om TOF OO-k STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 4 AGENCY FOR HEALTH CARE Certified ADMINISTRATION, 7hOb 4575 1254 S080 RS RECORD Petitioner, vs. AHCA Case #2003000721 HCF OF OHIO, INC. d/b/a SUNSHINE GARDENS, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “Agency”, by and through the undersigned counsel, and files this Administrative Complaint against HCF OF OHIO, INC. d/b/a SUNSHINE GARDENS (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes, and alleges: NATURE OF ACTION 1. This is an action to impose administrative fines. JURISDICTION AND VENUE 2. AHCA and the Division of Administrative Hearings, in the event a formal hearing is requested, have jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes. 3. Venue shall be determined pursuant to Rule 28-106.207, Fla. Admin. Code. PARTIES 4. AHCA is the regulatory agency 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 Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended); Chapter 400, Part III, Florida Statutes, and; Chapter 58A-5, Fla. Admin. Code, respectively. 5. Respondent, HCF OF OHIO, INC. owns and operates an assisted living facility in the state of Florida. The facility, SUNSHINE GARDENS (“Facility”), is a 60- bed assisted living facility located at 12080 SW Highway 484, Dunnellon, Florida 34432. Respondent is licensed as an assisted living facility, having been issued certificate #8142. Respondent was all times material hereto, a licensed facility under the licensing authority of AHCA, and was required to comply with all applicable regulations, statutes and rules. COUNT I UNCORRECTED CLASS II VIOLATION FOR FAILURE TO COMPLY WITH LAWS & REGULATIONS CONCERNING WRITTEN CONTRACTS WITH FACILITY RESIDENTS Section 400.424(1) -{2), Florida Statutes Section 400.427(5), Florida Statutes 58A-5.025 Resident Contracts. Florida Administrative Code 6. AHCA re-alleges and incorporates by reference paragraphs (1) through (5) above as if fully set forth herein. 7. The regulatory provisions of the Florida Statutes that are pertinent to this alleged violation read as follows: §400.424 Contracts.-- (1) The presence of each resident in a facility shall be covered by a contract, executed at the time of admission or prior thereto, between the licensee and the resident or his or her designee or legal representative. Each party to the contract shall be provided with a duplicate original thereof, and the licensee shall keep on file in the facility all such contracts. The licensee may not destroy or otherwise dispose of any such contract until 5 years after its expiration. (2) Each contract must contain express provisions specifically setting forth the services and accommodations to be provided by the facility; the rates or charges, provision for at least 30 days' written notice of a rate increase, the rights, duties, and obligations of the residents, other than those specified in s. 400.428; and other matters that the parties deem appropriate. * * * 400.427 Property and personal affairs of residents.— (5) Any personal funds available to facility residents may be used by residents as they choose to obtain clothing, personal items, leisure activities, and other supplies and services for their personal use. A facility may not demand, require, or contract for payment of all or any part of the personal funds in satisfaction of the facility rate for supplies and services beyond that amount agreed to in writing and may not levy an additional charge to the individual or the account for any supplies or services that the facility has agreed to by contract to provide as part of the standard monthly rate. Any service or supplies provided by the facility which are charged separately to the individual or the account may be provided only with the specific written consent of the individual, who shall be furnished in advance of the provision of the services or supplies with an itemized written statement to be attached to the contract setting forth the charges for the services or supplies. [Emphasis added.] 8. The regulatory provision of the Florida Administrative Code that is pertinent to this alleged violation reads as follows: 58A-5.025 Resident Contracts. (1) Pursuant to Section 400.424, F.S., each resident or the resident’s legal representative, shall, prior to or at the time of admission, execute a contract with the facility which contains the following provisions: Etta (b) The basic daily, weekly, or monthly rate. [Emphasis added.] 