L4- IRS CERTIFIED ARTICLE NUMBER 7106 4575 1294860 4art y * STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA NO; 2002012511 vs. TARPON HEALTH CARE ASSOCIATES, LLC, d/b/a TARPON HEALTH AND REHABILITATION CENTER, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter “AHCA”), by and through the undersigned counsel, and files this Administrative Complaint, against TARPON HEALTH CARE ASSOCIATES, LLC, d/b/a TARPON HEALTH AND REHABILITATION CENTER, (hereinafter “Respondent”) and alleges: NATURE OF THE ACTION 1. This is an action to impose four (4) administrative fines in the total amount of eleven thousand dollars ($11,000) pursuant to Sections 400.102(1) (d), 400.121(1), 400.121(2), and 400.23, Fla. Stat. (2001) and to assess costs related to the investigation and prosecution of this case, pursuant to Section 400.121(10), Fla. Stat. (2001). CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 2. The Respondent was cited for the deficiencies set forth below as a result of a follow-up annual visit on or about February 12, 2002. The original survey was conducted on or about January 2, 2002. JURISDICTION AND VENUE 3. The Agency has jurisdiction over the Respondent pursuant to Chapter 400, Part II, Florida Statutes. 4. Venue lies in Pinellas County, Division of Administrative Hearings, pursuant to Sections 120.57, and 400.121(1)(e) Florida Statutes, and Florida Administrative Code Rule 28-106.207. PARTIES 5. AHCA is the enforcing authority with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes and Chapter 59A-4, Florida Administrative Code. 6. Respondent is a nursing home located at 501 South Walton Avenue, Tarpon Springs, Florida. The facility is licensed under Chapter 400, Part II, Florida Statutes and Chapter 59A-4, Florida Administrative Code. Its license number is 15520951 effective December 7, 2001 through November 30, 2002; the certificate number is 8482. Page 2 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 COUNT I RESPONDENT FAILED TO FOLLOW ALL PHYSICIAN ORDERS AS PRESCRIBED, AND IF NOT FOLLOWED, THE REASON WAS NOT RECORDED ON THE RESIDENT’S MEDICAL RECORD DURING THAT SHIFT. §§ 400.102(1) (d), 400.121(1), 400.121(2), 400.23(8) (c), FLA STAT (2001); FLA ADMIN CODE R 59A-4.107(5), UNCORRECTED CLASS III DEFICIENCY 7. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 8. On or about January 2, 2002, AHCA conducted a survey of the Respondent’s above-named facility. 9. During that January survey, AHCA determined that the facility did not ensure that all Physician's orders were followed for 2 of 13 sampled residents (#6, #7) putting residents at risk for medical decline when they did not receive prescribed care and treatment. That determination was made based upon the following observations, record review, and interview(s) : A. The record review of resident #6 revealed he was readmitted to the facility on July 22, 2001 after a hospital admission for seizures. His diagnoses included Hypertension, Dysphagia, and Seizures. The physician ordered a Dilantin level every 3 months. The Resident's medical record included Dilantin levels for August 2001, but no Dilantin levels were done for November 2001 (3 month interval). An interview with the Director of Nursing (DON) on January 3, 2002 at 11:00 a.m. confirmed the omission of the lab report, and the Respondent was unable to provide the lab results. B. The record review of resident #7 revealed a Speech Therapy evaluation in December 2000 at which time lemon ice was recommended to be provided to the Resident for oral stimulation at all meals. A Physician's order dated December 4, 2000 reflected the diet order including the lemon or Italian ice at all meals. In a Speech therapy note, and Plan of Therapy dated February 5, 2001 the lemon ice is referred to as part of the Page 3 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 diet order. The Speech Therapist documents "Dietary informed of diet change." The Registered Dietitian note on November 1, 2001 documents the diet order as including lemon ice with meals. During meal observations on January 2, 2002 at noon, and on January 3, 2002 at 7:00 a.m., there was no Italian ice noted on the resident's tray. Cc. An interview with the Dietary Manager and a Dietary Aide on January 3, 2002 at 1:30 p.m., revealed that there was Italian ice available, but no Resident currently had an order to receive Italian ice with their meals. When the Surveyor specifically asked about Resident #7, both reported that Resident #7 did not have an order for the Italian ice, and pulled the Resident's diet slip to show the Surveyor that it was not documented that the Italian ice was a part of the diet order. 10. Based upon the forgoing, the Respondent was in violation of Fla. Admin. Code R. 59A-4.107(5), which requires the Respondent to follow all physician orders as prescribed, and if not followed, record the reason on the resident’s medical record during that shift. 11. AHCA assigned a mandatory correction date of January 7, 2002 for this violation. 12. On or about February 12, 2002, AHCA conducted a follow-up survey. 