Petitioner: FOUNTAINS SENIOR PROPERTIES OF FLORIDA, INC., D/B/A THE SPRINGS AT LAKE POINTE WOODS
Respondent: AGENCY FOR HEALTH CARE ADMINISTRATION
Judges: FRED L. BUCKINE
Agency: Agency for Health Care Administration
Locations: Sarasota, Florida
Filed: May 02, 2001
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Tuesday, September 25, 2001.
Latest Update: Dec. 24, 2024
STATE OF FLORIDA FILED
HAY 22 03
AGENCY FOR HEALTH CARE ADMINISTRATION
STATE OF FLORIDA, AGENCY FOR
HEALTH CARE ADMINISTRATION,
Petitioner,
vs. AHCA No.: 2002010721
CASE No.: 8-01-0024NH
DOAH No.: 01-1651
FOUNTAINS SENIOR PROPERTIES OF Fip> Clos
FLORIDA, INC., d/b/a Springs at Lake
Pointe Woods, -
Respondent
FINAL ORDER
Having reviewed the Notice of Change to Conditional Licensure
Status dated December 14, 2000, (Ex. 1), and all other matters of
record, the Agency for Health Care Administration (“Agency”) finds and
concludes as follows:
FINDINGS OF FACT
1. The Agency issued a Notice of Change to Conditional
Licensure Status dated December 14, 2000 stating a conditional
license had been imposed effective November 21, 2000, against the
Petitioner, Fountains Senior Properties of Florida, Inc. d/b/a Springs at
Lake Pointe Woods, a nursing home facility for a violation of Chapter
Page 1 of 4
400, Part II, Florida Statutes, and Chapter 59A-4 Florida
Administrative Code.
2. The Petitioner was served with the Notice of Change to
Conditional Licensure Status by U.S. Certified Mail. The Petitioner
was advised of its right to request an administrative hearing. The
Petitioner filed a petition (Ex. 2), denying the allegations of fact
contained in the Notice of Change to Conditiona! Licensure Status and
requesting to be afforded a formal proceeding, pursuant to
120.57(2), Florida Statutes.
3. On September 14, 2001, Petitioner filed its Notice of Voluntary
Withdrawal (Ex. 3). There was no executed settlement agreement.
4. On September 25, 2001, Administrative Law Judge Buckine
entered the Order Closing File (Ex. 4).
5. The Agency hereby adopts and incorporates by reference the
attached Notice of Voluntary Withdrawal and Order Closing File.
6. There are no remaining disputed issues of fact or law.
7. The facts as alleged and found, establish that:
In the survey completed on November 21, 2002, a Class
III deficiency was re-cited due to the facility's failure to
provide sufficient nursing staff to assist residents with
meals and personal care needs. This is a violation of Rule
59A-4-1288 Fl. Admin. Code and is the basis of a
conditional license pursuant to Section 400.23(7)(b),
Florida Statutes.
Page 2 of 4
CONCLUSIONS OF LAW
1. The Agency has jurisdiction over Respondent pursuant to
the provisions of Chapter 400, Part II, and Sec. 120.569, Florida
Statutes.
Based on the foregoing,
IT IS ADJUDGED THAT:
The above-styled case is DISMISSED and the imposition of the
conditional license effective November 21, 2000 is upheld.
DONE and ORDERED this LE day of 2X hig , 2003, in
Tallahassee, Florida.
Kees. his cet
Hi M. Med ear fe Secretary
Agency for Health Care Administration
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS
ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY
FILING ONE COPY OF A NOTICE OF APPEAL WITH AGENCY CLERK AND
A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW,
IN THE DISTRICT COURT OF APPEAL WHERE THE AGENCY MAINTAINS
ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW
PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE
FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED
WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE
REVIEWED.
Copies furnished to:
Page 3 of 4
Shannon B. Hartsfield, Esq.
Holland & Knight LLP
Attorney for Springs at Lake
Pointe Woods
315 S. Calhoun Street, Suite 600
P.O. Drawer 810
Tallahassee, FL 32301
Elizabeth Dudek The Honorable Fred L. Buckine
Deputy Secretary Division of Administrative Hearings
Agency for Health Care The De Soto Building
Administration 1230 Apalachee Parkway
2727 Mahan Drive MS 9 Tallahassee, FL 32399-3060
Tallahassee, FL 32308
(Interoffice Mail)
Joanna Daniels, Esq. Wendy Adams
Assistant General Counsel Facilities Intake Unit
Agency for Health Care Agency for Health Care
Administration Administration
2727 Mahan Drive MS 3 2727 Mahan Drive MS 3
Tallahassee, FL 32308 Tallahassee, FL 32308
(Interoffice Mail) (Interoffice Mail)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was mailed
to the above-named addressees on this GQ day of
_ Meat 2003.