9. AHCA surveyors conducted a biennial survey of Respondent’s facility on October 17, 2002, and cited Respondent for two (2) class III deficiencies related to failures of the facility to contract for services as required by law, which two related deficiencies are combined here to establish a single violation. The facts existing on the date of the survey to support the charges in this count include but are not limited to the following:—--- — File review of the contract for Resident #1 revealed that it was not signed. Since the resident’s 8/20/02 admission, the resident was placed in the secured unit and per 10/17/02 1:00 p.m. staff interview, the resident’s cost of care significantly changed as a result thereof. Staff interview further revealed that the rate changes were implemented with only a verbal agreement made between the resident’s spouse and the facility. Review of the contracts for all sample selected residents revealed that the contracts did not contain the dollar amount of the cost of care for any period of time. Per the October 17, 2002 staff interview conducted at 1:30 p.m., the residents or responsible parties were verbally told the amount of the cost of care. 10. Om October 17, 2002, AHCA also provided Respondent with a mandated correction date of November17, 2002, within which to correct the referenced deficient practices in its contractual relationships with residents. 11. AHCA surveyors conducted a follow-up survey of Respondent’s facility on December 12, 2002. A review of records revealed the following: Record review for Resident #1 revealed that the charge nurse had initiated the paperwork for a ‘Level of Care Status Change’ which had been signed by the nurse and business office, but was not signed by the resident or resident’s representative. An interview with the administrator further revealed the following: a. The facility’s proposed new contract form had been submitted to the corporate lawyer for revision and returned to the facility. The administrator stated that the fees were listed on a separate work sheet, which was not in the contract. b. In review of the contract, it was discovered that the contract still does not contain an area for the specific amounts, basic rates or ancillary charges prior to the signature page. 12. Respondent’s failure to meet requirements of law for a written contract, to provide written notice to Resident #1 of changes in his/her level of care, to have Resident #1 or his/her representative sign a contract or changes to a contract for the change in the level of care, and to provide the basic rates for services and care in its contracts generally, a-violation-of the above-referenced-provisions of §400:424-and $400-427,-Florida——_———_———_---- ns | x Statutes, and the references administrative rule on resident contracts. After notice of the deficient practices in its contractual relationships with affected residents, Respondent did not timely correct its deficient practices in its contractual relationships with residents by November 13, 2002. 13. Respondent’s failure (a) as of October 17, 2002, to provide any written signed contract, any written notice of changes in the level of care to the referenced resident, and to secure the written consent of the resident or the resident’s representative to secure the written consent of the resident or the resident’s representative to sach changes in the level of care; and (b) to timely correct that deficiency, is an uncerrected class III violation. This constitutes grounds for the imposition of an administrative fine in the amount of $500. A class III violation is defined as one that “the agency determines indirectly or potentially threatens the physical or emotional health, safety, or security of the facility residents, other than class I or class I violations.” COUNT II UNCORRECTED CLASS III VIOLATION FOR FAILURE TO HAVE A FIRE INSPECTION CONDUCTED ANNUALLY Section 400.441(1)(a)1.m., Florida Statutes 14. AHCA re-alleges and incorporates by reference paragraphs (1) through (5) above as if fully set forth herein. 15. §400.441, Florida Statutes, which is the pertinent statute to this alleged violation in this count, is related to standards applicable to adult living facilities (ALF’s) which standards exist in “order to provide safe and sanitary facilities and the highest ” quality of resident care accommodating the needs and preferences of residents . . . . ——-——-—F subsection (1). These “(a)-*—*-* reasonable -and-fair minimum standards in relation to * * * requirements for and maintenance of facilities * * * which will ensure the health, safety, and comfort of residents and protection from fire hazard, including adequate » provisions for fi re alarm and other fire protection suitable to the size of the structure” include the express statutory requirement in paragraph (a)1.m. that: m. * * * All licensed facilities must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction. [Emphasis added.] 16. AHCA surveyors conducted a biennial survey of Respondent’s facility on October 17, 2002, and cited Re spondent for a class III violation of the above-mentioned statute, A review at that time of the facility’s files revealed that the last fire inspection meeting the requirements of the referenced statute had been completed on September 13, 2001. 