CERTIFIED ARTICLE NUMBER 7108 4575 1294 2050 0477 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA NO: 2002049459 MARINER HEALTH CARE OF NASHVILLE, INC., 6>- (7d d/b/a MARINER HEALTH OF PORT CHARLOTTE, 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 MARINER HEALTH CARE OF NASHVILLE, INC, d/b/a MARINER HEALTH OF PORT CHARLOTTE, (hereinafter “Respondent”) and alleges: NATURE OF THE ACTION 1) This is an action to impose a conditional licensure status effective December 12, 2002 pursuant to §§ 400.23(7)(b) and 400.23(8), Fla. Stat. AHCA seeks to impose a Conditional Licensure Status effective December 12, 2002 based upon one Class II deficiency as defined by § 400.23(8) Fla. Stat. The Respondent was cited for the deficiency set forth below as a result of an annual survey conducted on or about December 9-12, 2002. JURISDICTION 2) The Agency has jurisdiction over the Respondent pursuant to Chapter 400, Part II, Florida Statutes. 3) Venue lies in Charlotte County, Division of Administrative Hearings, pursuant to Section 120.57 Florida Statutes, and Florida Administrative Code Rule 28-106.207. ant EXHIBIT. A Page 1 of 14 CERTIFIED ARTICLE NUMBER 7° 06 4575 1294 2050 0477 PARTIES 4) 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. 5) Respondent is a skilled nursing facility located at 25325 Rampart Blvd., Port Charlotte, Florida 33983. The facility is licensed under Chapter 400, Part II, Florida Statutes and Chapter 59A-4, Florida Administrative Code. Its license number is SNF14260961 effective through 12/31/2002. COUNT I RESPONDENT FAILED TO ENSURE THAT EACH RESIDENT RECEIVED AND THE NECESSARY CARE AND SERVICES TO ATTAIN OR MAINTAIN THE HIGHEST PRACTICABLE PHYSICAL, MENTAL, AND PSYCHOSOCIAL WELL-BEIN G, IN ACCORDANCE WITH THE COMPREHENSIVE ASSESSMENT AND PLAN OF CARE. FLA ADMIN CODE R_59A-4.1288 (ADPOTING BY REFERENCE 42 CFR §483.25) FLA, STAT. 400.022(1)(k), 400.022(1)(0), 400.022(3), 400.102(1)(a), 400.121, and 400.23(8)(b), FLA. ADMIN. CODE RULES 59A-4.1288 AND S59A-4.106, CLASS II DEFICIENCY 6) AHCA re-alleges and incorporates (1) through (5) as if fully set forth herein, 7) Based on clinical record review, observation, interview with the resident and resident's family member, interviews with facility staff including the Administrator, Director of Nursing (DON), Social Services Director, CNAs and allied health, the facility failed to provide the necessary care and services to attain or maintain the highest physica] mental and psychological well being for 1 of 20 active sampled residents (Resident #13). 8) This is evidenced by: a) Resident #13 receiving a large skin tear to the left hand and several skin tears to the right wrist and multiple bruising over both hands following an attempt made by 2 staff CNAs to apply a wanderguard. b) Failure of the nursing staff to follow the Interdisciplinary Care Plan. c) Failure of the facility to assure all staff is aware of how to care for a resident during a catastrophic reaction. Page 2 of 14 9) qd) 8) h) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 Failure of the facility's Social Service Director to attempt to de-escalate a potential volatile situation. Failure to obtain Resident #13's consent for treatment with psychoactive medications. Failure to obtain physician orders for applying wanderguard. Failure to assess and update Care Plan for Resident #13 after constant refusal to wear wanderguard. The facility's lack of continuous assessment and aggressive care planning and poor interdisciplinary communication resulted in physical and potential psychological harm to Resident #13. The walking program was discontinued due to a sudden increase of resident population, Observation during meals revealed up to 38 residents were kept in wheelchairs or rerry-walkers during meal times. The findings include: a) b) c) d) Resident #13 was admitted on 11/14/02 with multiple diagnoses including but not l:mited to Meningioma (brain tumor), Diabetes, Seizure Disorder and Dementia. During the initial tour of the facility it was noted the resident had gauze rap to both wrists and hands. The Ombudsman was present during the tour with the surveyor and Unit Menager. The Ombudsman explained the he was at the facility to investigate an incident which resulted in harm to Resident #13. Due to this interview with the Ombudsman, the team selected Resident #13 for phase 1. On 12/9/02 from approximately 11:30 A.M. until 12:35 P.M., the surveyor interviewed the resident, along with his sister. The resident was alert and oriented to person, place and time. The resident knew he was in a nursing home. The resident was aware of his surroundings. Interview with the resident revealed on 12/2/02 he received bruising and open wounds to left hand and right wrist. The resident stated he wanted to go out for a walk. The resident stated he felt he Page 3 of 14 