STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA NO: 2003007402 VENICE REHAB AND HEALTH CENTER, Respondent. a ADMINISTRATIVE COMPLAINT AUN eee The AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA’), through undersigned counsel, files this Administrative Complaint against VENICE REHAB AND HEALTH CENTER [hereinafter “VENICE REHAB"), reflecting the respective status of AHCA and VENICE REHAB as Petitioner and Respondent, respectively. Pursuant to Sections 120.569, and 120.57, Florida Statutes (2002), and alleges: NATURE OF THE ACTION ee 1. This is an action whereby AHCA seeks, in Count | of the instant Complaint, to impose certain administrative fines for the alleged violation of Florida's “excessively hot tap water” regulatory rule [a $25,000 fine for a patterned deficiency - the fine amount representing a doubling of the $12,500 fine due to the citing of Class | tags on the survey conducted on February 9-14, 2003] and for the mandated 6-month survey cycle in the additional amount of $6,000. The case pertains to the alleged existence of a dangerous hot tap water situation at VENICE REHAB’s skilled nursing facility on or about September 8-12, 2003 identified by AHCA surveyors as a patterned deficiency and to the failure of the administration of the facility to develop and implement policies and procedures for the monitoring and maintenance of the hot water system that supplies hot water to residents in the 100 Unit [Alzheimer's unit] of the facility, the failure of the administration of the facility to monitor the water system that supplies hot water to the 100 Unit of the facility, the failure of the facility to monitor or to have in place a system to monitor the temperature of hot water supplied throughout the facility in room sinks, bathroom sinks and showers and the failure of the facility to ensure that the resident environment remained as free of accident hazards as possible, resulting in excessively hot tap water. AHCA alleges that the excessively hot tap water resulted in a situation likely to cause serious injury or harm to residents. Additionally, the facility was cited for its failure to assure that the residents’ environment is safe from accident hazards due to entrapment by its failure to inspect mattresses and side rails for appropriate fit to the bed, resulting in a situation that AHCA alleges was likely to cause serious injury or harm to residents. Additionally, AHCA alleges that the facility failed to supervise Resident #2 [1 of 21 active sampled residents] for safety from harm as a result of falls, creating a situation that was likely to cause serious injury or harm to this resident who was known to be at risk for falls. The fact that VENICE REHAB was cited during a previous survey conducted on February 9-14, 2003 for Class | deficiencies mandates the doubling of the $12,500 fine amount, resulting in the imposition of a fine in the amount of $25,000. Two administrative complaints were filed against Venice Rehab as a result of the survey conducted on February 9-14, 2003 where the facility was cited for three (3) Class | deficiencies. One of the administrative complaints, AHCA NO: 2003001394, relating to that survey sought the imposition of a conditional licensure status. [The referenced Administrative Complaint is marked for identification as Petitioner's Exhibit “A” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint]. The second administrative complaint relating to that survey, AHCA NO: 2003001393, citing VENICE REHAB with three (3) Class | deficiencies, sought the imposition of administrative fines against the facility. [The referenced Administrative Complaint is marked for identification as Petitioner's Exhibit “B” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint). Additionally, an Order of immediate Moratorium [AHCA No. 2003003532] was imposed upon VENICE REHAB on October 10, 2003, based on the identification of an immediate jeopardy situation on October 8-9, 2003, where the facility failed to adequately supervise/monitor a resident known to be an elopement risk. The resident was unattended on the patio area of the facility, climbed a ladder that had been left in the patio area by the maintenance staff and fell to his death. The Order of Immediate Moratorium [AHCA No. 2003003532] is marked for identification as Petitioner's Exhibit °C” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. As a result of a focused appraisal visit conducted at VENICE REHAB on October 9, 2003 the facility was cited with two (2) Class | deficiencies and two Administrative Complaints were filed against the facility. One of the two Administrative Complaints [AHCA No. 2003007802] consisted of an action to impose administrative fines against the facility. A copy of the Administrative Complaint bearing AHCA No. 2003007802 is marked for identification as Petitioner's Exhibit “D” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. The second of the Administrative Complaints filed against the facility emanating from the focused appraisal visit conducted on September 9, 2003 [AHCA No. 2003007803] consists of an action to impose a conditional license status on the facility. A copy of the Administrative Complaint bearing AHCA No. 2003007803 is marked for identification as Petitioner's Exhibit “E” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. 2. Additionally, in Count il of the instant Complaint AHCA seeks to revoke the facility’s license pursuant to the provisions of 400.121(3)(d) on the basis that the facility has been cited for six (6) class | deficiencies arising from separate surveys or investigations within a 30 month period. Venice Rehab was cited for three (3) Class | deficiencies in the survey conducted on February 9-14, 2003. Additionally, Venice Rehab was cited for one (1) Class | deficiency in the survey conducted on September 8-12, 2003. On October 8-9, 2003, AHCA imposed an Order of Immediate Moratorium against VENICE REHAB and found immediate jeopardy that resulted in the death of one of the residents of the facility and that moreover resulted in the citation on October 9, 2003 two (2) additional Class | deficiencies against the es) facility. Under these facts, the provisions of Section 400.121(3)(d), Florida Statutes mandate that AHCA seek revocation of the facility's license. EVIDENTIARY BURDENS 3. AHCA submits to DOAH and to the ALJ that the Agency has determined as a matter of law, the evidentiary burden applicable to the Agency's fine cases. Here, the evidentiary matter over which disagreement may exists, concerns the standard of proof applicable in this fine case to prove the proper and lawful classification of the seriousness of the alleged violation, upon the violation being proven to exist in the fine case by the strict “clear and convincing” evidence standard. 3.1. In the fine case, AHCA must first prove the existence of the underlying alleged violation [as to Count |, the existence of excessively hot tap water temperatures]; and then, second, if the violations are proven to exist, must prove the separate but related issue concerning the correctness of the “classification” of the seriousness of those proven violations, pursuant to Section 400.23(8), Florida Statutes (2002). If no violation exists, then any question of the seriousness of the alleged violation is moot. 3.2. In AHCA’S fine case, the standard of proof is “clear and convincing” evidence as to proof of the violation [here, the existence of excessively hot tap water], but AHCA has determined as a matter of law that in the fine case, as to proof of the classification of the seriousness of the proven violation, the burden of proof remains the less strict “preponderance of the evidence”. The Agency has determined, as a matter of law, that there has been no extension of the clear and convincing evidence standard to the proof by the Agency of the correctness of the classification of the seriousness of a proven violation in a fine case. JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2002) and the Agency’s submission of these two cases to DOAH for formal hearing. 5. AHCA has jurisdiction pursuant to Chapter 400, Part ll, Florida Statutes (2002) and can confer upon DOAH only such jurisdiction as the Agency possesses and as authorized by law. Here, the Agency expressly reserves unto itself whatever jurisdiction the Agency possesses to determine, as a matter of law, the standard of proof applicable in its fine cases to proof of the correctness of the classification of the seriousness of a proven violation. 