Statutes, or for the actions of any facility employee: .. . Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes, § 429.14(1)(f, Fla. Stat. (2015). 202. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class IJ, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations 57 include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408,813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT XV 203. The ‘Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 204. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1}(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2015). 205. Under Florida law, level 2 background screening pursuant to Chapter 435 rhust be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The nancial officer o similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a 58 licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat, (2015). 206. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s.943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly 59 Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. § 408.809(2), Fla, Stat. (2015). 207, That on October 21, 2015, the Agency completed a complaint survey of Respondent and its facility. 208. Based upon record review and interview, the Respondents failed to ensure that one (1) of eight (8) staff personnel records did not contain the required affidavit of compliance with criminal history standards, the game being contrary to law. 209. That Petitioner’s representatSive reviewed Respondent’s personnel records during the survey and noted the following related to staff member “C”: a. The staff member was hired on September 8, 2015. b. The Level II background screening results was dated February 16, 2015. c. There was no documentation that the staff member had not had a break in service from a position that requires level 2 screening for more than ninety (90) days that was accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section by using forms that were provided by the agency. 60 210. That Petitioner’s representative interviewed Respondent administrator during the survey regarding staff member “C” and the administrator confirmed the above recited findings. — 211. The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2015). | 212. Under Florida law, 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 for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, 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 Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2015). 213. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class 1, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. . COUNT XVI 214, The Agency re-alleges and incorporates paragraphs (1) through (5) and Counts X and XI as if fully set forth herein. 61 215. That pursuant to Section 429,19(7), Florida Statutes (2015), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a 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 Section 429.28(3)(c), Florida Statues (2015), to verify the correction of the violations. | 216. That Respondent is therefore subject to a survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2015). - WHEREFORE, the Agency intends to impose a survey fee of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(10), Florida Statutes (2015). COUNT XVII 217. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 218. That Florida law provides: (b) Until such time as the fingerprints are enrolled in the national retained print arrest notification program at the Federal Bureau of Investigation, an employee with a break in service of more than 90 days from a position that requires screening by a specified agency must submit to a national screening if the person returns to a position that requires screening by a specified agency. (c) Anemployer of persons subject to screening by a specified agency must register with the clearinghouse and maintain the employment status of all employees within the clearinghouse. Initial employment status and any changes in status must be reported within 10 business days. — (d) An employer must register with and initiate all criminal history checks through the clearinghouse before referring an employee or potential employee for electronic fingerprint submission to the Department of Law Enforcement. The registration must include the employee’s full first name, middle initial, and last name; social security number; date of birth; mailing address; sex; and race. 62 Individuals, persons, applicants, and controlling interests that cannot legally obtain a social security number must provide an individual taxpayer identification number. ; § 435.12(2)(b through d), Fla. Stat. (2015). . 219. That on June 8, 2016, the Agency completed a complaint survey of Respondent and its facility. 220. Based upon record review and interview, Respondent failed to ensure that the Facility: registered and maintained the employment status of all employees within the clearinghouse or report any changes within ten (10) business days, for twenty-two (22) of twenty-five (25) employees, the same being contrary to law. 221. That Petitioner’s representative reviewed the Agency's Background Screening Clearinghouse for this facility and noted it contained the names of seven (7) unique employees. 222. That according to Respondent’s staff roster and Respondent’s assistant administrator on May 25, 2016, at 2:30 PM, Respondent employed twenty-five (25) persons. 