17. On October 17, 2002, AHCA also provided Respondent with a mandated correction date of November 13, 2002, within which to correct the above-described deficiency. 18. AHCA surveyors conducted a follow-up survey of Respondent’s facility on December 12, 2002. Upon interview with the administrator, it was revealed that a fire safety inspection had been scheduled, but still had not yet been performed. 19. Respondent’s failure as of October 17, 2002, to have conducted the required fire inspection for more than a year constitutes a violation of §400.441(1)(a)1.m., Florida Statutes. Respondent did not t imely correct this deficiency by November 13, 2002. 20. Respondent's failure both (a) to have the required fire inspection conducted within a year prior to the survey visit of October 17, 2002, and then (b) to correct the hi ; ‘deficiency in atimely-manner, is an-uncorrected class JI-violation-which constitutes —— ——-—--—-~--— grounds for the imposition of an administrative fine in the amount of $500. A class II violation is defined as one that “the agency determines indirectly or potentially threatens the physical or emotional health, safety, or security of the facility residents, other than class I or class II violations.” COUNT UI UNCORRECTED CLASS III VIOLATION FOR FAILURE TO ENSURE THAT ALL DIRECT CARE STAFF RECEIVE CERTAIN TRAINING WITHIN 30 DAYS OF EMPLOYMENT Rule 58A-5.0191(2)(b), Fla. Admin. Code Rule 584-5.0191(2)(c), Fla. Admin. Code 21. AHCA re-alleges and incorporates by reference paragraphs (1) through (5) above as if fully set forth herein. 22. The regulatory provisions of the Florida Administrative Code that are pertinent to this alleged violation read as follows: 58A-5.0191 Staff Training Requirements and Training Fees. ae (2) STAFF IN-SERVICE TRAINING. Each facility must provide the following in-service training to facility staff. bt (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. Facility Emergency procedures including chain-of-command and staff roles relating to emergency evacuation. * OK OK (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. 23. AHCA surveyors conducted a biennial survey of Respondent’s facility on October 17, 2002, and cited Respondent for two class III violations of two different subsections of the above-mentioned regulations, based on the following: As to subsection (2)(b) of the Rule: Employee file review revealed that employees G.L., C.M. and R.T. have been working for over 30 days and have not received training in reporting of major incidents or facility emergency procedures including chain of command and staff roles relating to emergency evacuation. As to subsection (2)(c) of the Rule: The hire dates for employees G.L., C.M., and R.T. were 8/8/02, 3/10/02 and 9/4/02 and file review revealed that none of them had received training in resident rights, or recognizing and reporting resident abuse, neglect, and exploitation. 24. On October 17, 2002, AHCA also provided Respondent with a mandated correction date of November 13, 2002, as to the deficiency under subsection (2)(b) and November 14, 2002, as to the deficiency cited under subsection (2)(c), within which to correct the above-described deficient practices regarding training of staff within thirty (30) days of employment. 25. AHCA surveyors conducted a follow-up survey of Respondent’s facility on December 12, 2002. An interview with the administrator revealed the following: The facility planned to implement a new orientation procedure for employees to include training of employees in the areas reported in paragraph 23 as those in which the facility was deficient in providing training. However, the procedure still was not in place as of December 12, 2002. 26. Respondent’s failure (a) to ensure that all direct care staff receive training within 30 days of employment as to the training matters referenced in subsection (2)(a) and subsection (2)(c) of Rule 58A-5.0191, Fla. Admin. Code, and (b) to correct such deficient practices within the time mandated by the Agency, constitutes an uncorrected class III violation, or perhaps two (2) such violations, of the referenced regulatory provisions. 27. Respondent’s aforesaid conduct constitutes grounds for the imposition of an administrative fine in the amount of $500 as to this count. A class III violation is defined as one that “the agency determines indirectly or potentially threatens the physical or emotional health, safety, or security of the facility residents, other than class I or class II violations.” COUNT IV UNCORRECTED CLASS II VIOLATION FOR FAILURE TO ENSURE THAT ALL EMPLOYEES PROVIDE VERIFICATION OF FREEDOM OF COMMUNICABLE DISEASE AS REQUIRED BY LAW Rule 58A-5.019(2)(a), Fla. Admin. Code Rule 58A-5.024(2)(a), Fla. Admin. Code 28. | AHCA re-alleges and incorporates by reference paragraphs (1) through (5) above as if fully set forth herein. 