6. Venue is determined pursuant to Rule 28-106.207, Florida Administrative Code (2002). PARTIES 7. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing skilled nursing facilities pursuant to Chapter 400, Part Hl, Florida Statutes (2002) and Chapter 59A-4, Florida Administrative Code. 8. VENICE REHAB AND HEALTH CENTER is a Florida corporation with a principal address of 437 South Nokomis Avenue, Venice, Florida 34285. 9. VENICE REHAB operates a 178-bed skilled nursing facility located at 437 South Nokomis Avenue, Venice, Florida 34285. VENICE REHAB is licensed by AHCA as a skilled nursing facility having been issued license number SNF1570096, certificate number 9814, with an effective date of June 28, 2003 and an expiration date of June 27, 2004. 10. VENICE REHAB is and was at all times material hereto a licensed skilled nursing facility required to comply with all applicable laws and rules. THE ALLEGED VIOLATIONS 11. The regulatory rule pertinent to the alleged violations in Count | of this case is Rule 59A-4.133(16)(d), Florida Administrative Code, regarding minimum standards for nursing homes. The Rule states: (16) All facilities shall comply with the following standards: * * * (d) The temperature of hot water supplied to resident use lavatories, showers and baths shall be between 105 degrees Fahrenheit and 115 degrees Fahrenheit. 12. 42 C.F.R. 483.25 provides: Quality of care Each resident must receive and the facility must 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 pian of care. (h) Accidents. The facility must ensure that (1)The resident environment remains as free of accident hazards as is possible; 13. 42 C.F.R. 483.75 provides: Administration 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, psychosocial well being of each resident. (b) Compliance with Federal, State and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such facility. (d) Governing body. The facility must have a governing body that is legally responsible for establishing and implementing policies regarding the management and operation of the facility, 14. The statutory provision mandating the assessment of the 6 month survey fee sought in Count | is contained in Section 400.419, Florida Statutes, which provides in pertinent part: (3) The agency shall every 15 months conduct at least one unannounced inspection to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construction, quality and adequacy of care, and rights of residents. The survey shall be conducted every 6 months for the next 2-year period if the facility has been cited for a class | deficiency, has been cited for two or more class II deficiencies arising from separate surveys or investigations within a 60-day period, or has had three or more substantiated complaints within a 6-month period, each resulting in at least one class | or class II deficiency. in addition to any other fees or fines in this part, the agency shall assess a fine for each facility that is subject to the 6-month survey cycle. The fine for the 2-year period shall be $6,000, one-half to be paid at the completion of each survey... 15. The statutory provision mandating the revocation sought in Count I! of this case is contained in Section 400.121(3)(d), Florida Statutes, which provides: 400.121 Denial, suspension, revocation of license... (3) The agency shail revoke or deny a nursing home license if the licensee or controlling interest operates a facility in this state that: (d) Is cited for two Class | deficiencies arising from separate surveys or investigations within a 30-month period. 16. On or about September 9-14, 2003, AHCA performed an annual survey at VENICE REHAB’s subject facility. AHCA cited VENICE REHAB for a deficiency [an alleged violation of the regulatory rule enunciated in paragraph number 11). 17. On or about September 9, 2003, Agency surveyors, using calibrated thermometers, observed and documented hot tap water temperatures as follows: a. On 9/8/03 at 10:20 am, a survey team member recorded a hot water temperature of 120 degrees Fahrenheit in the resident’s sink in room #129.. b. On 9/8/03 at 10:24 am, a survey team member recorded a hot water temperature of 121 degrees Fahrenheit in Resident #4’s sink in the resident’s room. c. On 9/8/03 at 10:26 am, a survey team member recorded a hot water temperature of 134 degrees Fahrenheit in the resident’s sink in room #113. d. On 9/8/03 at approximately 11:36 am, a survey team member recorded a hot water temperature of 140 degrees Fahrenheit in the resident’s room sink in room #111; 138 degrees Fahrenheit in the resident's bathroom sink in room #111 and 136 degrees Fahrenheit in the resident’s shower in room #111, Room 113 shares the shower with Room 111. e. On 9/8/03 at approximately 11:36 am, a survey team member recorded a hot water temperature of 130 degrees Fahrenheit in the resident’s room sink in room #113. f. On 9/8/03 at approximately 11:36 am, a survey team member recorded a hot water temperature of 132 degrees Fahrenheit in the room sink in room #115 and 132 degrees Fahrenheit in the shower in room #115. Room #115 was not occupied by any residents on the dates that the survey was conducted. g. On 9/8/03 at approximately 11:36 am, a survey team member recorded a hot water temperature of 137 degrees Fahrenheit in the resident’s bathroom sink and 136 degrees Fahrenheit in the resident’s shower in the room occupied by random sampied Resident #26. h. On 9/8/03 at approximately 11:50 am the Maintenance Director at VENICE REHAB reduced the temperature of the supply water entering the 100 Unit from 150 degrees Fahrenheit to 114 degrees Fahrenheit. j. On 9/8/03 at approximately 12:12 pm, a survey team member recorded a hot water temperature of 123 degrees Fahrenheit in the resident’s room sink in room #106. 18. The findings of the AHCA survey team include: 18.1. During the survey team’s tour of the 100 Unit [Alzheimer’s Unit] at approximately 10:20 am on 9/8/03, a surveyor recorded a hot water temperature of 120 degrees Fahrenheit in the resident's sink in room #129. 18.2. A second hot water temperature recording of 121 degrees Fahrenheit was taken by the same surveyor at approximately 10:24 am on 9/8/03 in Resident #4’s room sink. 18.3. A second surveyor on the Unit was alerted to the first surveyor's findings at approximately 10:26 am on 9/8/03. The second surveyor recorded a hot water temperature of 134 degrees Fahrenheit in the resident's sink in room #113. 18.4. During a team meeting on 9/8/03 at approximately 10:50 am, the survey team discussed the hot water temperatures in the 100 Unit. 18.5. At approximately 11:03 am, the survey team stopped the standard survey process to begin an investigation into the possibility of the existence of immediate Jeopardy due to the potential serious harm which may result from a resident being exposed to hot water. 18.6. A review of surveyor guidance for identified hot tap water temperatures that may cause scald burns in health care facilities revealed that exposure to a hot water temperature of 133 degrees Fahrenheit for 15 seconds can result in a third degree burn.. Exposure to a hot water temperature of 140 degrees Fahrenheit for 5 seconds can result in a third degree burn. 18.7. A review of surveyor guidance for identified hot tap water temperatures that may cause scald burns in health care facilities revealed further that third degree burns (1) destroy all layers of the skin; (2) may involve the destruction of fat, muscle and bone; (3) will require skin grafts for healing; (4) render the skin very bright red or dry and leathery, charred, waxy white, tan or brown in appearance; (5) may result in visible charred burns; and (6) render the affected area insensate to touch in areas of full thickness injury. 18.8. On 9/8/03 at approximately 11:03 am, the survey team determined that temperatures should be taken in most rooms to determine the extent of hot water issues in resident rooms. 18.9. Surveyors calibrated their thermometers to 32 degrees Fahrenheit in ice water and began to take temperatures of water in the 100, 200 and 300 Units while another member of the survey team went to the Maintenance Department to determine how hot water was supplied to the different units. 