CGhaglene iPr Teg bps
€ Lealand McCharen, Agency Cl
Agency for Health Care
Administration
2727 Mahan Drive, Building #3
— _...._Tallahassee,Florida -32303- Re
Page 4 of 4
- Sarasota, Florida 34238
MC & HQ/HEADQUARTERS Fax:850-437-6240 - Per 12 200 15:4e P05
_
STATE OF FLORIDA
~ AHICA
AGENCY FOR HEALTH CARE ADMINISTRATION CARE ADMINISTRATION
: : OA 54
JE8 BUSH, GOVERNOR . RUBEN J. KING-SHAW. JR, SE ae si o
a Oo
December 14, 2000 EXHIBIT CERTIFIED MAIL
. RETURN RECEIPT REQUESTED
Administrator | #7099-3400-0013-8446-3832.
Springs at Lake Point Woogl# _o ="
7848 Beneva Road
Vip :
Ol - eS
LE: CHANGE OF LICENSE TO CONDITIONAL STATUS
Dear Administrator:
This conditional license is effective 11/21/00 and is issued Conditional as a result of the survey
completed on 11/21/00. During this survey a Class III deficiency was re-cited due to-the facility
not providing sufficient nursing staff to assist residents with meals and personal care needs. This
Jicense reflects your current license status and must be displayed in a conspicuous place in your
facility pursuant to section 400.062(5), F.S. .
Pursuant to section 120.57, F.S., you have a right to request an administrative hearing, to be
represented by counsel (at your expense), to take testimony, to call or cross-examine witnesses,
to have subpoena and subpoena duces tecum issued and to present written evidence or argument
’ in your behalf. Chapter 28, Part V, Florida Administrative Code (F.A.C.), constitutes the
Agency’s procedural rules for administrative proceedings resulting from this action.
In order to obtain a formal proceeding under section 120.57(1), F.S., your request for an
administrative hearing must conform to the requirements in Chapter 28-5.201, F.A.C., and must
state which issues of material fact you dispute. Failure to dispute issues of material fact in your
request for a hearing may be treated by the Agency as an election by you for an informal
Proceeding under section 120. 57@), BS. .
All requests for hearings shall be filed with the Agency within twenty-one (21) days of receipt of
this letter. The petition should be sent to:
Agency for Health Care Administration
Mr. Michael Sasso, Esq., Senior Attorney
6800 N. Dale Mabry Hwy., Suite 220
Tampa, Florida 33702
In accordance with the Americans with Disabilities Act, persons needing special accommodation
to participate in this proceeding should contact Mr. Sasso no later than seven (7) days prior
to the he proceeding or hearing at which such special accommodation i is required. If needed, Mr.
Vistt AHCA Online at
2727 Mahan Drive + Mail Stop #33
www fdhe state flus
Tallahassee, FL 323
tp ree
MC & HQ/HEADQUARTERS Fax :850-487-6240
=~
“ December 14, 2000
Page2 —
Sasso may be contacted at (813) 871-7427.
Sincerely,
. th.
Kathy Munn
Health Services & Facilities Consultant
Long Term Care
Health Facility Regulation
cc: AHCA Area Office 8
Mr. Mike Sasso, Area Office 6
File
Agr 12 2001
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STATE OF FLORIDA | .
AGENCY FOR HEALTH CARE apaannstaisig
FOUNTAINS SENIOR PROPERTIES OF Cay ;
FLORIDA, INC. d/b/a The Springs at oy” 1
Lake Pointe Woods, NAR 22 RED
Petitioner, Agency for Health
Care Administration
vs. CASE NO.O1=|LeS[_
AGENCY FOR HEALTH CARE EXHIBIT
ADMINISTRATION, -
Respondent.
