STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA NO: 2003003937 vs. CYPRESS MANOR HEALTH CARE ASSOCIATES, LLC, d/b/a CYPRESS COMMUNITY CARE 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 CYPRESS MANOR HEALTH CARE ASSOCIATES, LLC, d/b/a CYPRESS COMMUNITY CARE CENTER, (hereinafter “Respondent”) and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine in the amount of Sixty Thousand Dollars ($60,000) pursuant to Sections 400.102(1) (a) and (d), 400.121(1), and 400.23(8) (a), Florida Statutes. The amount of the fine constitutes a doubling of the fines for two (2) widespread Class I deficiencies pursuant to $ 400.23(8) (a) Fl. Stat. (2002). The facility was previously cited for Class I deZiciencies during the last annual survey 11/3-7/02 and the follow-up survey of 12/9-10/02. 2. The Respondent was cited for two (2) Class I deficiencies during the six-month survey on or about May 19-22, 2003. Jurisdiction 3. The Agency has jurisdiction over the Respondent pursuant to Chapter 400, Part II, Florida Statutes. 4. Venue lies in Lee County, Division of Administrative Hearings, pursuant to Section 120.57 Florida Statutes, anc Chapter 28- 106.207 F.A.C. Parties 5. AHCA, is the enforcing authority with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes and Rules 59A-4, Florida Administrative Code. 6. Respondent is a nursing home located at 7173 Cypress Drive S.W., Fort Myers, Florida. The facility is licensed under Chapter 400, Part II, Florida Statutes and Chapter 59A-4, Florida Administrative Code. COUNT I RESPONDENT FAILED TO ENSURE THAT EACH RESIDENT RECEIVES ADEQUATE SUPERVISION AND ASSISTANCE DEVICES TO PREVENT ACCIDENTS VIOLATING Fl. Admin Code R.59A-4.1288 INCORPORATING BY REFERENCE 42 CFR 483.25 (h) (2) CLASS I DEFICIENCY 7. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 8. Based on observation, interview and record review, the facility failed to provide adequate supervision and assistive devices for 5 (#21, #22, #24, #26, and # 28) of 9 residents identified as lacking safety awareness with smoking. The facility failed to remove smoking materials and secure them as outlined in their facility Safe Smoking Screen for 4 (#21, #26, #27 and #28) of 8 reviewed and 2 (#40 and #41) random residents with a history of smoking in their rooms and/or poor safety awareness. This created a potential fire hazard for all residents. This failure of facility practice placed all the residents in the facility in danger of serious injury or death. 9. The findings of the surveyors include the following: a. On 5/21/03 at approximately 3:30 PM Resident # 21 was observed in the center courtyard to self propel the wheelchair to a table in the covered area of the courtyard (gazebo). The wheelchair was positioned at the table facing the east side of the building. One column from the gazebo obstructed the view from the covered patio attached to the activity room. The resident was not visible from this dark screened enclosed patio adjacent to the courtyard. The surveyor observed a staff person in the far vight corner of the screen-enclosed patio approximately 100 feet from the resident. b. The resident was observed to remove a cigarette and a red lighter from a "fanny pack" attached to her waist. The resident attempted to light a cigarette while holding the lighter approximately 2 inches from the end of the cigarette. This attempt was unsuccessful. The resident was observed to try four more times to light the cigarette in the same manner. The resident asked the surveyor for assistance. Interview with the resident revealed the resident has difficulty lighting cigarettes. Observation during the interview revealed the resident had two small dark areas on her left middle finger and one on the fingernail. The resident was observed to hold the cigarette between the left index finger and middle finger. When questioned about the dark areas on her finger, the resident stated, "they came from cigarette burns." Further observation revealed the left pant leg from the thigh to the knee had numerous scorch marks. c. Record review revealed the facility Safety Smoking Screen dated 3/10/03 indicated the resident needed assistance to light her cigarette, did not demonstrate safe use of a lighter due to slight right hemi paresis, must be reminded to use the ashtray, has difficulty finding ashtray due to impaired vision, cigarettes to be kept at desk with lighter and the resident requires a smoking apron to be worn. d. Review of the MDS (Minimum Data Set) completed on 4/7/03 revealed the resident has moderately impaired cognitive skills for daily decision-making and arm, hand, leg and foot as