e) g) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 needed to ambulate on different surfaces including grass and concrete. The resident was in the side lobby by the physical therapy room. At this time a CNA approached him to see if he was wearing a wanderguard. The resident stated each day a CNA put a wanderguard on his wrist and each day he removed it and flushed it down the toilet. The resident told the CNA he would again do this. When the CNA approached him he stated he did not want the wanderguard on. The CNA then received assistance from another CNA. At this time the resident stated one CNA grabbed him by the wrist and another CNA tried to put the wanderguard on his arm. The resident resisted. The CNA then put the wanderguard on his belt loop of his pants. The resident stated after the altercation he was put back into his room. When asked what he did with the wanderguard, the resident stated he changed his pants. During this conversation the resident and his sister became upset. The sister stated she was here to take the resident to an Assisted Living Facility. The resident was in agreement with this decision. The sister had already set up home health services for the resident. During this interview the facility's Social Worker entered the room several times. The Social Worker stated the resident could not leave until he spoke with resident's physician. The sister and the resident stated they had already made discharge arrangements on their own. The Social Worker repeated he needed to know where they were going. The sister told the Social Worker the name of the ALF (Assisted Living Facility) the resident was going to. The Social Worker left the room and retumed in approximately 5 minutes. Again the Social Worker asked where the resident was going. The sister and the resident were becoming very anxious. The Social Worker again told the resident and his sister they could not leave until the Social Worker talked to the physician and found out where they were going. The sis*er again stated which ALF the resident would be going to that the resident's personal physician was aware. The sister then told the Social Worker that home health services had already been set up. The Social Worker than stated they could not leave until the physician was notified. The Social Page 4 of 14 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 Worker then left the room. At this time the surveyor intervened and reassured both the resident and the sister that no one could hold them here against their will, A social worker assistant then entered the room with discharge papers. The assistant told the resident he must sign before he leaves. The surveyor asked why the resident must sign and the assistant stated, "He is his own person.” h) The surveyor then asked the resident for permission to see the hand and wrist wounds. He agreed and a facility nurse was called into the room and removed the gauze dressings. The right hand had profuse bruising from the wrist spreading to the first knuckles of the four fingers. Over the ulnar area of the wrist were three distinct round healing skin tears. The left hand had profuse swelling and bruising extending from the wrist to the knuckles of all fingers. A large skin tear was present from the dorsal area of the index finger down through the web of the thumb. Skin was pulled back and an open draining area approximately 1 1/2 centimeter in width by 3 centimeters in length was exposed. i) The nurse cleansed the area and redressed both hands and wrists with obvious discomfort to the resident. J) The facility physician entered the room during the procedure, spoke with the resident and his sister, and acknowledged the resident's right to leave. The physician discharged the resident AMA (against medical advise). The resident and his sister left the facility at approximately 12:40 P.M. k) The surveyor requested a copy of the resident's chart. 1) Nurse notes lack any measurements of or descriptions of the wounds. m) Interview with the Administrator revealed no pictures were taken. n) The clinical record revealed the resident to be non-compliant with nursing and therapies. The resident is refusing selective medications including those to prevent seizures, 0) Review of the MDS (Minimum Data Set) dated 12/04/02 revealed the following: Page 5 of 14 p) q) n) s) t) u) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 i) Cognitive Skills for daily decision Making - 2. Moderately impaired - decisions poor/supervision required. ii) Indicators of delirium - periodic disordered thinking/awareness. a. = 1 Easily distracted, b. = | Period of altered perception or awareness of surroundings. iii) 1 = Behavior present, not of recent onset. iv) Behavioral symptoms (1) Wandering = 0/0 (2) Resists care = 3/] - Behavior of this type occurred daily and behavior not easily altered. Review of physician history and