PETITION FOR FORMAL ADMINISTRATIVE HEARING
Petitioner, Fountains Senior Properties of Florida, Inc., d/b/a The Springs at
Lake Pointe Woods, by and through undersigned counsel, and pursuant to Sections
120.569 and 120.57, Florida Statutes, and Rule 28-106.201, Florida Administrative
Code, files this Petition for Formal Administrative Hearing to contest a
determination by the Agency for Health Care Administration (AHCA) that y
Petitioner violated certain state licensure requirements. In support of this Petition,
the Facility states:
Parties
1. The Petitioner is Fountains Senior Properties of Florida, Inc. d/b/a The
Springs at Lake Pointe Woods (the “Facility”. The Facility i isa Florida corporation.
For Purposes of this proceeding, the address of Petitioner is that of the undersigned
wares eee oe
counsel. The Facility’s license number is SNF 1468096. The current certificate
number for the Facility’s license is 6608.
2. The Respondent is the Florida Agency for Health Care Administration
(‘AHCA’), 2727 Mahan Drive, Tallahassee, Florida 32308.
Statement of When and How Petitioner Received Notice
8. The Facility received notice of AHCA’s agency action relating to
particular regulatory requirements on or about March 16, 2001, by letter, dated
March 5, 2001, from Susan S.B. Acker, RN, Ph.D., the Nursing Services Director of
AHCA. A copy of this letter is attached as Exhibit “A.”
Background .
4. AHCA is the Florida governmental agency charged with licensure and
regulation of nursing homes.
5. Fountains Senior Properties of Florida, Inc. has operated the Facility
since July 1, 1997, pursuant to the pertinent AHCA license.
6. On or about October 23, 2000, the Facility underwent a survey by
AHCA employees assigned to AHCA’s Area 8 office in Ft. Myers, Florida to
determine the Facility’s compliance with various state and federal nursing home
statutes and regulations. AHCA also conducted “follow up” or “re-visit” surveys on
November 21; 2000, and J anuary 24, 2001 (hereinafter “January survey”).
7. During the January survey, AHCA surveyors prepared a report setting
forth their findings. A copy of this Facility’s Statement of Deficiencies and Plan of
Correction Form (HCFA 2567L), providing details regarding these alleged
deficiencies, is attached as Exhibit “B.”
8. The HCFA 2567L form lists the following alleged observations
regarding a nurse referred to herein as “Nurse A”:
During an observation of the medication pass on 1/24/01 at
approximately 9:10 A.M., the nurse administered one drop of Pilocar
1% into RS Resident #18’s right eye. Observation of the label revealed
that one drop of Pilocar 1% is to be administered into the Resident’s
left eye. Review of the physician’s order dated 2/28/00, confirmed that
the eye drop is to be administered into the Resident’s left eye.
9. The HCFA 2567L form lists alleged observations regarding a nurse
referred to herein as “Nurse B.” This nurse was allegedly observed improperly
mixing an iron supplement. No improperly mixed supplement was administered to
the resident.
10. Asa result of the January survey, AHCA surveyors determine that 18
of 19 previously-cited deficiencies had been corrected. The surveyors alleged,
however, that one deficiency, related to pharmaceutical services and identified by
the “ID Prefix Tag” of F426, had not been corrected. Additionally, the surveyors
‘ alleged thata second deficiency, Tag F332, existed. With respect to this deficiency,
the surveyors concluded that the Facility hada medication error rate of five percent
Peis tanec
or greater. “Both of these ‘deficiencies w were ‘Gesignated : as 3 “Class Ill” deficiencies.
11. On March 2, 2001, AHCA held an informal dispute resolution at the
F acility’ 8 yequest regarding the ‘deficiencies cited-during the January-survey—As-a— _
- ae
cme im oe
result of this proceeding, AHCA removed the F426 deficiency based on its finding
that “[t]his was not a pharmaceutical services error.” Exhibit “A” contains AHCA’s
findings as a result of the informal dispute resolution proceedings. AHCA elected to
uphold the F332 deficiency.
12. The Facility has been subject to various penalties as a result of
)
|
deficiencies cited in the various surveys listed above, including denial of Medicaid |
payment for new resident admissions. |
Statement of Ultimate Facts that Warrant Reversal
13. At the time of the January survey, the Facility was in compliance with
all applicable licensure requirements.
14, There is substantial evidence to suggest that Nurse A intentionally
sabotaged the Facility’s survey. Just prior to the January survey, Nurse A had
tendered her resignation in order to go work for a competing facility. January 24,
2001, the day of the survey, was to be her last day at the Facility.
15. Onthe morning of January 24, 2001, Nurse A told several facility
employees that she had contemplated sabotaging the survey, and also expressed
concerns about losing her license if she did that.