partial loss limited to one side. e. The Care Plan dated 10/15/02 revealed the resident has a self care deficit, requires extensive assist with most activities of daily living tasks due to CVA (Cerebral Vascular Accident) with right sided weakness and right sided visual loss. Further review of the Care Plan revealed a potential for injury related to smoker- related to limited motor skills with potential for burns to self and clothing. f£. Observation of the resident room on 5/21/03 at approximately 4 PM revealed the resident had a blue lighter in the right corner of top drawer of the bedside table. g. Interview with the Unit Manager of West Wing on 5/21/03 at approximately 4:10 PM revealed the resident always carried her cigarettes and lighter on her person in the "fanny pack". Further interview revealed the Unit Manager was unaware of the approaches that were indicated on the Smoking Safety Screen and in the Care Plan. The Unit Manager identified 5 residents whose cigarettes were kept. at the Nurses Station in an unlocked drawer. h. Further interview revealed the facility had a staff assigned to the enclosed patio to assist residents with lighting cigarettes. She further stated that staff throughout the building were assigned to do this in 20-minute intervals on the 7-3 and 3- 11 shift. A copy of the schedule was provided to the surveyors for the 3-11 shift on 5/21/03. i. At approximately 4:21 PM on 5/21/03, the surveyors observed no staff present in the dark screened enclosed patio or in the open courtyard. 6 residents were observed in the smoking area. Resident #27 was noted to be smoking in the enclosed area. Resident #24 was observed to have a burn hole on the left pant leg. The surveyors left the area at 4:33 PM. There was no staff observed to be present in the smoking area from 4:21 PM to 4:33 PM. A staff member was observed coming out of the building to the outer courtyard and spoke to 2 residents and returned to the building. 3. On 5/21/03 at approximately 4:45 PM the facility Staff Development Nurse furnished the surveyors in-services given to staff, on the facility smoking policies conducted on 5/16, 5/17, 5/18 and 5/19. Attached to the in-services were a group of safety smoking screens for residents in the facility who were known to smoke. k. The surveyors reviewed the facility in-service given to staff on the above dates, the contents include; Fire safety/procedures, Smoking in-service. The topics covered in the smoking in-service were: 1. All resident have been assessed for smoking safety. 2. The assessment drives the safety precautions we must take for each resident. l. 3. There is a smoking assignment at each nurses station, this assignment is where you will find the time that you should report to the patio to assist the smokers. 4. There is a list of the safety precautions that need to be taken for each resident, located in the blue and white box on the patio on the lid --- THIS LIST MUST BE KEPT CONFIDENTIAL! ! 5. Please follow the safety precautions as listed. 6. If the precautions are not being followed, for any reason, please contact the Risk Manager. Interview with the Risk Manager on 5/21/03 at approximately 5:10 PM revealed a brief overview of the facility policy regarding smoking. She stated, "there is a smokers box in the patio area which contains smoking aprons and a list of smokers". She further stated that the facility, using a smoking assessment tool, identifies residents who need to have smoking materials kept by the nurses. Those materials are lccked in the med room and only available to the nurses. She stated, "the facility has a schedule for staff to be available to residents in the courtyard. The staff rotates every 20 minutes from 7 AM to 11 PM." She also stated that she thought there was list of those residents who smoke kept at the Nurses Station. She was not aware there was a problem with the safety of the smokers. m. Because of the concerns for the safety of residents at 5:30 PM the surveyors asked administrative staff to provide them with an action plan for safety while smoking. n. At approximately 5:50 PM surveyors went to the east and west wing to determine which residents required assistance while they smoked. Interview with the Unit Managers on East and West Wing revealed there was no list of smoking residents at the Nurses Station. °. At approximately 6 PM the surveyors observed 11 residents in the center courtyard and the enclosed patio area. There was no staff observed to be present. No residents were observed to have smoking aprons on. Four aprons were observed to be in the smoking area. Resident #29, #28, #27, #26 and #25 were observed to be smoking in the enclosed patio area. The surveyors went into the building to elicit the help of the Activities person to identify the residents. p. At approximately 6:10 PM Resident #22 was observed seated in her wheelchair facing a set of double doors approximately 7 feet from the building. The resident had a cotton-quilted lap robe on. A heavy layer of ashes was noted to be covering the resident from just below the neckline of her dress, on the cotton quilted lap robe and extending to her knees. The resident had a purse wedged between her body and the left gide of the wheelchair. Ashes were observed on the top portion of her purse. The resident had her eyes closed and appeared to be sleeping. A staff member came from the building to the courtyard, roused the resident and asked if she could clean the ashes from her person. q. Record review of the Facility Smoking Screens for residents who were further observed revealed the following: Yr. Resident #22 had a Smoking Safety Screen performed on 3/10/03 indicating the resident is not safe to independently smoke, is not safe to use a lighter, does not use ashtrays appropriately, is unable to keep ashes from dropping on self, is unable to extinguish a cigarette by self, requires a smoking apron and a cigarette holder. The resident was observed on 5/20/03 at approximately 11 AM to be smoking unattended with no smoking apron and no cigarette holder. Review of the MDS indicated the resident is moderately impaired for cognitive skills for daily decision-making, has partial loss of motion to hand, leg, and foot which is limited to one side. A Care Plan dated 3/10/03 for potential injury with smoking related to impaired cognition indicated the resident requires a smoking apron, cigarette holder and smoking materials to be kept at the nurses station. s. Resident #24 had a Smoking Safety Screen completed on 3/10/03 indicating the resident is unable to smoke independently, does not demonstrate safe use of lighter, does not demonstrate appropriate use of ashtray, is unable to keep ashes from dropping on self, is unable to extinguish a cigarette, requires a smoking apron and smoking materials to be kept at nurses station. An MDS dated 3/17/03 indicated the resident is moderately impaired in cognitive skills for daily decision-making and partial loss of motion to arm and leg, limited to one side. A Care Pan dated 3/17/03 for potential for injury with smoking related to impaired cognition indicated the resident requires a smoking apron and smoking materials to be kept at the nurses station. t. Resident #25 had a Smoking Safety Screen completed on 3/10/03 which indicated the resident had episodes of smoking in room, can physically use lighter and had episodes of ignition in room, smoking materials may be kept on person and may smoke independently after cigarette is lit by staff. An MDS dated 3/6/03 indicated the resident has modified independence in cognitive skills for daily decision-making. A Care Plan dated 3/12/03 for potential for injury when smoking related to poor coordination indicated the resident requires assistance with lighter. u. Resident #26 had a Smoking Safety Screen completed on 3/10/03 indicating the resident is now compliant with the Smoking Policy, however had episodes of smoking in room and requires smoking materials kept at nurses station. An MDS dated 4/30/03 indicated the resident is independent in cognitive skills for daily decision-making and, partial loss of motion to leg, limited to one gide. A Care Plan dated 4/30/03 for resident at risk for 10 smoking failed to include that smoking materials should be stored at the nurses station. v. At approximately 6:10 PM Resident #26 was observed to be seated in a wheelchair which was positioned with the back of the wheelchair toward the enclosed patio. There was a package of cigarettes and a lighter ina tissue box which the resident had on her lap. The resident had just lit a cigarette. w. Resident #27 had a Smoking Safety Screen completed on 4/16/03 which indicated the resident is instructed to keep cigarettes at the nurses station and is able to smoke with minimal supervision. An MDS dated 4/30/03 indicated the resident is moderately impaired in cognitive skills for daily decision- making. A Care Plan dated 4/30/03 indicated non-compliance in all aspects of facility life except for taking medications and showers. A Care Plan dated 5/5/03 indicated the resident is a smoker and needs supervision for smoking safety. x. During observation of resident #27 on 5/20/03 at approximately 11 AM the resident was observed seated at a table in the screened