18.10. The facility Administrator was advised of the concerns of the AHCA survey team relating to the hot water issue on 9/8/03 at approximately 11:36 am. 18.11. Members of the survey team determined that hot water temperatures in the 200 and 300 Units of the facility were 115 degrees Fahrenheit or less and thus were in compliance with Florida’s excessively hot tap water rule as enunciated in Rule 59A- 4.133(16)(d), Florida Administrative Code. 18.12. Hot water temperatures in the 100 Unit were recorded as follows: 18.12.1. In room #111 the hot water temperature in the room sink was noted to be 140 degrees Fahrenheit and the hot water temperature in the bathroom sink was noted to be 138 degrees Fahrenheit. The hot water temperature in the shower was recorded as 136 degrees Fahrenheit. Room #113 shares the shower with room #111. 18.12.2. The hot water temperature in the room sink of room #113 was recorded as 130 degrees Fahrenheit. 18.12.3. The hot water temperature in the room sink in room #115 was recorded as 132 degrees Fahrenheit and the hot water temperature in the shower in room #115 was recorded as 132 degrees Fahrenheit. No residents were occupying room #115 on the dates of the survey. 48.12.4. The hot water temperature in the bathroom sink of the room occupied by random sampled Resident #26 was recorded as 137 degrees Fahrenheit and the hot water temperature in the shower was recorded as 136 degrees Fahrenheit. 48.12.5. The hot water in the shower in the room occupied by random sampled Resident #26 was so hot that it steamed up the surveyor’s eyeglasses, as witnessed by both the Unit Manager and the Assistant Maintenance Director of the facility. 18.12.6. In response to the surveyor's inquiry as to whether or not Resident #26 could get to the sink or shower, the Unit Manager stated that Resident #26 ambulates independently and could get to the sink. 18.12.7. On 9/8/03 at approximately 12:00 pm the surveyor on the 100 Unit was informed by another surveyor that the temperature of the supply water entering the 100 Unit had been reduced by the Maintenance Director from 150 degrees Fahrenheit to 114 degrees Fahrenheit at approximately 11:50 am. 48.12.8. The survey team continued to record hot water temperatures in resident rooms on the 100 Unit and the hot water temperature in the bathroom sink in the room occupied by Resident #2 was recorded as 118 degrees Fahrenheit at 12:17 pm and decreased to 115 degrees Fahrenheit as the water was running. 18.12.9. At approximately 12:12 pm a member of the survey team recorded the hot water temperature as 123 degrees Fahrenheit in the room sink in room #106. 18.12.10. Members of the survey team observed that temperatures of hot water on the 100 Unit gradually decreased to below 115 degrees Fahrenheit after the temperature of the hot water supplied to the Unit was decreased from 150 degrees Fahrenheit to 114 degrees Fahrenheit. 18.13. At approximately 11:50 am on 9/8/03 the Maintenance Director accompanied a member of the survey team to the mechanical room and identified the water supply to the 100 Unit and the Dietary Department. It was determined at this time that the 100 Unit and the Dietary Department are on the same hot water system. The hot water supplied to the remainder of the building [the 200 Unit and the 300 Unit] is on a separate and different system. 18.14. At approximately 11:50 am on 9/8/03 the Maintenance Director accompanied a member of the survey team identified and verified the temperature- recording device for the hot water supply into the 100 Unit and further verified that the temperature of the water being supplied to the 100 Unit at that time was 150 degrees Fahrenheit. 18.15. The Maintenance Director acknowledged to the surveyor that the temperature of the water being supplied to the 100 Unit {150 degrees Fahrenheit] was “way too hot”. The Maintenance Director began turning a mixing valve located above the temperature-recording device to add cold water to the water being supplied to the 100 Unit, reducing the temperature of the hot water supplied to the unit to 114 degrees Fahrenheit. 18.16. The Maintenance Director was asked by the surveyor how frequently the water temperatures of the water being supplied to the 100 Unit were monitored at the 11 source in the mechanical room. The Maintenance Director informed the surveyor that temperatures were checked and recorded there on a weekly basis. 18.17. The survey team then undertook and completed a review of water temperature monitoring documentation for the 100 Unit and the Dietary Department. The review revealed that the water temperatures had been recorded monthly beginning on 2/3/03 and had last been recorded on 8/14/03. There was no documentation of any further monitoring and the Maintenance Director verified that no further monitoring after 8/14/03 had been performed. 18.18. The documentation of water temperature monitoring for the 100 Unit and the Dietary Department dated 8/14/03 showed a supply temperature of 115 degrees Fahrenheit and a return temperature of 126 degrees Fahrenheit. The Maintenance Director told the surveyor that it was not possible for the return temperature to be higher than the supply temperature and that the recording therefore was probably not accurate. 18.19. In response to inquiry by the surveyor as to whether the facility recorded hot water temperatures in resident rooms at the sink and showerheads, the Maintenance Director stated that no water temperatures are taken in resident rooms as part of any monitoring undertaken by the facility. 18.20. A discussion was held between a member of the survey team and the Maintenance Director regarding Preventive Maintenance on the mixing valve. The Maintenance Director found information indicating the mixing valve for the 100 Unit water supply should be removed, cleaned, and replaced every 90 days. Failure to perform routine preventive maintenance on this mixing valve would cause the mixing valve to fail resulting in hot water being supplied to the 100 Unit at a higher temperature. 18.21. Pursuant to a review of facility documentation and an interview with the Maintenance Director, it was discovered that the facility had not performed maintenance on the mixing valve for a period in excess of 150 days. 18.22. The Maintenance Director told the ANCA surveyor that he was not aware of the existence of any instructions in the facility regarding how to perform preventive maintenance on the mixing valve. 18.23. The former Maintenance Director was contacted and he stated that there was a folder for preventive maintenance on the mixing valve in the maintenance office of the facility. The current Maintenance Director was then able to locate the folder with the instructions for maintenance of the mixing valve. 18.24. In an interview with a member of the survey team at approximately 12:05 P.M. on 9/8/03, the Assistant Maintenance Director told the surveyor that he had not monitored the supply and return water temperatures for the 100 Unit the previous week. 18.25. On 9/08/03, a plumber was called to the facility to perform preventive maintenance on the mixing valve. At approximately 3:25 P.M., the plumber had removed and replaced a cartridge in the mixing valve located on the 100 Unit water supply. 18.26. During an interview with a member of the survey team at approximately 4:10 P.M. on 9/8/03, the facility Administrator acknowledged that neither she nor the Maintenance Director were aware of the need to perform preventive maintenance on the mixing vaive at least every 90 days. 18.27. On 9/09/03, a plumber was called to the facility to address a problem of the water not being hot enough on the 100 Unit. The Maintenance Director, at approximately 4:10 P.M., informed a member of the survey team that the circulating pump on the water supply to the 100 Unit was not working properly, causing water supplied to the 100 Unit to be too cold. The Maintenance Director told the surveyor that the facility was having a new circulating pump installed and that the water should soon be back on line in the 100 Unit. At approximately 4:35 P.M., a member of the survey team was informed that the new circulating pump had been installed and that the water to the 100 Unit was back on line. 18.28. On 9/10/03 at approximately 9:35 am, the Administrator and Maintenance Director reported to two members of the survey team that the hot water temperature on the 100 Unit had fluctuated between 96 and 125 degrees Fahrenheit at approximately 7:30 P.M. on the previous evening (9/9/03). They additionally reported that on 9/9/03, the plumber who had installed the new circulating pump on the water supply to the 100 Unit had apparently failed to open the cold water mixing valve following the installation of the new pump. 18.29. On 9/10/03 at approximately 7:45 am, a second plumber discovered that the cold water supply to the mixing valve for the water supply to the 100 Unit had been turned off. The system was then checked and both return lines were bled. The mixing valve was re-set to 114 degrees Fahrenheit. The plumber additionally explained to maintenance on 9/10/03 the need for periodic cleaning and maintenance of the mixing valve and furnished maintenance with both a parts breakdown and instructions from the manufacturer. 