223. That of the staff members listed on the clearinghouse record, three (3) staff members, staff members “H,” “J,” and “K,” were currently employed by Respondent, and four (4) staff members listed on the clearinghouse record were no longer employed by Respondent. 224. That twenty-two (22) of Respondent’s current employees were not recorded in the clearing house as required by law, employees “A,” “B,” “C,” “D,” “E,” “F,” “G,” “L,” “M,” “N,” “oP “P,Q.” “Ry “S,” “TU,” “V,” “W,” “X,” and “Y.” 225. That Petitioner’s assistant administrator agreed that the clearing house had not been maintained up to date. . 226. That providers are required to maintain the clearing house records of its staff members. See, § 435.12(2)(b through d), Fla. Stat. (2015). 63 227. Under Florida law, 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 for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, 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 Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(#), Fla. Stat. (2015). 228. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class II, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT XVII 229, The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 230. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla, Stat. (2015). 7 231. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees 64 we —— for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider. who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2015). 232, Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled in the Federal Bureau of . Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the 65 person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s.943.05(2)(g) and (h) and enrolled in the- national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be bome by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s, 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a'continuing care retirement community under chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; (b) The person subject to . screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. § 408.809(2), Fla. Stat. (2015). 233. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of 66 adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2015). 234. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2015). 235. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employce to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the . _ employee ina role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. 67 we — (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employce is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. § 435.06(2)(a)-(d), Fla. Stat. (2015). 236. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. §'435.06(3), Fla. Stat. (2015). 237. Under Florida law, all staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S...., Rule 58A- 5.019(3)(a), Florida Administrative Code. 238. Under Florida law, “Staff” means 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. Rule 58A-5.0131(34), Florida Administrative Code. 239, That on June 8, 2016, the Agency completed a complaint survey of Respondent and its facility. 68 240, Based upon record review and interview, the Respondents failed to ensure that newly hired employees did not have contact with any vulnerable persons or were not placed in a role that requires background screening until the screening process was completed and demonstrated the absence of any grounds for the denial or termination of employment for two (2) of four (4) sampled staff members, the same being contrary to law. 241. That Petitioner’s representative reviewed Respondent’s personnel records and the ’ Agency’s criminal background screening data base uring the survey and noted as follows: a. Staff member “B:” i. The file did not contain a Level 2 criminal history background screening eligibility or attestation. ii. The staff member was not located in the Agency’s criminal background screening data base. b. Staff member “C:” i. The criminal history eligibility record in the employee’s file read “New Screening Required.” ii, The same information was noted in the Agency’s criminal background screening data base. 242. That Petitioner’s representative interviewed Respondent’s assistant administrator on May 25, 2016, at 2:30 PM, who indicated that she was unaware that staff member “B” had not undergone backgrouns screening and that she believed staff member “C” had gone for a new screening at one time, but was not aware of any results from that screeing. 69 243. That providers are required to obtain and maintain such records as criminal history background screening for Agency review in personnel records. See, Rule 58A-5.024(2)(a), Florida Administrative Code. 244, The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2015). 245. Under Florida law, in addition to the requirements of part IT 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 for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, 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 Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2015). 246. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT XIX 247, The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein 70 248. That pursuant to Florida law, in addition to the licensure requirements specified in this part, authorizing statutes, and applicable rules, each applicant and licensee must comply with the requirements of this section in order to obtain and maintain a license... The agency may require a licensee to provide proof of financial ability to operate. at any time if there is evidence of financial instability, including, but not limited to, unpaid expenses necessary for the basic operations of the provider. §.408.810(8), Fla. Stat. (2014). 