enclosed area with a pack of cigarettes in her hand. y. Resident #28 had a Smoking Safety Screen completed on 5/1/03 indicating the resident requires assistance with lighter, smoking materials to be kept at nurses station, is able to smoke with minimal supervision related to Parkinson's symptoms. An MDS dated 5/15/03 indicated the resident is moderately impaired in 11 cognitive skills for daily decision making, mental function varies over course of day and partial loss of movement to foot, limited to one side. A Care Plan dated 5/14/03 indicated resident has changes in cognition from day to evening time similar to Sundowners Syndrome. A Care Plan dated 5/19/03 indicated resident is a smoker, requires assistance with lighter and supervision. Z. Resident #29 had a Smoking Screen completed on 3/10/03 indicating the resident has memory loss, is forgetful, cigarettes to be kept at nurses station, given 2 at a time, resident falls asleep, is non compliant with use of ashtray and requires a smoking apron. An MDS dated 3/17/03 indicated the resident is moderately impaired in cognitive skills for daily decision making, mental function varies across the course of the day, partial loss of movement of leg and foot and limited to one side. A Care Plan dated 3/10/03 for potential for injury when smoking related to poor safety awareness, falls asleep and non compliant with use of ashtray. Observation in the closed patio area at approximately 6:15 PM revealed resident #29 was seated in a wheelchair and staff assisted the resident with lighting a cigarette. The staff member did not offer the resicent a smoking apron. aa. At approximately 8:00 PM on 5/21/03 the facility Administrative staff presented surveyors with a list of residents they identified as needing supervision with smoking. The facility also submitted an Immediate Jeopardy Remedy for Smoking. The plan was as follows: I. A full time monitor will be provided for residents while in the designated smoking area. II. A designated smoking area will be provided on the screened lanai for the smokers who need supervision. III. Supervised residents have been identitied, interviewed and smoking materials obtained and stored in a smoking box, kept in the medication room when not in use. Iv. Education will be provided to these residents regarding safe smoking guidelines. Vv. Residents who have been identified at risk for smoking in the building will have at least every 15 minutes and continued re-enforcement to use the designated smoking areas. Staff will assure these checks by initialing the monitoring sheets. vI. Aprons will be provided for supervised smoking residents to prevent burn holes to their clothing and decrease risks associated with smoking. VII. All staff will be educated on the revised policies regarding the designated smoking area, identified supervised smoker, new smoking box, smoking log and use of aprons for those supervised smokers. 13 VIII. Staff will document the time that all smokers are in bed, on the log and return to their regular assignment, assuring they make checks on smoking areas during their shift every half hour. bb. The facility Administration on 5/21/03 at approximately 8:10 PM stated staff conducted a sweep of the rooms of residents whose Smoking Safety Screen indicated that their smoking materials should be stored at the nurses station. This was done to ensure no smoking materials were in those resident rooms. cc. At approximately 8:20 PM the surveyors left the facility with the assurance that the facility would follow their plan. dd. On 5/22/03, at approximately 8:15 AM the surveyors entered the facility and conducted an observation of the designated smoking areas. A staff member was observed to be in the area. A log containing staff initials, including times, was reviewed, to ascertain the ability of the facility to implement their plan from 5/21/03. ee. On 5/22/03 at approximately 8:30 AM the Administrator came to the surveyors and stated "he had monitored staff in the facility for compliance with the facility's new Smoking Plan from 3:00 AM until 5:30 AM". He further stated, "the Regional Nurse Consultant and facility Staff Developer were also ir the facility from 6:30 AM to present." 