18.30. On 9/8/03 at approximately 2:20 pm, a member of the survey team requested the Unit Manager for the 100 Unit to supply a list of residents who wander together with their respective room numbers, in addition to a copy of the face sheet for each resident. The list of wanderers supplied by the Unit Manager revealed that 17 of 33 current residents [more than one-half] were identified by the facility as wanderers. 18.31. A Certified Nursing Assistant (CNA) on the 100 Unit in an interview with a survey team member on 9/8/03 at approximately 2:25 pm, acknowledged her awareness that the hot water in the unit was "hotter than normal" recently. The CNA indicated that prior to giving a resident a shower she always checked the water to ensure that it was not too hot. 48.32. A second CNA who was interviewed by a member of the survey team on 9/8/03 at approximately 2:28 pm stated that she "noticed the hot water being hot but adjusted it.". This CNA stated that she did not report the hot water being hotter than normal but adjusted the water temperature for resident showers. 18.33. A third CNA interviewed by a member of the survey team on 9/8/03 at approximately 2:30 pm, indicated that she, too, had noticed that the hot water was warm. 18.34. At approximately 3:40 pm on 9/8/03, members of the survey team went to the 100 Unit to observe residents. 48.35. On 9/8/03 at approximately 3:40 pm., a member of the survey team observed Resident #1 walk into the bathroom in Room #113. Resident #1 does not reside in Room #113. At approximately 3:45 P.M., another member of the survey team observed Resident #1 outside the entrance to Room #113. The door to Room #113 was open and Resident #1 walked into the room and stood at the bedside on the window side of the bed. A female resident, covered and lying in bed, occupied the bed. The door to the bathroom was open and running water could be heard in that room. The surveyor observed that water was dripping from the faucet of the corner sink in Room #113. Resident #1 waiked unattended from bedside into the bathroom in Room #113, and was observed to stand in front of the sink where water was observed to be flowing in a steady stream. Resident #1 then walked out of bathroom area into Room #113 and then proceeded to walk out into the hallway. 48.36. Another member of the survey team was summoned to Room #113 and confirmed that warm water was running in the bathroom located between Rooms #111 and #113 and a dripping sink faucet in Room #113. Room #113 was noted earlier in the day to having hot water temperatures at 134 degree Fahrenheit or above in the room sink and bathroom sink. The bathroom sink, with water running, was hand tested by the surveyor and noted to be warm to touch. The faucet had 2 handies and when the coid 15 water handle was turned to the “off position no change in the water flow was noted. When the hot water handle was turned to the “off” position the water flow was slightly reduced, but still flowed in a steady stream. The corner sink in Room #113 was then hand tested and was noted to be warm to the touch. The water in this sink was dripping at a rate of approximately 116 drops per minute. 18.37. On 9/8/03 at approximately 4:05 P.M. Resident #1 was observed wandering in the hallway near Room #113. The doors to the adjoining bathroom were closed in Rooms #111 and #113. Water from the corner sink in Room #113 was still dripping at a rate of approximately 116 drops per minute and was warm to the touch. Resident #1 entered Room #113, walked toward the window bed, then turned and walked out of the room. After knocking, a member of the survey team entered the room and then knocked on the bathroom door. After determining that the bathroom was not occupied, the surveyor entered the bathroom and observed that water was flowing in the bathroom sink in a steady stream and was warm to the touch. The surveyor then left the bathroom and re-entered Room #113. The surveyor then heard a voice in the bathroom and knocked on the door, obtaining verbal confirmation that the bathroom was occupied. The water in the bathroom sink was still flowing. 18.38. On 9/8/03 at approximately 4:08 P.M., the same surveyor observed that the door in the bathroom adjoining Room #111 was open. Resident #1 was observed wandering, unattended in hallway near the Rooms #111 and #113. Resident #1 entered Room #113 at approximately 4:09 pm, walked toward the bathroom then turned away and exited the room. 18.39. On 9/8/03 at approximately 4:10 P.M., the Unit Manager and a CNA entered Room #113 and closed the door to the hallway. From Room #111a member of the survey team observed that the water in the adjoining bathroom sink was running at a steady flow. The Unit Manager and CNA exited Room #113 at approximately 4:14 P.M. leaving the door to Room #113 open. A member of the survey team observed that the corner sink in Room #113 was still dripping water at the rate of approximately 116 drops per minute. 18.40. On 9/8/03 at approximately 4:25 pm, 2 CNAs entered Room #111 and exited the room at approximately 4:35 P.M. After their exit, a member of the survey team observed that the sink in the adjoining bathroom was still running at steady stream and was still warm to the touch. 18.41. The survey team conducted record review for Resident #1 and discovered that the resident was admitted to the facility on 4/12/02 and resides in the 4100 Unit. Resident #1's diagnoses include but are not limited to: Terminal Dementia, Dementia Alzheimer's type, and Depression. 18.41.1. An MDS (Minimum Data Set) completed on 7/5/03 evidenced that Resident #1 was assessed with level 2 [moderately impaired] cognitive skills for daily decision making (B4-MDS quarterly assessment). It was noted that Resident #1 made poor daily decisions and that cues/supervision were required. Resident #1 was assessed at a level 2 on the E1-MDS quarterly assessment, with indicators of depression, anxiety and sad mood. It was noted that Resident #1 engaged in repetitive physical movements- e.g. pacing, hand wringing, restlessness, fidgeting, picking. The E4-MDS quarterly assessment demonstrated that Resident #1 exhibited behavioral symptoms at a 3/1 level, with wandering behaviors (moving with no rational purpose, seemingly oblivious to needs or safety). It was noted that behavior of this type occurred daily and was not easily altered. The G4-MDS quarterly assessment revealed no functional limitations in Resident #1’s range of motion. 18.41.2. The resident's Care Plan, dated 9/3/03, identifies problem areas that include, "Resident wanders in hallways and occasionally demonstrates 7 restlessness." Walk in Room (G1c) Walk in Corridor (G1d) Locomotion on Unit (Gle) was assessed at 0/0 - Independent - No help or oversight - OR - help/oversight provided only 1 or 2 times during last 7 days / No set up or physical help from staff. Stability of Conditions (J5) identified (a) Conditions / diseases make resident's cognitive, ADL, mood or behavior status unstable. 18.41.3. The nurse's progress note for the time period 8/1/03 through 9/1/03 revealed written entry in Sleep Pattern section - Normal for patient - box "X" and handwritten entry of "gets up to use B.R. (bathroom) wanders + gets miss placed out of room, redirected to BR (bedroom) + bed. Additional Comments contain written entry - "wanders when OOB (out of bed) - looking for B.R. (bathroom) or another bed." 18.41.4. A member of the survey team conducted an interview with Resident #1's spouse on 9/8/03 at approximately 4:00 P.M. The resident's spouse confirmed that Resident #1 ambulates independently and freely wanders throughout the Alzheimer’s unit [Unit 100]. 