249. That Florida law provides the following: “ A controlling interest may not withhold from the agency any evidence of financial instability, including, but not limited to, checks returned due to insufficient funds, delinquent accounts, nonpayment of withholding taxes, unpaid utility expenses, nonpayment for essential services, or adverse court action conceming the financial viability of the provider or any other provider licensed under this part that is under the control of the controlling interest. Any person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation is a separate offense.” § 408.8109), Fla. Stat. (201 4). 250. That Florida law provides: . ... If an applicant or licensee has shown signs of financial instability, as provided in Section 408.810(9), F.S., at any time, the Agency may require the applicant or licensee to provide proof of financial ability to operate by submission of: (a) AHCA Form 3100-0009, July 2009, Proof of Financial Ability Form, that includes a balance sheet and income and expense statement for the next 2 years of operation which provide evidence of having sufficient assets, credit, and projected revenues to cover liabilities and expenses, and (b) Documentation of correction of the financial instability, including but not limited to, evidence of the payment of any bad checks, delinquent bills or liens. If complete payment cannot be made, evidence must be submitted of partial payment along with a plan for payment of any liens or delinquent bills. If the lien 71 is with a government agency or repayment is ordered by a federal or state court, an accepted plan of repayment must be provided. Rule 59A-35.062(7), Florida Administrative Code. 251. That Florida law provides: Financial instability” means the provider cannot meet its financial obligations. Evidence such as the issuance of bad checks, an accumulation of delinquent bills, or inability to meet current payroll needs shall constitute prima facie evidence that the ownership of the provider lacks the financial ability to operate. Evidence shall also include the Medicare or Medicaid program’s indications or determination of financial instability or fraudulent handling of government funds by the provider. Rule 59A-35.062(3)(e), Florida Administrative Code 252. That on June 2, 2016, the Agency completed a complaint survey of Respondent and its facility. 253. That based upon the review of financial account reviews and interviews, Respondent failed to demonstrate financial stability to continue the e provision of care and services to residents. 254, That Petitioner’s representatives interviewed several of Respondent's staff members on May 24 and 25, 2016, who indicated the following: a. Staff pay checks were being denied for insufficient funds. b. The food vendor refused to deliver further food supplies until the account was paid. c. Staff were buying food and supplies from their own monies. d. There was a concern some staff would not arrive for work schedules when they are not getting promptly compensated. 255. That Petitioner’s representative interviewed Respondent’s staff member “K on May 24, 2016 at 2:00 PM who indicated as follows: 72 g. h. He worked five. (5) days a week in the kitchen. The facility ran out of deserts about three (3) weeks ago and he had to go to Publix and purchase the deserts - he did get reimbursed. The food delivery truck was late and for four (4) days there were no deserts. The check that was written to the food vendor bounced and that was why the truck didnot deliver. He was to be paid on Friday and did not get paid. He was there on May 24, 2016, to get his check, got upset, and was not going to leave until he got paid. He was owed around five hundred dollars ($500.00). His paycheck was late two (2) times since his employment. 256. That on May 24, 2016 at 3:00 PM, Respondent’s administrator was asked to provide his monthly financial records that included all income and expenses and he said at the time he did not have them and was informed that he needed to have them available on May 25, 2016. 257. That on May 25, 2016, Respondent's 5/25/16, administrator only provided some of the facility bills and the quick book bank statements. He said he had hired a bookkeeper to get the books together. He said she was on leave until Tuesday because of the holiday and could get the information on Tuesday. 258. That Petitioner’s representative reviewed the presented bank statement and noted: - i. On March 2, 2016, there were six (6) checks written and on May 9, 2016, there were seven (7) checks written while the record reflects the account did not contain enough money in the account to cover the checks. The bank used the overdraft protection to cover the checks. 73 259. That Petitioner’s representative reviewed Respondent's Waste Management bill dated May 1, 2016 which reflected he bill was overdue by thirty (30) days and the invoice amount covered two (2) months of service. 