29. The regulatory provisions of the Florida Administrative Code that are pertinent to this alleged violation read as follows: 58A-5.019 Staffing Standards. OR (2) STAFF. (a) Newly hired staff shall have 30 days to submit a statement from a health care provider, based on an examination conducted within the last six months, that the... person does not have any signs or symptoms of a communicable disease including tuberculosis. Freedom from tuberculosis must be documented on an annually basis. A person with a positive tuberculosis test must submit a health care provider’s statement that the person does not constitute a risk of communicating tuberculosis. Newly hired staff does not include an employee transferring from one facility to another that is under the same management or ownership, without a break in service. If any staff member is later found to have, or is suspected of having, a communicable disease, he/she shall be removed from duties until the administrator determines that such condition no longer exists. 58A-5.024(2)(a) Records. _(2) STAFF RECORDS. ,t at hal (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis... 30. | AHCA surveyors conducted a biennial survey of Respondent’s facility on October 17, 2002, and cited Respondent for a class III violation of the above-mentioned statute based on the following: Employees G.L., C.M., and R.T. have all been employed for over 30 days without providing verification of freedom of communicable disease including tuberculosis. 31. On October 17, 2002, AHCA also provided Respondent with a mandated correction date of November14, 2002, within which to correct the above-described deficiency. 32. AECA surveyors conducted a follow-up survey of Respondent’s facility on December 12, 2002. An interview with the administrator revealed the following: The facility had contacted a local rural health clinic for the tuberculosis testing and communicable disease statements but found that the cost per emplovee was $55.00. The administrator stated that they were looking for another health care provider to perform the service. 33. Respondent’s failure to ensure that all employees provide verification of freedom of communicable disease as required is a violation of Rules 58A-5.019(2)(a), and 5 8A-5.024( 2)(a), Fla. Admin. Code. Further, Respondent did not correct the deficient practice within the time required. 34, Respondent’s failure (a) to ensure that all employees provide verification of freedom of communicable disease as required, and (b) to correct the deficient practice within the time required for correction, constitutes an uncorrected class III violation and grounds for the imposition of an administrative fine in the amount of $500. A class III ——_—_—--—-violation-is-defined-as-one-that“‘the-agency-determines indirectly_or potentially threatens. 10 the physical or emotional health, safety, or security of the facility residents, other than class I or class II violations.” COUNT V UNCORRECTED CLASS III VIOLATION FOR FAILURE TO ENSURE THAT EMPLOYEES RECEIVE ALZHEIMER’S TRAINING WITHIN 3 MONTHS OF EMPLOYMENT Section 400.4178(2)(a), Florida Statutes Rule 58A-5.0191(9)(a), Fla. Admin. Code Rule 58A-5.024(2)(a)1, Fla. Admin. Code 35. | AHCA re-alleges and incorporates by reference paragraphs (1) through (5) above as if fully set forth herein. 36. The regulatory provisions of the Florida Statutes and the Florida Administrative Code that are pertinent to this alleged violation read as follows: 400.4178 Special care for persons with Alzheimer’s disease or other related disorders. Ps td (2)(a) An individual who is employed by a facility that provides special care for residents with Alzheimer’s disease or other related disorders, and who has regular contact with such residents, must complete up to 4 hours of initial dementia- specific training developed or approved by the department. The training shall be completed within 9 months after beginning employment and shall satisfy the core training requirements of s. 400.452(2)(g). 