13. During this February 2002 survey, AHCA again determined that the Respondent failed to either follow all physician orders prescribed, or when the orders were not followed, failed to record the reason on the resident’s medical record during that shift. 14. That determination was made based upon the following findings from interviews and resident record reviews interviews: Page 4 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 A. The review of Resident #19's clinical record revealed a physician's order dated February 4, 2002 for Urinalysis with Culture and Sensitivity to be done in the morning. The record review on or about February 12, 2002 revealed no documentation that the urinalysis had been done and no documented results. An interview with two nurses on the unit at approximately 2:30 p.m. revealed that the urinalysis had not been done as ordered. 15. The Respondent had not corrected the deficiency before the mandatory correction date. 16. Based upon the forgoing, the Respondent had an uncorrected Class III deficiency under Fla. Admin. Code R. 59A-4.107(5), which requires the Respondent to follow all physician orders as prescribed, and if not followed, record the reason on the resident’s medical record during that shift. This act also violated §§ 400.102(1)(d), and 400.121(2), Fla. Stat. (2001). 17. For this Class III deficiency, a fine of one thousand dollars ($1,000) is authorized pursuant to §§ 400.102(1) (a), 400.102(1) (d), and 400.23(8)(c), Fla. Stat. (2001). COUNT II RESPONDENT FAILED TO HAVE SUFFICIENT NURSING STAFF, ON A 24-HOUR BASIS TO PROVIDE NURSING AND RELATED SERVICES TO RESIDENTS IN ORDER TO MAINTAIN THE HIGHEST PRACTICABLE PHYSICAL MENTAL, AND PSYCHOSOCIAL WELL-BEING OF EACH RESIDENT, AS DETERMINED BY RESIDENT ASSESSMENTS AND INDIVIDUAL PLANS OF CARE. §400.23 FLA STAT (2000) §400.23 FLA STAT (2001), AND FLA ADMIN CODE R 59A-4.108(4). UNCORRECTED CLASS III DEFICIENCY 18. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 19. On or about January 2, 2002, AHCA conducted a survey of the Respondent’s above-named facility. Page 5 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 20. During that January survey, AHCA determined that the Respondent failed to meet the state minimum staffing requirements for Certified Nursing Assistants for five of forty- two days selected for the sample. 21. Based upon the record review and staff interview(s), AHCA found: A. Record review of staff schedules and time sheets on January 4, 2002 revealed that the facility did not meet the state minimum staffing requirements for Certified Nursing Assistants (CNA) which is 1.7 hours per resident per day, for the following days: 6/24/01 Census=51 Required 86.7 CNA hours, Facility had 80.09 CNA hours. 9/14/01 Census=54 Required 91.8 CNA hours, Facility had 75.57 CNA hours. 9/16/01 Census=54 Required 91.8 CNA hours, Facility had 74.49 CNA hours. 9/23/01 Census=54 Required 91.8 CNA hours, Facility had 91.42 CNA hours. 9/24/01 Census=55 Required 93.5 CNA hours, Facility had 90.12 CNA hours B. An interview with the Director of Nursing on January 4, 2002 at nine o’clock confirmed that the Respondent did not meet staffing requirements at this time. 22. Section 440.23(3) (a) Fla. Stat. (2000) stated: The agency shall adopt rules providing for the minimum staffing requirements for nursing homes. These requirements shall include, for each nursing home facility, a minimum certified nursing assistant staffing and a minimum licensed nursing staffing per resident per day, including evening and night shifts and weekends. Agency rules shall specify requirements for documentation of compliance with staffing standards, sanctions for violation of such standards, and requirements for daily posting of the names of staff on duty for the benefit of facility residents and the public. The agency shall recognize the use of Page 6 of 15 23. CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 licensed nurses for compliance with minimum staffing requirements for certified nursing assistants, provided that the facility otherwise meets the minimum staffing requirements for licensed nurses and that the licensed nurses so recognized are performing the duties of a certified nursing assistant. Unless otherwise approved by the agency, licensed nurses counted towards the minimum staffing requirements for certified nursing assistants must exclusively perform the duties of a certified nursing assistant for the entire shift and shall not also be counted towards the minimum staffing requirements for licensed nurses. If the agency approved a facility's request to use a licensed nurse to perform both licensed nursing and certified nursing assistant duties, the facility must allocate the amount of staff time specifically spent on certified nursing assistant duties for the purpose of - documenting compliance with minimum — staffing requirements for certified and licensed nursing staff. In no event may the hours of a licensed nurse with dual job responsibilities be counted twice. Pursuant to §400.23, AHCA promulgated Fla. Code R. 4.108(4) that provided and still provides: 24. The nursing home facility shall have sufficient nursing staff, on a 24-hour basis to provide nursing and related services to residents in order to maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. The facility will staff, at a minimum, an average of 1.7 hours of certified nursing assistant and 6 hours of licensed nursing staff time for each resident during a 24 hour period. Contrary to Fla. Admin. Code R. 59A-4.108(4), Respondent had insufficient nursing staff on June 24, September 14, 2001, September 16, 2001, September 23, September 24, 2001 Page 7 of 15 59A- the 2001, 2001, CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 25. AHCA assigned a mandatory correction date of February 4, 2002. 