260. That Petitioner’s representative interviewed Respondent’s administrator on May 25, 2016, who indicated as follows: k, The administrator was asked for the book keeper’s name and telephone number. i. iii. He gave two names and then said the new bookkeeper was going to be starting Tuesday. He was informed at the time that the financial records are due now. He said that he would go into quick books and do them himself and get them to the surveyors via email lL 6:15 PM: The administrator said there were no financial problems. He had a bookkeeper that he had just terminated because she did not pay the bills on time and did not make him aware of when the bills were due. He at first stated there were no bounced checks, but then after he was questioned about his negative bank statement he said on his bank statement there were Non-Sufficient Funds (NSF) for some of the checks and the account was negative. He said he realized that and on the bank statements deposits were made the same day or the next day to cover the check, he had overdraft protection to cover the checks. 74 v. He said the employees did not understand the payroll with close out dates of the 1 and the 15" with pay dates on the 6 and the 21". vi. They use a machine when clocking in where you had to use your gn finger, and place it on a pad. vii. If it was not done correctly it may not count correctly the hours that the employee may have worked and that was why some of the checks were short and he would have to correct them later. viii. When asked why some of the employees did not get paid at all, he did provide an answer but said again possibly something went wrong with them placing their finger on the clock on the in and out pad. ix. When asked why some of the bills were past due and why the food distributor did not get paid on time, he again blamed it on the bookkeeper that he had that was fired. | 261. That Petitioner’s representative reviewed an invoice for advertising dated May 29, 2016, and noted it was marked one hundred twenty (120) plus days overdue. 262. An email received by the agency revealed Staff L was upset because she did not receive all of her pay. She had also purchased supplies for activities and was not reimbursed. 263. That Petitioner’s representative reviewed a salary check received by the Agency that was written for staff member “L” on May 22, 2016 for the weeks May 1 through 16, 2016, and the check was stamped on top "NSF Ist." 264. That Petitioner’s representative interviewed Respondent’s staff member “J” on May 24, 2016 at 2:15 PM who indicated that paychecks were late at times, there was nothing she could do but wait, and sometimes she had to wait a few days after the payday to get the check. 75 265, That Petitioner’s representative interviewed Respondent’s staff member “I” on May 24, 2016 at 3:00 PM who indicated as follows: a. At times her paycheck was short hours. b. Her check bounced (returned by bank/insufficient funds) sometime in January or February. c. She used TD bank the same as Cristal Palace and was told the check had insufficient funds or a hold. d. The facility told her that was impossible; it had to be an error. e. On the last payday, she did not get a pay stub; just a check. d. Management would not give her an explanation as to why. e. Whenever she questioned her paycheck, the reason given to her was she must have made an error on her timesheet; clocking in and out. 266. During an interview at 2:40 PM on 5/24/16 with staff F who said she should have gotten paid on Tuesday 5/21 because paydays are the 6th and 21st, but she did not. When she asked, they (management) give her the run-around and tell you to wait. 267. On 5/25/16 at 9:15 AM staff F approached the Agency representative and said "Thank you for all your help I got paid today. I don't know what you did but thanks" 268. On 5/25/15 at 10 AM staff K provided a copy of a paycheck dated 5/6/16 for weeks 4/15 to 4/30/16. The check was from TD Bank. The account name and account number were not listed on the check, nor did it have a stub. 716 269, That Petitioner’s representative interviewed Respondent’s staff member “E” on May 24, 2016 at 3:30 PM who indicated as follows: a. She began working at the facility on April 18, 2016. b. Both paychecks so far have been short by approximately two hundred seventy- five dollars ($275.00). c. She had not received the back pay as of May 24, 2016. f. She has not been asked to buy any supplies out of pocket, but they do often run out of trash bags and diapers/pull ups. 270. That Petitioner’s representative interviewed Respondent’s staff member “F” on May 24, 2016 at 3:45 PM who indicated as follows: a, Her paycheck was sometimes short. -b. One time she only received one week of pay for the two (2) weeks of hours she had worked. c. Her husband had also been a medication technician at the facility and was paid thirteen (13) hours short and has never received the back pay. g. Supplies are often short, usually toilet paper, trash bags and pull ups. h. On May 25, 2016 at 11:10AM she reported to Agency personnel that she received her paycheck that morning and thanked the Agency for being there. 271. That Petitioner’s representative interviewed Respondent’s staff member “G” on May 25, 2016 at 11:00 AM who indicated as follows: a. She was the dietary manager. b. She has worked at the facility for three (3) months. 