58A-5.0191 Staff Training Requirements ard Training Fees. eR (9) ALZHEIMER’S DISEASE AND RELATED DISORDERS. Facilities which advertise that they provide special care for persons with Alzheimer’s disease and related disorders, or who maintain secured areas as described in Rule 58A-5.023, F.A.C., must ensure that facility staff receive the following training: (a) Facility staff who have regular contact with or provide direct care to residents with Alzheimer’s disease and related disorders, shall obtain 4 hours of initial training within 3 months of employment. Completion of the core training program after April 20, 1998 shall satisfy this requirement. Facility staf who meet the requirements for Alzheimer’s training providers under paragraph (g) of this subsection will be considered as having met this requirement. “Staif who have regular contact” means staff who interact on a daily basis with residents but ee —-—dor niet provide direct care to residents: - ae 11 58A-5.024 Records. (2) STAFF RECORDS. (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition as applicable: 1. Documentation of compliance with all staff training required by Rule 58A-5.0191, F.A.C. 37. AHCA surveyors conducted a biennial survey of Respondent’s facility on October 17, 2002, and cited Respondent for a class III violation of the above-mentioned provisions based on the following: The facility has a secured unit that provides services to residents with Alzheimer’s related disease. Employee file review revealed 8 of 13 employees who have been working for over 3 months have not received the required training. 38. On October 17, 2002, AHCA also provided Respondent with a mandated correction date of November 13, 2002, within which to correct the above-described violation. 39, | AHCA surveyors conducted a follow-up survey of Respondent’s facility on December 12, 2002. An interview with the administrator revealed the following: The facility planned to implement a new orientation program to include the required Alzheimer’s training. The program still had not been implemented. 40. Respondent’s failure to ensure that employees receive Alzheimer’s training within 3 months of employment is a violation of Section 400.4178(2)(a), Florida Statutes. Respondent also failed to correct this deficient practice within the tims mandated by the Agency. 12 hd t it 41. Respondent’s failure (a) to ensure that employees receive Alzheimer’s training within 3 months of employment and (b) to correct such deficient practice within the time required by the Agency, is an uncorrected class III violation of Rules 58A- 5.0191(9)(a) and 58A-5.024(2)(a), Fla. Admin. Code. 42. Respondent’s aforesaid violation constitutes grounds for the imposition of an administrative fine in the amount of $500. A class ITI violation is defined as one that “the agency determines indirectly or potentially threatens the physical or emotional health, safety, or security of the facility residents, other than class I or class II violations.” WHEREFORE, the Agency respectfully requests the following relief: 1. Factual and legal findings in favor of the Agency on Counts I through V; 2. Imposition of administrative fines as follows: Count I, $500; Count II, $500; Count III, $500; Count IV, $500, Count V, for a total of $2,500; NOTICE Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to: Lealand McCharen, Agency Clerk, Agency for Health Care Administration, Building #3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE AGENCY MUST RECEIVE A REQUEST FOR HEARING WITHIN 21 DAYS OF RECEIPT OF 13 THIS COMPLAINT BY RESPONDENT. FAILURE TO COMPLY WILL CONSTITUTE AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND RESULT IN THE ENTRY OF A FINAL ORDER BY THE AGENCY. Y Dated this 2 day of July, 2003. Respectfully submitted, Noane Tom R. Moore, Esq. Senior Attorney Fla. Bar No. 097383 Counsel for Petitioner Agency for Health Care Administration Building #3, MSC #3 2727 Mahan Drive Tallahassee, FL 32308 (850) 921-5873 (office) (850) 413-9313 (fax) CERTIFICATE OF SERVICE AHCA, by and through its undersigned counsel, hereby certifies that a true and correct copy of the foregoing Administrative Complaint, with an Election of Rights for Administrative Hearing form and Explanation of Rights Under Section 120.569, F.S.A. form, have been forwarded by certified mail, return receipt requested, to: John E. Taylor, Jr., Administrator, Sunshine Gardens, 12080 SW Highway 484, Dunnellon, Florida, 34432, on this, the en of July, 2003. Quwi>. Wane Tom R. Moore, Esq. 14 i 2. article Number ‘ii, : ll TiO 4575 12% 2050 1432 3. Service Type CERTIFIED MAIL COMPLETE THIS SECTION ON DELIVERY B. Daye of Delivery W1¢ (03 a [7] agent VL LA (] Addressee D. Is Belivery address diffgfent from iter? 1) Yes ste It YES, enter delivery address below: [No 4, Restricted Delivery? (Extra Fae) CyYes 1. Article Addressed to: [ John E. Taylor, Administrator Sunshine Gardens 12080 SW Highway 484 Dunnellon, FL 34432 RE: 4 ro 2002H00 F21 SENDER: PS Form 3811, June 2000 ~»- Domestic Return Receipt ceoseeeenssenenssentonnsesn iqestsceesesteee - 7) 20 . om f ) = o m | 4 20Dc S$ om 6 yeas ~ #20 5 A ym ODSS = Se OP m Ps) OBE F § Roe % Geer Zz ° 5 Qo c Sop leeks 8 2Sou & i 8s aS siz a m EaB Fa : 28 2 (2 (5,18 Ma > 23 3 Pe, eos lelieizis| is — 5 3 1 3? O 8 j€j\9\8)8 PTOk ie ; #2 oO ® |e |S e yi se ry ‘ } =o = plein ode BS 2 ; #8 gle is 4 ae. : ° ~@2fe 8 3 NES aa i 3 S Or, F z S Y@ 38 rs 2 ys - 9 Wi : 2 : 3 6 3 g S) 3 i m 9 ‘ : SS

Docket for Case No: 03-002959