18.41.5. Because Resident #1 is able to and does go into the bathroom by him/herself, there is a significant potential for this resident to be harmed by the excessively hot water temperatures recorded in the Unit and by this facility's practice related to hot water temperatures. 18,42. On 9/8/03 at approximately 3:40 pm, random sample Resident #28 was observed wandering in the hall on the 100 Unit by a member of the survey team. The resident's spouse was present and verified that the resident wanders from room to room. 18.43. On 9/8/03 at approximately 3:40 pm a member of the survey team observed random sample Resident #26 on the 100 Unit. At approximately 3:46 P.M., a staff Licensed Practical Nurse (LPN) together with the surveyor asked random sampled Resident #26 if he/she could identify the hot water valve on the sink located in the bathroom. He/she stated, "I can” and the resident did locate the hot water faucet. When asked if he/she could turn on the hot water, he/she demonstrated he/she was capable of performing this task by turning on the hot water valve. 18.44. Resident #2 was admitted on 3/25/03 with diagnoses including but not limited to Dementia. 18.44.1. The resident, in Section B2 - Memory of the quarterly MDS (Minimum Data Set) completed on 7/2/03, was assessed as having both long and short term memory problems. 18.44.2 Section B3 - Memory Re-Call Ability of the quarterly MDS is noted to be able to recall his/her room location and staff names/faces. 18.44.3. Section B4 of the MDS assesses the resident as being capable of making modified independent decisions. 18.44.4 Section E4 - Behavior Symptoms of the MDS assesses Resident #2 as a wanderer. The notation reflects that the resident wanders 4 to 6 days per week (but less than daily) and reflects that the resident's wandering behavior is not easily altered. 18.44.5 In Section G1 of the MDS - Assistance with Activities of Daily Living, the resident is assessed to be independent for bed mobility, transfer, walking in his/her room, walking in the corridor, and locomotion on the unit. The resident is assessed as being independent in eating after staff set up, and needs limited assistance (one person physical assist) for dressing, toilet use, and personal hygiene. 18.44.6 A review of the Resident Assessment Protocol (RAP) for Resident #2, completed on 4/8/03, evidenced that the resident is at risk for falls relative to wandering and impaired vision. 19 18.44.7 Resident #2’s care plan, which was updated on 7/10/03, evidenced that the resident requires limited assistance with dressing/toileting. The enunciated approaches are to allow the resident to do as much as possible for him/herself. The resident is also care planned for falls related to wandering and impaired vision. The approaches enunciated include redirecting as needed and proper footwear. 18.44.8 A care plan developed 7/10/03 notes that Resident #2 wanders in the hallways and wanders uninvited into other residents’ rooms. Enunciated approaches include counseling relating to wandering, providing re- direction and appraising appropriate behavior, ensuring that the resident’s name is on the list of wandering residents kept at the nurse’s station, keeping the resident close to a supervised area, and providing staff interventions to redirect the resident when wandering is observed. 18.44.9 On 9/8/03 at approximately 4:10 P.M., a member of the survey team conducted a telephone interview with Resident #2’s Power of Attorney (POA). The POA stated that she visits the resident once per month and confirmed that the resident is able to ambulate freely throughout the closed unit. 18.44.10 On 9/8/03 at approximately 4:20 pm Resident #2 was walking around the outside patio area of the 100 Unit. A member of the survey team observed the resident walking through water that was dripping onto the cement from an air conditioner and through a puddie of water resulting from water dripping off a sagging eave trough. 18.44.11 On 9/10/03, a member of the survey team observed Resident #2 walking around and through the water water puddles on the outside patio of the 100 Unit. No staff was observed monitoring the resident's activities. Water 20 from the air conditioner and the eave trough continued to leak onto the cement as observed on 9/8/03. 18.44.12 Resident #3 was admitted to the facility on 4/15/03 with multiple diagnoses including but not limited tom Dementia. 18.44.13 Review of the Resident's MDS (Minimum Data Set), dated 7/11/03, reflected that the resident's cognition was assessed as level 1, indicating that the resident had modified independence and experienced some difficulty in cognition in new situations only. 18.44.14 In Section E 4 of the MDS - Behavioral Symptoms _ the resident was assessed as level 3/1 and noted that the resident was a wanderer (moving with no rational purpose, seemingly oblivious to his/her needs or safety). It was further noted that this wandering behavior occurred daily and was not easily altered. 48.44.15 Review of the nurse's notes for this resident by a member of the survey team confirmed that the resident wanders. On 8/18/03, the nurse noted that the resident is independent in ambulation, wanders into other residents’ rooms and is difficult to redirect. The nurse further noted that the resident is care planned for wandering. The observations made in these nurse’s notes were confirmed by observations of the resident by the survey team throughout the duration of the survey. 18.44.16 A survey team member conducted an interview with the resident's spouse on 9/8/03 at approximately 4:15 pm. The resident’s spouse informed the surveyor that the resident wanders on the unit and had been moved closer to the nurse's station for closer observation. The spouse stated that the resident is able to go to the bathroom by him/herself and can wash his/her hands. 21 48.44.17 In an interview by a survey team member with the Unit Manager on 9/8/03, the Unit Manager described the resident as having “good days and bad days” and confirmed that the resident is able to go to the bathroom and wash his/her hands independently. 18.44.18 Resident #16 was admitted to the facility on 9/12/2000 with multiple diagnoses including but not limited to Alzheimer's. 18.44.19 A review of the MDS dated 6/28/03 by a member of the survey team evidenced that Resident #16 was assessed at a cognition level 2, noting the resident to be moderately impaired in cognition with poor decisions and indicates that cues/supervision are required. 18.44.20 Although Section E 4 of the MDS - Behavioral Symptoms does not identify Resident #16 as a wanderer, an interview by a member of the survey team with the Unit Manager and review of the resident's clinical record revealed that the resident does wander the Unit. 48.44.21 Further review of the MDS and nurses notes by a survey team member evidenced that Resident #16 is independent in ambulation. 48.44.22 An interview by a survey team member with a staff LPN and Resident #16 on 9/10/03 at approximately 3:45 P.M., revealed that the resident is independent in toileting and hand washing. The resident was able to point out the bathroom in his/ner room. 18.45 Resident #4 was admitted to the facility on 11/29/03 with multiple diagnoses including but not limited to Dementia. 48.45.1 Review of the Resident's MDS (Minimum Data Set) dated 6/4/03 evidenced that the resident's cognition is assessed as level 1, reflecting modified independence and noting that the resident experiences some difficulty in cognition in new situations only. 22 18.45.2 in Section E 4 of the MDS - Behavioral Symptoms _ the resident is assessed at level 3/1 and is noted to be a wanderer (moving with no rational purpose, seemingly oblivious to his/her needs or safety). It is noted that the resident’s wandering behavior occurred daily and was not easily altered. 18.45.3. Areview of the nurse's notes by a member of the survey team confirms that the resident wanders. 18.45.4 Resident #16 was identified by the facility as a resident who wanders in the 100 Unit. At various times on 9/8-9/03 this resident was observed by a member of the survey team wandering about the Unit without supervision. The resident was observed entering his/her room and the bathroom without supervision. 18.45.5 A member of the survey team conducted an interview with Resident #16’s spouse on 9/08/03 at approximately 4:25 pm, in which the spouse confirmed that the resident ambulates independently and wanders throughout the closed unit. The spouse told the surveyor that the resident can use the bathroom and wash his/her hands independently. 