14 = f£. On 5/22/03 at approximately 9:00 AM the surveyors reviewed resident Smoking Safety Screens to determine those residents identified by the facility who should have smoking materials stored at the nurses station. gg. On 5/22/03 at approximately 9:45 AM an observation of the designated smoking area revealed a nurse assisting Resident #22 with lighting her cigarette. The resident was seated ina wheelchair in a slumped position. The cigarette was noted to be in a holder in the resident's mouth. Without adequate concern for safety, the tip of the cigarette was approximately one inch from the resident's clothing when it was lit. The nurse turned away from the resident to yeach a smoking apron and then placed the apron on the resident. hh. At approximately 10:00 AM (with resident permission) the surveyors requested staff to accompany them on a tour of rooms of residents identified as having all smoking materials stored at the nursing station. During the tour the surveyors observed as the facility staff discovered the following: ii. Room 111 - Resident #28 had an unopened pack of cigarettes in a bag located in her closet. The resident stated "her family member had brought the bag in when the resident was admitted" (5/1/03). The Nursing Assistant removed the cigarettes and brought them to the East Wing nurses station to have a nurse 15 secure the cigarettes. The facility Staff Development Nurse told the nursing assistant "all smoking materials were to be kept at the West Wing nurses station". jj. Interview with the nursing assistant while walking to the west wing revealed the nursing assistant thought the smoking materials were to be kept on the unit the resident resided on. Further interview revealed she had not attended the smoking in- services done on the weekend as she was off. kk. Room 226 - Resident #21 was observed to have a functioning dark blue lighter in the right corner of the top drawer in her bedside table. The nurse doing the tour removed the lighter and brought it to the nursing station. 11. Room 210 - Resident #40 had a functional Seripto long neck lighter (type used to start outdoor grills or fireplaces) in the 2nd drawer of his bedside table. mm. Room 218 - Resident #41 had a container of Ronunol lighter fluid, 12 oz. size approximately half full in ----- , a Zippo lighter, and loose tobacco in a Wal-Mart bag. Review of this resident's Safety Smoking Screen indicated the resident was independent to smoke, however materials were to be kept at the nurses station. nn. At approximately 10:50 AM a surveyor interviewed the facility laundry staff. The staff confirmed residents, #21, #22 and #24 had their laundry done by the facility so any "holes" 16 observed in resident's clothing who smoke, most likely occurred while the resident was living in the facility. co. On 5/22/03 at approximately 11:15 PM an interview was conducted with the facility Staff Development nurse regarding in- service about the new Smoking Policy. She stated, "it had been completed during the evening of 5/21." She further stated "I don't understand all the rooms were searched last night and staff reported no smoking material were at the bedside. I don't know where all this material came from." pp. The facility failed to demonstrate compliance with their new Smoking Policy and adherence to their submitted Immediate Jeopardy Plan. The facility failed to demonstrate adequate supervision and assistance with smoking for residents at risk with smoking and thereby, endangered the health and safety of all residents in the facility. 10. The above action or inactions are violations of 42 CFR 483.25 (h) (2), which requires each resident receive adequate supervision and assistive devices to prevent accidents. 11. The above referenced violation constitutes the grounds for the imposed Class I deficiency and for which a fine of Thirty Thousand Dollars ($30,000) is authorized under Sections 400.022(3), 400.102(1) (a,d), 400.121(1), and 400.23(8) (a), Florida Statutes. COUNT II RESPONDENT FAILED TO MONITOR AND ENSURE IMPLEMENTATION OF THE SMOKING POLICIES IN USE AT THE FACILITY VIOLATING Fl. Admin Code R.59A-4.1288 INCORPORATING BY REFERENCE 42 CFR 483.75 CLASS I DEFICIENCY 12. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 13. Based on observations, record review, staff and resident interviews, the Administration failed to monitor and ensure implementation of the smoking policies in use at the facility on 5/21/03. Also, the facility administration failed to monitor the implementation of the revised smoking policies put in place after 8:00 PM on 5/21/03 and was intended to prevent potential harm for those residents identified at risk for smoking issues, (Residents #21, #22, #24, #26, #27, #28, #29, #40, #41) as well as the entire resident population of the facility. The failure of the administration placed all residents in jeopardy to their health and safety. 