physicals and consultations immediately prior to admission to the facility establish the resident as alert and oriented to person place and time. The resident is aware of this diagnosis but refuses to have surgical interventions. Review of the initial psychological exam in the facility dated 11/27/02 reads resident is angry, unstable and refusing medications and the resident's mood is due to the Meningioma. Risperdal 0.25 mg. twice a day and Ativan .5 mg. every 8 hours as needed. On 12/4/02, 2 days after the injury the psychiatrist wrote the resident as poor judgment and poor insight. Resident has occasional acting out behavior. Risperdal is now increased to 0.5 mg. twice a day. Two forms for consent to administer psychoactive medications were located in the resident's record and dated 11/19/02 and one 12/3/02. Neither form is signed by the resident. The form dated 11/19/02 stated the resident refused and the form dated 12/3/02 has an LPN's signature in the space provided for the resident. ‘The resident consistently refused the ordered medications. Review of the adverse incident report and subsequent interviews with the staff involved with the incident took place on 12/9/02. Review of the facility's investigation revealed one CNA had attempted to look at the resident's ankle to see if the wanderguard was present. The resident Page 6 of 14 vy) CERTIFIED ARTICLE NUMBER 7126 4575 1294 2050 0477 kicked out at her. The CNA went to nursing due to the fact the resident had already disposed of 5 wanderguards. The nurse suggested putting it on the upper arm. The CNA asked for assistance and another CNA entered the situation. The resident stated he did not want the wenderguard on and stated he would take it off again. The written interview reads, "Restorative aid held on to one arm while I held the arm that wanderguard would be placed on. When I tried to put it on I made the decision not to go there. I then placed it on his belt loop in the back. All the while the resident was fighting trying to punch and kick. When we released him he went for his cane and attempted to raise the cane and hit us with it. Took cane away and resident hit again connecting with left side of face. I held resident's hands from the front while the aide went for the wheelchair at which point resident tried to head butt me. We got resident in chair at which point noticed resident had cut open skin. ...” The second written interview of the facility's investigation confirms the above situation. w) Interview with the CNA who attempted to place the wanderguard by herself took place on 12/9/02. x) The CNA confirmed the above information. The CNA stated when questioned, she had to replace the wanderguard everyday, herself 4 times. The CNA stated everyday the resident stated he did not want it on and she told the resident he would have to talk to the nurse or the doctor but she had to put it on. Interview with the 2nd CNA confirmed the resident always took off the wanderguard. The CNA stated the resident kept on saying, "No! No!" This CNA stated harm was done to tke resident and they now know to "Back Off" if a resident is exhibiting this type of behavior. Both (CNAs stated during the altercation with the resident on 12/3/02 the resident kept saying, "No, I don't want it." When asked why they continued even thought the resident said, "No" the CNA stated the DON said we had to put it on. Page 7 of 14 y) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 Interview with he DON revealed she did not say he had to have the wanderguard. The DON stated she was not aware the resident was refusin g or the resident had repeatedly removed the wanderguard. 10) The findings also include the following: a) b) c) d) Per the surveyor’s request, the DON gave copies of Abuse/Neglect in-services attended in the 2002-year for both CNA's. However, review of 4 random selected CNAs in the facility revealed that all 4 had missed the in- service regarding handling of residents with difficult behavior and 3 of 4 of the CNAs did not have the required Alzheimer training. Four (4) of 4 of the CNAs did not have the required 12 hours of in-service required by federal regulations. Review of the social worker's note revealed as of 12/6/02 the resident did not want to be transferred out of the facility and the Social Worker would follow-up on Monday, 12/9/02. Interview with Social Worker on 12/10/02, revealed he was unaware the resident was going to leave the facility 12/9/02. When asked why he repeatedly told the resident and his sister they could not leave without physician notification and the resident's future whereabouts, even though the situation was escalating, the Social Worker stated it was the surveyors perception of the situation. Review of the clinical record revealed on 11/27/02 the Physical Therapist had to stop the resident from exiting the door near the rehab