18.45.6 The care plans for Resident #16 reflect that he/she requires limited assistance for activities of daily living and is able to ambulate independently. The resident is also identified in the care plans as frequently wandering in the hallways. The resident is also identified as a high risk for elopement. 18.46 At approximately 8:30 am on 9/10/03, a member of the survey team observed the bathroom shared by and adjoining Rooms #111 and #113 with the door ajar at the 113 entry and the 111 side open. A resident in room 111 was being fed breakfast by a staff member. The surveyor observed that the water was running in the sink in the bathroom in a steady flow of water and further observed that the water was 23 warm to touch. The surveyor further observed that the water in the corner sink in Room #113 was dripping at the rate of approximately 80 drops per minute and that it was warm to the touch. The surveyor attempted to shut off the hot and cold faucet tap handles, but there was no change in the water flow. 18.47 A review of Administrative Management policies during the survey revealed the Administrator is responsible for "Managing the day to day functions of the facility." Additionally the Administrator is responsible for "Evaluating and implementing recommendations from the facility's committees (i.e. Quality Assessment and Assurance, Safety, etc.).” 18.47.1. The Quality Assessment and Assurance Plan indicates that one of the purposes under item 1 is "To provide a means whereby negative outcomes relative to resident care and safety can be identified and resolved through an interdisciplinary approach and effective systems of services and positive care measures rendered can be reinforced and expanded to improve care given”. Under item 2 one of the stated purposes is “To establish and provide a system to support evidence of an ongoing Quality Assessment and Assurance Program, encompassing all aspects of resident care including safety, infection control, and quality of life applicable to nursing home residents." 18.47.2 | The Focus of the Quality Assurance Plan includes in item 2 "The quality and appropriateness of resident care, including the identification of trends in performance, are monitored and evaluated in the following areas: Physical Environment, Safety.” 18.47.3 Under Safety in the Quality Assessment and Assurance Committee item 3 states "Promoting a safe and sanitary environment” and item 9 states "Assuring that water temperatures are checked and adjusted as necessary for resident comfort and safety”. 24 18.47.4 In the Environmental Services section of the Quality Assessment and Assurance Committee duties and responsibilities include but are not limited to "10. Assisting in establishing a preventive maintenance program". 18.47.5 Under the Administrative regulations the facility defines Accident Hazard as "physical features in the NF environment that can endanger a residents safety, including but not limited to: Poorly maintained resident equipment.......... Water temperatures in hand sinks or bath tubs which can scald or harm residents.” 18.47.6 As noted above the facility failed to assure a preventive maintenance program was in place to check, clean, and replace the mixing valve on a routine basis. The facility further failed to assure that water temperatures are checked and adjusted as necessary for resident comfort and safety. 18.48 On 9/11/03 at approximately 10:00 am a surveyor reviewed the facility's Administrative policy and procedures with respect to Quality Assurance (QA). Page 3 of the QA documents indicates under "Focus" the facility will evaluate the quality and appropriateness of resident care to include but not limited to the following area "Physical Environment" and "Safety.” 18.49 A further review of the Quality Assurance policy on page 7 reveals under Accidents that the "Accident hazards are defined as physical features in the NF environment that can endanger a resident's safety..." 419. in Count I of the instant Complaint, AHCA seeks to impose certain administrative fines for the alleged violation of Florida’s “excessively hot tap water” regulatory rule [a $25,000 fine for a patterned deficiency - the fine amount representing a doubling of the $12,500 fine due to the citing of Class | tags on the survey conducted on February 9-14, 2003] and an additional fine in the amount of $6,000 for the mandated 6-month survey cycle pursuant to the provisions 25 of Section 400.419(9), Florida Statutes. The case pertains to the alleged existence of a dangerous hot tap water situation at VENICE REHAB’s skilled nursing facility on or about September 8-12, 2003 identified by AHCA surveyors as a patterned deficiency and to the failure of the administration of the facility to develop and implement policies and procedures for the monitoring and maintenance of the hot water system that supplies hot water to residents in the 100 Unit [secured unit] of the facility, the failure of the administration of the facility to monitor the water system that supplies hot water to the 100 Unit of the facility, the failure of the facility to monitor or to have in place a system to monitor the temperature of hot water supplied throughout the facility in room sinks, bathroom sinks and showers and the failure of the facility to ensure that the resident environment remained as free of accident hazards as possible, resulting in excessively hot tap water. AHCA alleges that the excessively hot tap water resulted in a situation likely to cause serious injury or harm to residents. 20. The fact that VENICE REHAB was cited during a previous survey conducted on February 9-14, 2003 for Class | deficiencies mandates the doubling of the $12,500 fine amount, resulting in the imposition of a fine in the amount of $25,000.Two administrative complaints were filed against Venice Rehab as a result of the annual survey conducted on February 9-14, 2003 where the facility was cited for three (3) Class | deficiencies. One of the administrative complaints, AHCA NO: 2003001394, relating to that survey sought the imposition of a conditional licensure status. [The referenced Administrative Complaint is marked for identification as Petitioner's Exhibit “A” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint]. The second administrative complaint relating to that survey, AHCA NO: 2003001393, citing VENICE REHAB with three (3) Class | deficiencies, sought the imposition of administrative fines against the facility. {The referenced Administrative Complaint is marked for identification as Petitioner's Exhibit “B” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint]. In the 26 instant Administrative Complaint, VENICE REHAB has been cited with a Class | deficiency related to the facility's alleged violation of Florida’s excessive hot tap water rule. 21, Additionally, an Order of Immediate Moratorium [AHCA No. 2003003532] was imposed upon VENICE REHAB on October 10, 2003, based on the identification of an immediate jeopardy situation on October 8-9, 2003, where the facility failed to adequately supervise/monitor a resident known to be an elopement risk. The resident wandered off, climbed a ladder and fell to his death. The Order of Immediate Moratorium [AHCA No. 2003003532] is marked for identification as Petitioner's Exhibit “C” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. 22. As a result of a focused appraisal visit conducted at VENICE REHAB on October 9, 2003 the facility was cited with two (2) Class | deficiencies and two Administrative Complaints were filed against the facility. One of the two Administrative Complaints [AHCA No. 2003007802] consisted of an action to impose administrative fines against the facility. A copy of the Administrative Complaint bearing AHCA No. 2003007802 is marked for identification as Petitioner's Exhibit “D’ and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. The second of the Administrative Complaints filed against the facility emanating from the focused appraisal visit conducted on September 9, 2003 [AHCA No. 2003007803] consists of an action to impose a conditional license status on the facility. A copy of the Administrative Complaint bearing AHCA No. 2003007803 is marked for identification as Petitioner's Exhibit “E” and is attached and incorporated in its entirety by reference into the instant Administrative Complaint. 