14. The findings of the surveyors include the following: a. Observations were made of smoking residents from 5/20- 22/03. Residents identified by the facility as being at risk were observed lighting their cigarettes without supervision, no smoking apron on the residents, burn holes in the resident garments, cigarette ashes covering resident and smoking supplies not located at the proper nursing station areas. See F-324 for complete details. b. On 5/21/03 at approximately 4:45 PM the facility Staff Development Nurse furnished the surveyors in-services given to staff on the facility smoking policies conducted on 5/16, 5/17, 5/18 and 5/19. Attached to the in-services were a group of safely smoking screens for residents in the facility who were known to smoke. c. The surveyors reviewed the facility in-service given to staff on the above dates, the contents include; Fire safety/procedures, Smoking in-service. The topics covered in the smoking in-service were: 1. All resident have been assessed for smoking safety. 2. The assessment drives the safety precautions we must take for each resident. 3. There is a smoking assignment at each nurses station, this assignment is where you will find the time that you should report to the patio to assist the smokers. 4. There is a list of the safety precautions that need to be taken for each resident, located in the blue and white box on the patio on the lid --- THIS LIST MUST BE KEPT CONFIDENTIAL! ! 5. Please follow the safety precautions as listed. 6. If the precautions are not being followed, for any reason, please contact the Risk Manager. d. Interview with the Risk Manager on 5/21/03 at approximately 5:10 PM revealed a brief overview of the facility policy regarding smoking. She stated, "there is a smokers box in the patio area which contains smoking aprons and a l:st of smokers." She further stated, "the facility identifies smokers using a smoking safety screen, identifies residents who need to have smoking materials kept by the nurses and those materials are locked in the med room and only available to the nurses." She stated, "the facility has a schedule for staff to be available to residents in the courtyard. The staff rotate every 290 minutes from 7 AM to 11 PM and thought there was list of those residents who smoke kept at the Nurses Station." She was not aware there was a problem with the safety of the smokers. e. At approximately 8:00 PM on 5/21/03 the facility Administrative staff presented surveyors with a list of residents they identified as needing supervision with smoking. The facility also submitted a Immediate Jeopardy Remedy for Smoking. The pian was as follows: I. A full time monitor will be provided for residents while in the designated smoking area. II. A designated smoking area will be providec. on the screened lanai for the smokers who need supervision. III. Supervised residents have been identified, interviewed and smoking materials obtained and stored in a smoking box, kept in the medication room when not in use. 20 Iv. Education will be provided to these residents regarding safe smoking guidelines. Vv. Residents who have been identified at risk for smoking in the building will have at least every 15 minutes and continued re-enforcement to use the designated smoking areas. Staff will assure these checks by initialing the monitoring sheets. VI. Aprons will be provided for supervised smoking residents to prevent burn holes to their clothing and decrease risks ass located with smoking. VII. All staff will be educated on the revised oolicies regarding the designated smoking area, identified supervised smoker, new smoking box, smoking log and use of aprons for those supervised smokers. VIII. Staff will document the time that all smokers are in bed, on the log and return to their regular assignment, assuring they make checks on smoking areas during their shift every half hour. f. The facility Administration on 5/21/03 at approximately 8:10 PM stated staff conducted a sweep of resident rooms whose Smoking Safety Screen indicated that their smoking materials should be stored at the nurses station to ensure thet all materials were not in those resident rooms. 