room. Interview with Physical Therapist on 12/12/02 at 3:10 P.M., revealed she saw the resident try to leave. The resident wanted to walk outside. The Physical Therapist felt it was not safe for the resident to go out alone or even with her. She felt if she went with the resident outsi¢e she mi ght not get him to come in. She offered the resident help to walk in the courtyard but he did not want this. The resident then tried to leave anyway and she blocked the door. Assistance came and the resident still refused to come out of the doorway and threatened to sit on the ground. Eventually Page 8 of 14 8) h) J) k) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 the staff did get the resident back to his room. However, the Physical Therapist stated that even with help at hand, she did not offer the resident a chance to go for a walk outside at this time. Further review of the clinical record failed to reveal on which day the wanderguard was applied. No physician order could be found for application of the wanderguard. The clinical record lacks any assessment for the need of a wanderguard. Review of facility's policy and procedure for wanderguard placement revealed a physician order is needed. The policy continues reading, "If resident refuses to wear wanderguard or becomes combative, new [DT (Interdisciplinary Team Meeting) is required for alternative micthod to keep resident safe." The Care Plan dated 11/26/02 and up-dated 12/6/02 reads the resident is moderately impaired with decision-making skills related to dementia and history of CVA (Cerebral Vascular Accident), The approach reads to allow the resident to question and verbalize concerns. The Care ? lan continues, same dates, resident exhibits symptoms of depression with sad and anxious apathetic look. Paranoia, anxious behaviors. Agitation and hitting staff. The approaches include offering reassurance and encouragement. Staff is to step back from resident to allow, "cooling down period." The Care Plan for resident resisting care includes approaches to consider contractual agreement with physician's approval. No agreement was found on the clinical record. On 12/6/02, a Care Plan for elopement was written which included a wanderguard for safety. This was 4 days after the injury occurred. Several request were made to DON for the exact date the wanderguard were applied but as of exit from the facility, this information was not obtained. Observation in the Caribbean Café Dining Room on 12/09/02 at approximately 12 P.'M., for the noon meal, revealed 41 residents were having lunch in that dining room. Of the 41 residents present, only 4 residents were sitting in dining room chairs. Three of the remaining residents were seated in merry walkers at the dining room table and 38 residents were seated in wheelchairs. Pace 9 of 14 CERTIFIED ARTICLE: NUMBER 7106 4575 1294 2050 0477 m) Observation in the Caribbean Café Dining Room on 12/10/02 at approximately 7:30 A.M., for the n) 0) Pp) q) breakfast meal revealed a total of 20 residents at breakfast. Only 2 residents were seated in dining room chairs. Three residents were in merry walkers and 15 residents remained in their wheelchairs. Observation on 12/10/02 at approximately 11:50 A.M., during the noon meal showed 43 residents in the Caribbean Café Dining Room. Four residents were seated in dining room chairs, 3 residents were in merry walkers and 36 residents were in wheelchairs at the dining room tables. During interview with the Director of Nursing (DON) on 12/10/02 at approximately 12:15 P.M., the surveyor asked why so few residents were transferred to dining room chairs from their wheelchairs. The DON stated that the residents were unsafe to transfer. The surveyor asked if the residents had been screened by therapy for safe transfers. The DON stated that they had and were unsafe. The surveyor requested a copy of the screens. At that time, none were provided. On 12/11/02 at approximately 11:45 A.M., the surveyor observed the DON, Restorative Aide and the Occupational Therapist (OT) screening residents for safe transfers to dining room chairs. The surveyor requested a copy of the screens done. The DON supplied the surveyor with a list of 10 residents screened on that day. Of the 10 residents, 2 residents were deemed not safe for transfers, 1 resident refused and choose to stay in his wheelchair and the remaining 7 residents were safe for transfers. They will now participate in the facility's walk to dine program. During an interview with the OT on 12/12/02 at approximately 9:35 A.M., she stated! that she is usually in the dining room assisting with most meals and she helped to assess the residents for safe transfers. She also stated that the facility used to have a good walk to dine program until approximately August 2002. At that time, the facility admitted many residents who were "hi gher level of