26. On or about February 12, 2002, AHCA performed a follow-up survey of the Respondent. 27. During that February 2002 survey, AHCA made the following findings based upon interviews and resident record reviews. A. From January 1, 2002 thru February 4, 2002, the daily census of the Respondent was at or above fifty residents according to the January & February 2002 "Monthly Census Report." The staffing records for the time period in question revealed that the facility had one licensed person on duty for the 11 to 7 shift. An interview with the Nursing Home Administrator and the Acting Director of Nursing confirmed this. 28. Section 440.23(3) (a), Fla. Stat. (2001) provides in relevant part: {Bleginning January 1, 2002, no facility shall staff below one certified nursing assistant per 20 residents, and a minimum licensed nursing staffing of 1.0 hour of direct resident care per resident per day but never below one licensed nurse per 40 residents. (emphasis added. ) 29. The Respondent had not corrected the deficiency in nursing staff before the mandatory correction date. 30. Based upon the forgoing, the Respondent had an uncorrected Class III deficiency as defined by § 400.23(8)(c), Fla. Stat. when it did not maintain the minimum nurse staffing requirements of § 400.23(3) (a), Fla. Stat. (2001) and Fla. Admin. Code R. 59A-4.108 (4). Page 8 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 31. The above referenced violation constitutes the grounds for the imposed uncorrected Class III deficiency and for which a fine of two thousand dollars ($2,000) is authorized under Sections 400.102(1) (a), 400.102(1)(d), and 400.23(8)(c), Fla. Stat. (2001). COUNT III RESPONDENT FAILED TO STORE, PREPARE, DISTRIBUTE AND SERVE FOOD UNDER SANITARY CONDITIONS. §§ 400.102(1) (d), 400.121(1), 400.121(2), 400.23(8)(c), FLA STAT (2001), FLA ADMIN CODE R 59A- 4.1288 (ADPOTING BY REFERENCE 42 CFR §483.35(h) (2)) UNCORRECTED CLASS III DEFICIENCY 32. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 33. On or about January 2, 2002, AHCA conducted a survey of the Respondent. 34. During that January 2002 survey, AHCA observed the following: A. During the initial tour of the facility kitchen with the Dietary Manager at nine o’ clock on January 2, 2002, the ceiling of the dish machine room was noted to have peeling, flaking paint, the overhead pipes were dusty, the ceiling vent was black with biogrowth, and there were fluorescent lights without protective coverings. B. During the Life Safety tour of the facility kitchen at two-thirty in the afternoon on January 2, 2002, p.m., a Dietary Aide was observed testing the firmness of gelatin with her bare finger. Since the gelatin was not firm, the Dietary Aide put her finger into her mouth to lick off the residue. She then used that same finger that had been in her mouth to remove ice crystals from the top of the gelatin. C. During the comprehensive tour of the facility kitchen at ten o’clock on January 3, 2002, the following concerns were noted: Page 9 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 1. Several fluorescent lights were without protective coverings or the protective coverings were hanging off the lights precariously; 2. Blender was stored with the lid on and pooled water in the bottom; 3. Slicer had a dirty food tray; 4. Several scoops stored in a drawer were observed with pooled water, and one was encrusted with a dark green substance. 35. Based upon these findings, the Respondent violated Fla. Admin. Code R. 59A-4.1288 (adopting by reference 42 CFR §483.35(h)(2)) by failing to store, prepare, distribute and serve food under sanitary conditions 36. AHCA assigned a mandatory correction date of January 7, 2002 for this violation. 37. On or about February 12, 2002, AHCA performed a follow-up survey of the Respondent. 38. During that February 2002 survey, AHCA determined that the Respondent continued to fail to store, prepare, distribute, and serve food under sanitary conditions. 