21 g. At approximately 8:20 PM the surveyors left the facility with the assurance that the facility would follow their plan. h. On 5/22/03 at approximately 8:30 AM the Administrator came to the surveyors and stated "he had monitored staff in the facility for compliance with the facility's new Smoking Plan from 3:00 AM until 5:30 AM." He further stated "the Regional Nurse Consultant and facility Staff Developer were also in the facility from 6:30 AM to present." i. At approximately 10:00 AM the surveyors requested staff to accompany them on a tour of resident rooms, who had been identified as having all smoking materials stored at the nursing station. During the tour the surveyors observed the facility staff discover the following: j- Room 111 - Resident #28 had an unopened pack of cigarettes in a bag located in her closet. The resident stated "her family member had brought the bag in when the resident was admitted" (5/1/03). The Nursing Assistant removed the cigarettes and brought them to the East Wing nurses station to have a nurse secure the cigarettes. The facility Staff Development Nurse told the nursing assistant "all smoking materials were to be kept at the West Wing nurses station". k. Interview with the nursing assistant while walking to the west wing revealed the nursing assistant thought the smoking materials were to be kept on the unit the resident resided on. 22 Further interview revealed she had not attended the smoking in- services done on the weekend as she was off. 1. Room 226 - Resident #21 was observed to have a functioning dark blue lighter in the right corner of the top drawer in her bedside table. The nurse doing the tour removed the lighter and brought it to the nursing station. m. Room 210 - Resident #40 had a functional Scripto long neck lighter (type used to start outdoor grills or fireplaces) in the 2nd drawer of his bedside table. n. Room 218 - Resident #41 had a container of Ronunol lighter fluid, 12 oz. size approximately half full in ----- , a Zippo lighter, and loose tobacco in a Wal-Mart bag. Review of this residents Safety Smoking Screen indicated the resident was independent to smoke, however materials were to be kept at the nurses station. oO. On 5/22/03 at approximately 11:05 A.M., during a conversation with one surveyor, the regional nursing consultant said, "I don't know why they are doing this search. We went through all the rooms last night." p. On 5/22/03 at approximately 11:15 PM an interview was conducted with the facility Staff Development nurse regarding in- service about the new Smoking Policy. She stated, "It had been completed during the evening of 5/21." She further stated, "I don't understand, all the rooms were searched last night and 23 staff reported no smoking materials were at the bedside. I don't know where all this material came from." q. The facility failed to demonstrate compliance with their new Smoking Policy. The facility failed to demonstrate adequate supervision and assistance with smoking for residents at risk with smoking and thereby, endangered the health and safety of all residents in the facility. 15. The above action or inactions are violations of 42 CFR 483.75 which requires that a facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. 16. The above referenced violation constitutes the grounds for the imposed Class I deficiency and for which a fine of Thirty Thousand Dollars ($30,000) is authorized under Sections 400.022(3), 400.102(1) (a,d), 400.121(1), and 400.23(8) (a), Florida Statutes. CLAIM FOR RELIEF WHEREFORE, AHCA requests th is Court to order the following relief: A. Make factual and legal findings in favor of the Agency on Counts I and II; B. Impose a doubled fine of Thirty Thousand Dollars ($30,000) for the violation cited in Count I, against 24 the respondent under Sections 400.102(1) (a) and (d), 400.121(1), and 400.23(8) (a), Florida Statutes; Impose a doubled fine of Thirty Thousand Dollars ($30,000) for the violation cited in Count II, against the respondent under Sections 400.102(1) (a) and (d), 400.121(1), and 400.23(8) (a), Florida Statutes; Assess costs of the investigation and prosecution of this case pursuant to § 400.121 (10) Fl. Stat. (2002) All other general and equitable relief allowed by law. 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: Lealand McCharen, Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 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. 25 : ly submitted, J / f At “ tL CLA ra Garcia, Esquire ior Attorney or Lake Drive North, 330D St. Petersburg, Florida 33701 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished to C T Corporation System, 1200 South Pine Island Road, Plantaticn, FL 33324 Return Receipt No. 7002 2030 0007 8499 7246 U.S. Certified Mail and to Administrator, Cypress Community Care Center, 7173 Cypress Drive S.W., + Fort Myers, FL 33907, by Mail, on august 4 LA Copies furnished to: Registered Agent for Cypress Community Care Center 1200 South Pine Island Road Plantation, FL 33324 (U.S. Certified Mail) Administrator Cypress Community Care Center 7173 Cypress Drive S.W. Fort Myers, FL 33907-2994 (U.S. Mail) Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 310L St. Petersburg, Florida 33701 26

Docket for Case No: 03-003325