“16. Nurse A had performed medication ‘passes many times prior to
J anuary 24 without incident, In fact, "Nurse A actually conducted an inservice at
the Facility on December 6, 2000, to train other employees regarding reading labels
prior to the administration of medication. Additionally, Nurse A attended an
inservice on medication administration ¢ on n December 12, 2000, and received
satisfactory marks during a documented observation of her medication pass skills
on November 16, 2000.
17. Nurse A’s actions necessitated an extended survey of the Facility’s
medication pass procedures. Nurse B allegedly committed her error during the
extended portion of the survey.
18. After the survey, the facility provided inservice training to both nurses.
Nurse A, however, was acting in an extremely unprofessivaal manner. She was. -
emotionally distraught, argumentative, and interrupted her training to make
personal phone calls. The Facility sent her home immediately after this. Because
Nurse A had already resigned from the Facility and January 24 was to be her last
day, she did not return to work at the Facility.
19. Nurse A’s actions do not constitute a medication “error” because her
failure to properly administer the medication was intentional. When it discovered
that Nurse A had made statements to fellow employees about sabotaging the
survey, the Facility reported Nurse A’s actions to the Board of Nursing, AHCA, and
the Abuse Hotline.
; ‘20. . "Assuming Nurse B actually. committed a , medication error during the
J anuary survey, ‘her single error does not support a finding that the Facility had a
me f five percent 0 or ‘greater. “iPherefore, Tag F332 should not
have been cited, and the Facility should have been found is in 2 compliance with all
applicable licensure requirements.
Ie
21. Two complaint surveys conducted after the January survey, on
February 20 and March 5, 2001 (attached as Exhibits “@” and “D”), have resulted in
findings that the Facility is in compliance with state and federal requirements for
skilled nursing facilities.
Petitioner’s Substantial Interests
22. Petitioner is and has been substantially affected by AHCA’s decision to
uphold the Class III deficiency designated by Tag F332. A violation of provisions of
Chapter 400, Florida Statutes, or related rules, “shall be grounds for action by the
agency against a licensee.” §400.102, Fla. Stat. (2000).
23. Upon information and belief, AHCA’s refusal to withdraw the F332
deficiency has resulted in continued imposition of penalties, including denial of
Medicaid payment for new resident admissions.
24. Ifthis Class III deficiency is allowed to stand, it may delay or prevent
the issuance of a standard license to the facility. See §400.23(7)(a), Fla. Stat.
(2000). ‘If the deficiency 3 is found to be uncorrected on a subsequent survey, the
Facility. could be subject to o civil fines and other penalties. Furthermore, this
deficiency relates to quality of care, and the Facility is subject to © unjustified harm to
its reputation and good name if allowed to stand.
“Applica e Statutes, Rules, and Policies that Require Reversal
25. The Facility was in compliance with applicable laws and rules during
the Ji anuary survey. Two subsequent surveys have confirmed that the Facility is in
Focerrreren- mtr ETE
compliance. Deficiencies stemming from the seemingly intentional and
unprofessional acts of Nurse A should not be a basis for penalizing the Facility. The
actions of Nurse B, standing alone, would not support a finding that the facility had
a medication error rate of five percent or greater.
26. Section 120.569, Florida Statutes, requires that an entity whose
substantial interests are affected be afforded a notice of availability of an
administrative hearing to challenge an agency decision. The entity must also be
given information regarding the procedure to be followed to obtain a hearing,
including the applicable time limits. See §120.569(1), Fla. Stat. (2000); see also Fla.
Admin. Code Ann. R. 28-106.111. To date, although the Facility has been given the
opportunity to participate in an informal dispute resolution process, the Facility has
received no point of entry to challenge the underlying deficiencies.
27. Florida Administrative Code Rule 59A-4.1200 requires nursing homes
participating in Medicare and Medicaid to comply with rules and regulations found
in 42 C.F.R. 483. Section 483.25 of the Code of Federal Regulations, incorporated
by reference into Rule 59A-4.1200, requires skilled nursing facilities to be “free of
- medication error rates of five percent or greater.” One medication pass error out of
40, coupled with an intentional administration of medication incorrectly, does not
constitute an error rate of five percent or greater.
Statement of Disputed Issues of Material Fact
28. The disputed issues of material fact of which the Petitioner is aware at
~ —this time include, but-are not limitedto:—-- --— — wen
were
29.