23. The facility was provided with a mandatory correction date of 10/12/03 for the Class | deficiency cited as a result of the annual survey conducted on September 8-12, 2003. 24. Additionally, in Count It of the instant Complaint AHCA seeks to revoke the facility's license pursuant to the provisions of 400.121(3)(d) on the basis that the facility has been cited for six (6) class | deficiencies arising from separate surveys or investigations within a 27 30 month period. Venice Rehab was cited for three (3) Class | deficiencies in the survey conducted on February 9-14, 2003. Additionally, Venice Rehab was cited for one (1) Class | deficiency in the survey conducted on September 8-12, 2003. On October 8-9, 2003, AHCA imposed an Order of Immediate Moratorium against VENICE REHAB and found immediate jeopardy that resulted in the death of one of the residents of the facility and that moreover resulted in the citation on October 9, 2003 two (2) additional Class | deficiencies against the facility. Under these facts, the provisions of Section 400.121(3)(d), Florida Statutes mandate that AHCA seek revocation of the facility’s license. CLASSIFICATION OF THE VIOLATIONS IN COUNT | AS “CLASS |” “PATTERNED” DEFICIENCIES and CLASSIFICATION OF THE VIOLATIONS IN COUNT II AS “CLASS Ill” “ISOLATED” DEFICIENCIES AS “CLASS III” “ISOLATED VEE 25. When a nursing home has been cited for a deficiency in meeting regulatory requirements, AHCA is mandated by Section 400.23(8), Florida Statutes (2002) to classify each deficiency “according to the nature and the scope of the deficiency”. The statute mandates both that the “scope shall be cited as isolated, patterned, or widespread” and that the “classification” of the deficiency be indicated on “the notice of deficiencies” as one of four (4) classifications listed and defined in subsection (8)(a) through (8)(d). 26. With regard to the scope of the alleged violation here, at the time of the survey, the excessively hot water temperatures measured by AHCA surveyors were found to have affected all 33 of the residents in the Alzheimer’s Unit [100 Unit] because the water being delivered to resident room, bathroom and shower sinks was determined to be 150 degrees Fahrenheit at the source. During the survey process members of the survey team, using calibrated thermometers, measured hot water temperatures delivered to resident rooms as follows: room 129 at 121 degrees Fahrenheit (degrees Fahrenheit = F), Resident room #4's hot water at 121 F, room 113 hot water at 134 F, room 111 hot water at 140 F, the bathroom sink in room 111 at 138 F, the shower in room 111 at 136 F, the hot water in room 113 sink at 130 F, 28 room 115 sink at 132 F, the shower in 115 at 132 F, Resident #26 bathroom sink at 137 F, Resident #2 room sink at 118 F, and room 106 sink at 123 F. Seventeen (17) of the 33 residents in the 100 Unit were identified by the facility as wanderers. Based upon these facts, AHCA established the scope of the deficiency as “patterned”. 27. between: As to the “classification” of the alleged deficiencies, the Agency must choose a. A Class | deficiency which “is a deficiency that the agency determines presents a_ situation in which immediate corrective action is necessary because the facility's non-compliance has caused, or is likely to cause serious injury, harm, impairment or death to_a resident receiving care...” [Emphasis added]. . A Class || deficiency which “is a deficiency that the agency determines has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.” A Class Ill deficiency which “is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident, or has the potential to compromise the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.” [The Class IV option is omitted]. 27.1. The presence of hot water temperatures above 115 degrees Fahrenheit presents the risk of scalding and burns. Elderly persons are especially susceptible to scalding and burns as a result of excessively hot water due to the condition of the skin of elderly people in addition to the slower physical reaction times. The excessively hot water temperatures identified and documented in VENICE REHAB's skilled nursing facility on September 8 — 12, 2003 affected 33 residents on one of three wings of the facility - the Alzheimer’s Unit. Seventeen of those 33 residents were identified by the facility as known wanderers. The survey team documented that the temperature of the water being supplied to the Alzheimer’s Unit from the boiler room was 150 degrees 29 Fahrenheit. A review of surveyor guidance for identified hot tap water temperatures that may cause scald burns in health care facilities revealed that exposure to a hot water temperature of 133 degrees Fahrenheit for 15 seconds can result in a third degree burn. Exposure to a hot water temperature of 140 degrees Fahrenheit for 5 seconds can result in a third degree burn. A review of surveyor guidance for identified hot tap water temperatures that may cause scald burns in health care facilities revealed further that third degree burns (1) destroy all layers of the skin; (2) may involve the destruction of fat, muscle and bone; (3) will require skin grafts for healing; (4) render the skin very bright red or dry and leathery, charred, waxy white, tan or brown in appearance; (5) may result in visible charred burns; and (6) render the affected area insensate to touch in areas of full thickness injury. All of these combined factors resulted in and support the propriety of the classification of the deficiency as Class | by AHCA. 27.2. It is critical that the system for delivery of hot water to residents of a facility be well planned, well designed, well maintained, properly monitored and well- implemented to ensure compliance with Florida’s excessively hot tap water rule and to protect elderly facility residents from scalding and burns. The source of the excessively hot tap water identified and documented at VENICE REHAB on September 8-12, 2003 was a hot water heater that delivered hot water to the 100 Unit [Alzheimer’s Unit} and the dietary department and the temperature of the hot water at the supply source was recorded and documented to be 150 degrees Fahrenheit. The facility failed to ever test and/or document any water temperatures in resident room and bathroom sinks or showers in the 100 Unit. Water temperatures at the supply source for the 100 Unit had been recorded only monthly beginning on 2/3/03 and had last been recorded on 8/14/03. There was no documentation of any further monitoring and the Maintenance Director verified that no further monitoring after 8/14/03 had been performed. The mixing valve for the 100 Unit water supply should be removed, cleaned, and replaced every 90 days. 30 Failure to perform routine preventive maintenance on this mixing valve would cause the mixing valve to fail resulting in hot water being supplied to the 100 Unit at a higher temperature. Pursuant to a review of facility documentation and an interview with the Maintenance Director, it was discovered that the facility had not performed maintenance on the mixing valve for a period in excess of 150 days. These failures on the part of the administration of the facility resulted in the facility's noncompliance with Florida’s excessively hot tap water rule. 28. Count |I of the within Complaint is an action whereby AHCA seeks to revoke the facility’s license on the basis that the facility has been cited for seven (7) Class | deficiencies since February 2003 ~ in a period of 8 months. Section 400.121(3)(d), Florida Statutes mandates that AHCA revoke the license of a facility that has been cited for two Class | deficiencies in a period of 30 months. COUNT! ADMINISTRATIVE FINES FOR THE VIOLATIONS & FOR THE MANDATED 6-MONTH SURVEY CYCLE FINE: VENICE REHAB WAS IN VIOLATION OF THE APPLICABLE HOT TAP WATER RULE DURING THE ANNUAL SURVEY OF SEPTEMBER 8-12, 2003; THE FAILURE OF THE ADMINISTRATION OF THE FACILITY TO DEVELOP AND IMPLEMENT POLICIES AND PROCEDURES FOR THE MONITORING AND MAINTENANCE OF THE HOT WATER SYSTEM THAT SUPPLIES HOT WATER TO RESIDENTS IN THE 100 UNIT [ALZHEIMER’S UNIT] OF THE FACILITY; THE FAILURE OF THE ADMINISTRATION OF THE FACILITY TO MONITOR THE WATER SYSTEM THAT SUPPLIES HOT WATER TO THE 100 UNIT OF THE FACILITY; THE FAILURE OF THE FACILITY TO MONITOR OR TO HAVE IN PLACE A SYSTEM TO MONITOR THE TEMPERATURE OF HOT WATER SUPPLIED THROUGHOUT THE FACILITY IN ROOM SINKS, BATHROOM SINKS AND SHOWERS AND THE FAILURE OF THE FACILITY TO ENSURE THAT THE RESIDENT ENVIRONMENT REMAINED AS FREE OF ACCIDENT HAZARDS AS POSSIBLE, RESULTING IN EXCESSIVELY HOT TAP WATER, WHICH VIOLATIONS CONSTITUTE A “CLASS |” DEFICIENCY § 400.23(8)(a), Florida Statutes (2002) Rule 59A-4.1288; Rule 59-A4.133(16)(d), Florida Administrative Code (2002) 42 CFR 483.75(b) and (d)(1); 42 CFR 483.25 (h)(1); Section 400.419(3), Florida Statutes 29. AHCA re-alleges and incorporates by reference paragraphs one (1) through twenty-eight (28) above as if fully set forth herein. 