77 c. She cannot always work with what is on the facility menu provided by the dietician, . d. She often submits the grocery list for the week, but if the dollar amount is too high, the owner has rejected it, so she has to work with what she has. e. She strives to meet the nutritional needs of the residents, but also wants to make sure they have food they like and want to eat. f. Some residents complain of too much chicken. g. Food deliveries are supposed to come every Monday. h. = They did not receive a food delivery this Monday because the vendor was not paid. i. The food did arrive this morning (Wednesday, 5/25). j. Today's lunch was supposed to be chicken, but could not be prepared because it was still frozen. 272. That on May 25, 2016 at 1:15 PM, Respondent’s Assistant Administrator verified that the food deliveries have not come on time because the vendors are not being paid. 273. That Respondent’s administrator said that he would email the Agency personnel the , facility’s financial records, but they were never received. 274, That the above reflects Respondent’s inability to demonstrate financial ability to operate. 275. Under Florida law, in addition to the requirements of part IT 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 for a violation of any provision of Part J or Chapter 429, Part II of Chapter 408; 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 7 Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2015). 276. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class Il, class Il, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT XX 277. The’ Agency re-alleges and incorporates paragraphs one (1) through five (5), and the entirety of this Administrative Complaint as if fully set forth herein 278. That pursuant to Florida law, in addition to the licensure requirements specified in this part, authorizing statutes, and applicable rules, each applicant and licensee must comply with the requirements of this section in order to obtain and maintain a license... The agency may require a licensee to provide proof of financial ability to operate at any time if there is evidence of financial instability, including, but not limited to, unpaid expenses necessary for the basic operations of the provider. § 408.810(8), Fla. Stat. (2014). 279. That Florida law provides the following: “ A controlling interest may not withhold from the agency any evidence of financial instability, including, but not limited to, checks returned due to insufficient funds, delinquent accounts, nonpayment of withholding taxes, unpaid utility expenses, nonpayment for essential services, or adverse court action concerning the financial 719 viability of the provider or any other provider licensed under this part that is under the control of the controlling interest. Any person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Each day of continuing violation is a separate offense.” § 408.810(9), Fla. Stat, (2014). 280. That Florida law provides: ... If an applicant or licensee has shown signs of financial instability, as provided in Section 408.810(9), F.S., at any time, the Agency may require the applicant or licensee to provide proof of financial ability to operate by submission of: (a) AHCA Form 3100-0009, July 2009, Proof of Financial Ability Form, that includes a balance sheet and income and expense statement for the next 2 years of operation which provide evidence of having sufficient assets, credit, and projected revenues to cover liabilities and expenses, and (b) Documentation of correction of the financial instability, including but not limited to, evidence of the payment of any bad checks, delinquent bills or liens. If complete payment cannot be made, evidence must be submitted of partial payment along with a plan for payment of any liens or delinquent bills. If the lien is with a government agency or repayment is ordered by a federal or state court, an accepted plan of repayment must be provided. Rule 59A-35.062(7), Florida Administrative Code. 281. That Florida law provides the following: “(1) In addition to the requirements of part I 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 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, any person subject to level 2 background screening under s. 408.809, or any facility staff ... (b) A determination by the agency that the owner lacks the 80 financial ability to provide continuing adequate care to residents... (f) Failure to comply with the background screening standards of this part, s. 408.809 (1), or chapter 435... (k) Any act constituting a ground upon which application for a license may be denied.” § 429.14(1)(b, f, and k), Fla. Stat. (2015). 282. That Florida law provides the following: “In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest ...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.; (d) A demonstrated pattern of deficient performance.” § 408.815(1)(b, c, and d), Fla. Stat. (2015). 283. That on May 26, 2016, the Agency demanded Respondent provide proof of financial ability to operate as authorized by law. See, Attachment “A.” 284. That the information provided in response by Respondent failed to demonstrate the Respondent had the financial ability to operate as defined by law. 285. That Respondent has been cited with a total of five (5) violations of law related to the failure to comply with the background screening standards of Chapter 429, Part I, s. 408.809 (1), or chapter 435 over the period August 26, 2015 through June 8, 2016. 286. That each violation reflecting the failure to comply with the background screening . standards of Chapter 429, Part I, s. 408.809 (1), or chapter. 