Ge
Whether, on January 24, 2001, the Facility had a medication
error rate of five percent or greater;
Whether, on January 24, 2001, the Facility was in compliance
with applicable state licensure requirements;
Whether Nurse A intentionally sabotaged the survey that took
place at the Facility on January 24, 2001;
Whether AHCA has grounds to continue to impose, or -..-
recommend the imposition of, penalties against the Facility,
including, but not limited to, denial of payment for new
Medicaid admissions; and
Whether AHCA’s decision to uphold the deficiency designated by
Tag F332 was proper.
Relief Requested
Petitioner requests that AHCA:
a.
forward this Petition to the Division of Administrative Hearings
for assignment to an Administrative Law Judge to preside over
. ‘a formal administrative hearing on the issues set forth above;
enter a final order requiring AHCA to resume payment for new
ia:
Medicaid residents admitted to the Facility, and lift or
recommend the lifting of any other applicable penalties; and
ener
C. enter a final order determining that the Facility was in
compliance with all applicable licensure requirements on
January 24, 2001.
ou. ; 7
Respectfully submitted this ‘ 2° day of March, 2001.
HOLLAND & KNIGHT LLP
Jerome W. Hoffman, Esq.
Florida Bar No. 0258830
Shannon B. Hartsfield
Florida Bar No. 055130
Post Office Drawer 810
Tallahassee, Florida 32302
(850)224-7000
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CPRUFY that the original of the foregoing has been furnished by
hand delivery this Us day of March, 2001, to: Agency Clerk, Agency for Health
Care Administration, 2727 Mahan Drive, Building 3, Room 3431, Tallahassee,
Florida, 32308, with a duplicate delivered Via overnight mail to Michael Sasso, Esq.,
Senior Attorney, Agency for Health Care Administration, 6800 N. Dale Mabry Hwy,
Suite 220, Tampa, Florida 33702.
Por . seetan - wee ae . see il =
Shannon B. Hartsfield
ee vere
ae
STATE OF FLORIDA oF 9
DIVISION OF ADMINISTRATIVE HEARINGS
FOUNTAINS SENIOR PROPERTIES OF
FLORIDA, INC., d/b/a SPRINGS AT LAKE
POINTE WOODS,
Petitioner,
vs.
AGENCY FOR HEALTH CARE
ADMINISTRATION,
Respondent.
NOTICE OF VOLUNTARY WITHDRAWAL
Petitioner, Fountains Senior Properties of Florida, Inc., abla Springs at Lake
Pointe Woods, hereby voluntarily withdraws its Petition for Formal Administrative
7 Hearing filed on 1 March 21, 2001.
. Respectfully submitted this 14th day of September, 2001.
HOLLAND & KNIGHT LLP
Hasan B. Hartsfield ;
ween" Florida Bar No. 055130.
Mount vs west ons Post Office Drawer 810°
wegen 0°. «+: Tallahassee, Florida 32302
; (850)224-7000
Attorneys or Petitioner
es
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by U.S. Mail this 14th day of September, 2001, to Pury Lopez Santiago,
Esgq., Assistant General Counsel, Agency for Health Care Administration, 8355 NW
53rd Street, Miami, Florida 33166.
Shannon B. Hartsfield
TAL] #240586 v1
Docket for Case No: 01-001651
Issue Date |
Proceedings |
May 23, 2003 |
Final Order filed.
|
Sep. 25, 2001 |
Order Closing File issued. CASE CLOSED.
|
Sep. 14, 2001 |
Notice of Voluntary Withdrawal filed by Petitioner.
|
Aug. 22, 2001 |
Order Continuing Case in Abeyance issued (parties to advise status by September 21, 2001).
|
Aug. 21, 2001 |
Motion to Extend Order Placing Case in Abeyance filed by Petitioner.
|
Jun. 29, 2001 |
Order Continuing Case in Abeyance issued (parties to advise status by August 27, 2001).
|
Jun. 28, 2001 |
Joint Motion to Extend Order Placing Case in Abeyance filed.
|
May 09, 2001 |
Order Placing Case in Abeyance issued (parties to advise status by June 29, 2001).
|
May 08, 2001 |
Joint Response to Initial Order and Motion to Hold Case in Abeyance filed.
|
May 02, 2001 |
Petition for Formal Administrative Hearing filed.
|
May 02, 2001 |
Notice of Change of License to Conditional Status filed.
|
May 02, 2001 |
Notice (of Agency referral) filed.
|
May 02, 2001 |
Initial Order issued.
|