39. During the tour conducted on or about February 12, 2002 at nine-thirty in the morning with the Certified Dietary Manager (C.D.M.) the AHCA agent made the following observations: a. The stove had grease buildup in the grates that was particularly heavy around the four burner bases. b. The thermometers in two beverage refrigerators were broken, thus making it impossible to determine whether or not beverages were being stored at proper temperatures. c. There were several unsealed packages of dried foods, including dried onions and potatoes, along with cornbread, cake and biscuit mix under the food preparation table. Page 10 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 dad. Six opened spice containers were on the same shelf ang all the spice containers were tacky to touch with a buildup of residue. e. In the walk-in refrigerator, there were unlabeled and an undated "cake" (identified by the CDM), undated turkey breast, and an onion covered with green-gray bio growth. f. In the walk-in freezer there were opened, unlabeled and undated chicken patties and hash brown potatoes (identified by the CDM). g. In the dry food storage room there were two cans of apple jelly that were rusted, a can of fruit cocktail with several deep indentations and a bag of flour which was opened and had not been resealed. 40. The Respondent had not corrected the deficiency before the mandatory correction date. 41. Based upon the forgoing, the Respondent had an uncorrected Class III deficiency as defined by § 400.23(8)(c), Fla. Stat. (2001). It violated Fla. Admin. Code R. 59A-4.1288 (adopting by reference 42 CFR $483.35 (h) (2)), and §§ 400.23(1), 400.23 (2) (£),. 400.102(1)(d), 400.141 Fila. Stat. (2001) when it continued to fail to store, prepare, distribute, and serve food under sanitary conditions. 42. The above referenced violation constitutes the grounds for the imposed uncorrected Class IIT deficiency and for which a fine of three thousand dollars ($3,000) is authorized under Sections 400.102 (1) (a), 400.102 (1) (d), 400.121(1), and 400.23(8) (b), Fla. Stat. (2001). Page 11 of 15 SSS [oils eseehusses om CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 COUNT IV RESPONDENT FAILED TO COMPLY WITH STATE MINIMUM- STAFFING REQUIREMENTS FOR TWO CONSECUTIVE DAYS AND THEREBY IS PROHIBITED FROM ACCEPTING NEW ADMISSIONS UNTIL THE FACILITY HAS ACHIEVED THE MINIMUM- STAFFING REQUIREMENTS FOR A PERIOD OF 6 CONSECUTIVE DAYS 400.141(15) (d), FLA STAT (2001) CLASS II DEFICIENCY 43. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 44. Based upon interviews and resident record reviews, the Respondent failed to self-impose a moratorium on admissions when the nursing staff to patient ratio fell below state minimums requirements for two consecutive days. 45. From January 1, 2002 thru February 4, 2002, the daily census was at or above fifty residents according to the January & February 2002 "Monthly Census Report." The staffing records for the time period in question revealed that the facility had one licensed person on duty for the 11 to 7 shift. 46. Section 440.23(3) (a), Fla. stat. (2001) required the Respondent to staff at least one licensed nurse per forty residents. 47. The AHCA agent interviewed the Nursing Home Administrator and the Acting Director of Nursing who confirmed that the Respondent had failed to self impose the moratorium on admissions as required and had accepted new admissions. 48. The above referenced violation constitutes the grounds for Page 12 of 15 Eee CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4874 the imposed Class II deficiency and for which a fine of five thousand dollars ($5,000) is authorized under Sections 400.102 (1) (a), 400.102 (1) (da), 400.121(2), 400.141(15) (da), and 400.23(8) (b), Fla. Stat. (2001). CLAIM FOR RELIEF WHEREFORE, AHCA requests this Court to order the following relief: A. Make factual and legal findings in favor of the Agency on Counts I, II, III and IV; B. Impose four (4) fines of a total of eleven thousand dollars ($11,000) for the violations cited in Count I, Count II, Count III, and Count IV, against the respondent under §§ 400.102 (1) (a), 400.102 (1) (a), 400.121(1), and 400.23(8) (b), Fla. Stat. (2001). c. Assess costs related to the investigation and Prosecution of this case, pursuant to § 400.121(10), Fla. Stat. (2001). NOTICE The Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Specific options for administrative action are set out in the attached Explanation of Rights (one page) and Election of Rights (one page). All requests for hearing shall be made to the attention of Joanna Daniels, Assistant General Page 13 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 Counsel, Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop #3, Tallahassee, FL 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND Jéanna EE FL Bar #0118321 Assistant General Counsel Agency for Health Care Administration 2727 Mahan Dr., MS #3 Tallahassee, FL 32301 (850) 922-5873 Fax (850) 413-9313 I HEREBY CERTIFY that a copy hereof has been furnished to Administrator, Tarpon Health & Rehab. Center, 501 South Walton Avenue, Tarpon Springs, Florida 34689, Return Receipt No. 7106 . Pas 4575 1294 2050 4871, by U.S. Certified Mail on July Ff “7a002. © LPL Lb Jéanna Daniels Administrator Tarpon Health & Rehabilitation Center 501 South Walton Avenue Tarpon Springs, FL 34689 (U.S. Certified Mail) Copies furnished to: Page 14 of 15 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 4871 Wendy Adams Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (Interoffice Mail) Joanna Daniels Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 Page 15 of 15

Docket for Case No: 02-003257