435, constitutes independent grounds for the revocation of Respondent’s licensure as an assisted living facility. 287. That Respondent has been cited with a total of fifteen (15) violations of law subject to administrative monetary sanctions over the period August 26, 2015 through June 8, 2016. 288. That these fifteen (15) violations constitute a pattern of deficient practice. 81 289. That Respondent has failed to demonstrate financial ability to operate. 290. That Respondent has violated the minimum requirements of law of Chapters 429, Part II, and Chapter 58A-5, Florida Administrative Code as described with particularity within this complaint. 291. That Respondent has a duty to maintain its operations in accord with the minimum requirements of law and to provide care and services at mandated minimum standards. 292. That Respondent’s actions or inactions as described with particularity within this complaint constitute intentional or negligent acts which are in violation of the mandates of law and materially affected the health or safety of residents. 293. That based thereon, individually and collectively, the Agency seeks the revocation of the Respondent’s licensure, . WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida. Respectfully submitted this Zi day of September, 2016. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Florida 33701 Telephone;/27) 552-1947 / Fax: (727) 552-1440 walshtt myflorida.com Ela. Bar No. 566365 82 NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No. 7010 0780 0001 9835 5772 on September @_, 2016, to Nuri Dorra, Administrator, Cristal Palace Resort PB LC, 1881 Palm Bay Road, Palm Bay, Florida 32905, and by Regular U.S. Mail to Nuri Durra, Registered Agent for Cristal Palace Resort PB LC, 16426 Northeast 32 Avenue, North Miami Beach, Florida 33160. Copy furnished to: Theresa DeCanio Field Office Manager Agency for Health Care Administration 83 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Cristal Palace Resort PB LC AHCA Nos: 2015012605 ‘ 2016009811 2016009813 2016009815 2016006006 2016008240 2016004117 2016003289 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed agency action by the Agency for Health Care Administration (AHCA), The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights may be retumed by mail or by facsimile transmission, but must be filed within 21 days of the day that you receive the attached proposed agency action. If your Election of Rights with your selected option is not received by AHCA within 21 days of the day that you received this proposed agency action, you will have waived your right to contest the proposed agency action and a Final Order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 28, Florida Administrative Code.) Please return your Election of Rights to this address: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Telephone: 850-412-3630 Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) 1 admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) 1 admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed agency action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. The name, address, telephone number, and facsimile number (if any) of the Respondent. 2. The name, address, telephone number and facsimile number of the attorney or qualified representative of the Respondent (if any) upon whom service of pleadings and other papers shall be made. 3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. 4. A statement of when the respondent received notice of the administrative complaint. 5. A statement including the file number to the administrative complaint. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, . License Type: (ALF? Nursing Home? Medical Equipment? Other Type?) Licensee Name: License Number: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. Fax No. E-Mail (optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Print Name: Ceitified Mail: ‘File Nuabor: 11068825 ‘Lise 560 ‘Provitiee Nes ssisted Living Fagility Pale sain "008 Res Proof of Financial: Ability ‘operate rea for Cristal Palace Resort PB LLC Bear Mp, Dortas “The Agenny- has conde anti: i t c Heorre agof assis Li ing residents, arose ial ability to-operateat any timed ie, but not limited w, dipald BaperSeTSSESEy on 408 $19. ling intefst may: not withhold from: the Ageiey jidiieg, but not Hivalted te: aheoks setuntiedl due 6., a N10 pasa will oe ere wats ge ope OA. Ri tormation weust Be ebbvatitted onthe Agenéy forms ond u forint, All oftthe requested i dlow must besubmittedwithin 21 days of seeelpt of ale letter, “THe rie é action, in evocation, against your: Filing facility nse, iPawe dower meadivettexequested documentation, Please submit.all:-decunrents te the ATTACHMENT “ A” Net acting via 6 nee Gy ee USPS.com® - USPS Tracking® Page 1 of 2 English Customer Service USPS Mobile Register / Sign in EZUSPS.COM' Still Have Questions? USPS Tracking® rome ur 8 Get Easy Tracking Updates > Sign up tor My USPS. Tracking Number: 70100780000198366772 Product & Tracking Information Available Actions - Postal Product: Features: Certified Mail™ Text Updates DATE & TIME STATUS OF ITEM LOCATION Email Updates patober 2, 2016 , 6:10 Departed USPS Facility ORLANDO, FL 32824 Your item departed our USPS facility in ORLANDO, FL 32824 on October 2, 2016 at 6:10 pm. The item is currently in transit to the destination. 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Docket for Case No: 17-002149

Orders for Case No: 17-002149