psychiatric residents and the program was not continued.” She also said that she was in the dining room that morning (12/ 12/02) and that the facility continued the walk to dine program Page 10 of 14 9) CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 with the screened residents and that she felt the residents did better in dining room chairs for meals. Interview with the Restorative Aide on 12/12/02 at approximately 9:50 A.M., con“irmed the previous walk to dine program. He stated that the program started to taper off about August 2002 and people who used to be walked to dine were wheeled to the tables for meals. He also stated that the facility received many new admissions that had psychiatric diagnoses and were mildly resistant to care. Also, many residents require more than one person to assist for transfer. The program stopped at this time. Based upon the forgoing, the Respondent violated 42 CFR §483.25, which requires the Respondent to provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care. Fla. Admin Code R. 59A-4.1288 implements $$ 400.102, 400.121(2), and 400.23 Fla. Stat. and incorporates by reference 42 CFR 483.25. The Respondent also violated § 400.022(1)(I) and 400.022(3) Florida Statutes, which require the Respondent to ensure the resident’s right to receive adequate and appropriate health care and protective and support services, and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency. 10) Based upon the foregoing, the Respondent violated Florida Administrative Code Rule S9A- 4.1288, which required the Respondent to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property, including physical abuse. That rule incorporates by reference 42 CFR § 483.13. 11) The foregoing also constitutes a violation of § 400.022, Fla. Stat., which requires the Respondent to ensure the residents’ right to refise medication or treatment and to be informed of the Page 11 of 14 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 consequences of such decisions, unless determined unable to provide informed consent under state law. 12) The foregoing also constitutes a violation of § 400.022, Fla. Stat. which requires the Respondent to ensure the residents’ right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and ftom physical and chemical restraints, excep! those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety. 13)The foregoing also constitutes a violation of Florida Administrative Code Rule 59A-4.106, which required the Respondent to maintain policies and procedures in specialized relabilitative and restorative services; 14) The foregoing also constitutes an intentional or negligent act materially affecting the health or safety of residents of the facility as detined by § 400.102 (1)(a), Fla. Stat. and is subject to a fine under § 400.121 Fla. Stat. 15) The foregoing constitutes a Class II deficiency as defined by § 400.23(8)(b) Fla. Stat. as follows: A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, menta., and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subjec: to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a pattemed deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency. Page 12 of 14 CERTIFIED ARTICLE NUMBER 7106 4575 1294 2050 0477 16) The above referenced violation constitutes the grounds for the imposed Class II deficiency and for which the imposition of a conditional license is authorized pursuant to §§ 4C0.102(1)(d), and 400.23(7)(b), Fla. Stat. CLAIM FOR RELIEF WHEREFORE, AHCA requests this Court to order the followin g relief: A. Make factual and legal findings in favor of AHCA on Count I, B. Uphold the issuance of the conditional license attached hereto as Exhibit AP DISPLAY OF LICENSE Pursuant to §§ 400.062(5) and 400.23(7)(e), Fla. Stat. (2001), Respondent shall post the license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility. EXHIBIT LIST Exhibit “A” CONDITIONAL LICENSE License # SNF14260961 ; Certificate #9554 Effective Date: 12/12/2002 Expiration Date: 12/31/2002 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 Counsel, Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop #3, Tallahassee, FL 32308. Page 13 of 14 CERTIFIED ARTICLE NUMBER 706 4575 1294 2050 0477 RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted, Joanna Daniels 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 CERTIFICATE OF SERVICE THEREBY CERTIFY that a copy hereof has been furnished to Administrator, Mariner Health of Port Charlotte, 25325 Rampart Blvd., Port Charlotte, Florida 33983 Return Receipt No. 7106 4575 1294 2050 0477, on February \) , 2003. Copies furnished to: Wendy Adams Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (Interoffice Mail) JD/nec mn Benl, Joanna Daniels Assistant General Counsel Joanna Daniels Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (Interoffice Mail) Page 14 of 14

Docket for Case No: 03-001170