30. VENICE REHAB’S conduct, actions and inaction in this matter establish: (a) the violation by VENICE REHAB of the referenced regulatory rule that hot tap water temperatures may not exceed 115 degrees Fahrenheit for resident use; (b) the violation of the referenced provisions of the Code of Federal Regulations as a result of the failure of VENICE REHAB to have any procedure for the monitoring of hot water temperatures for the supply source hot water heater that provided hot water to Unit 100 [Alzheimer’s Unit]; (c) the violation of the referenced provisions of the Code of Federal Regulations as a result of the failure of VENICE REHAB to have any procedure to maintain the mixing valve of the supply hot water heater that provided hot water to Unit 100 [Alzheimer’s Unit]; (d) the violation of the referenced provisions of the Code of Federal Regulations as a result of the failure of VENICE REHAB to adequately monitor the hot water temperature at the hot water heater that supplied hot water to Unit 100 [Alzheimer’s Unit), (e) the failure of VENICE REHAB to adequately maintain the mixing valve for the hot water heater that supplied hot water to Unit 100 [Alzheimer’s Unit]; (f) the failure of VENICE REHAB to assure that the residents’ environment is safe from accident hazards, resulting in excessively hot tap water; and (g) that these thus-proven violations are Class | violations that are “patterned” in scope as defined by Florida law. 31, Section 400.23(8)(a), Florida Statutes (2002) mandates assessment of a fine in the amount of $12,500 for a Class | violation that is a patterned violation and mandates the doubling of that assessment where a facility has been cited in a previous survey with a Class | deficiency. Because VENICE REHAB was cited in the survey conducted on February 9-14, 2003 with three (3) Class | deficiencies, the statute mandates that a fine in the amount of $25,000 be assessed for the Class | deficiency cited in the survey conducted on September 8- 12, 2003. COUNT Il STATUTORILY MANDATED REVOCATION OF VENICE REHAB’S LICENSE AS A RESULT OF THE FACILITY HAVING BEEN CITED WITH SIX (6) CLASS I DEFICIENCIES RESULTING FROM SEPARATE SURVEYS OR INVESTIGATIONS WITHIN AN EIGHT (8) MONTH PERIOD 32. AHCA re-alleges and incorporates by reference paragraphs one (1) through thirty-one (31) above as if fully set forth herein. 32 33. VENICE REHAB was cited in a survey conducted on February 9-14, 2003 with three (3) Class | deficiencies. [See Exhibits “A” and “B”, attached hereto and incorporated in their entirety by reference herein]. 34. An Order of Immediate Moratorium was issued against Venice Rehab on October 10, 2003 based on the discovery of a condition that was found to constitute an immediate jeopardy and that resulted in the death of one of the facility's residents. [See Exhibit “C’, attached hereto and incorporated in its entirety herein by reference]. 35. VENICE REHAB was cited in a survey conducted on October 9, 2003 with two (2) Class | deficiencies. [See Exhibits “E and “F’, attached hereto and incorporated in their entirety herein by reference]. 36. | VENICE REHAB was cited in the survey conducted on September 8-12, 2003 [the survey that forms the basis for the instant Administrative Complaint] with one (1) Class | deficiency. 37. Section 400.121(3)(d), Florida Statutes (2002) mandates that the agency revoke the license of any nursing home that is cited for two (2) Class | deficiencies arising from separate surveys or investigations within a 30-month period. 38. The revocation of the license of VENICE REHAB is statutorily mandated, since the facility has been cited for six (6) Class |! deficiencies arising from separate surveys or investigations within an eight (8) month period. CLAIM FOR RELIEF WHEREFORE, the Agency respectfully requests the following relief: 1) Make factual and legal findings in favor of the Agency on Count I; 2) Impose a fine in the amount of $25, 000 for the Class | deficiency, together with the mandated fine in the amount of $6,000 for the 6-month survey cycle, for an aggregate fine as to Count | in the amount of $31,000; and 3) Make factual and legal findings in favor of the Agency on Count Il; 33 4) Revoke the license of VENICE REHAB in accordance with the statutory mandate set forth in Section 400.121(3)(d), Florida Statutes (2002); and 5) Assess costs related to the investigation and prosecution of this case pursuant to Section 400.121(10), Florida Statutes (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 (two pages). All requests for hearing shall be made to the attention of AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, MAIL STOP #3, TALLAHASSEE, FL 32308. VENICE REHAB 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 this _/(_~ day of December 2003. 34 DONNA RISELLI Fla. Bar. No. 325821 Counsel for Petitioner Agency for Health Care Administration Building 3, Mail Stop #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 921-5873 (office) (850) 921-9313 (fax) CERTIFICATE OF SERVICE | HEREBY CERTIFY that the original Administrative Complaint and-Exhibit“A" has been sent by U.S. Certified Mail (return receipt # *(000 (53CCOGD SEG] 02), Anthony O. Brunicardi, Administrator, VENICE REHAB AND HEALTH CENTER, 4002 78" Drive East, Sarasota, FL 34234 and that a true and correct copy of the Administrative Complaint and-Exhibit #4" has been sent by U.S. Certified Mail Return Receipt Requested (return receipt # TONO ISSO OCROSLI10329) to Eliezer Scheiner, Registered Agent for VENICE REHAB AND HEALTH CENTER, 7491, West Oakland Park Boulevard, Suite 100, Fort Lauderdale, FL 33319. 35 oan) STATE OF FLORIDA ee AGENCY FOR HEALTH CARE ADMINISTRATION JAN 29 < EXPLANATION OF RIGHTS UNDER SEC. 120.569, FLORI iB Neary In response to the allegations set forth in the Administrative Complaint issued by the Agency for Health Care Administration (‘AHCA” or “Agency”), Respondent must make one of the following elections within twenty-one (21) days from the date of receipt of the Administrative Complaint and your Election of Rights in this matter must be received by AHCA within twenty- one (21) days from the date you receive the Administrative Complaint. Please make your election of the attached Election of Rights form and return it fully executed to the address listed on the form. (To be used with Election of Rights for Administrative Complaint OPTION 1. If Respondent does not dispute the allegations in the Administrative Complaint and Respondent elects to waive the right to be heard, Respondent should select OPTION 1 on the election of rights form. A final order will be entered finding you guilty of the violations charged and imposing the penalty sought in the Complaint. You will be provided a copy of the final order. OPTION 2. _ If Respondent does not dispute any material fact alleged in the Administrative Complaint (Respondent admits all the material facts alleged in the Administrative Complaint.), Respondent may request an informal hearing pursuant to Section 120.57(2), Florida Statutes before the Agency. At the informal hearing, Respondent will be given an opportunity to present both written and oral evidence to reduce the penalty being imposed for the violations set out in the Complaint. For an informal hearing, Respondent should select OPTION 2 on the Election of Rights form. OPTION 3. __ If the Respondent disputes the allegations set forth in the Administrative Complaint (you do not admit them) you may request a formal hearing pursuant to Section 120.57(1), Florida Statutes. To obtain a formal hearing, Respondent should select OPTION 3 on the Election of Rights form. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., Respondent's request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts disputed. IF YOU SELECT OPTION 3, PLEASE CAREFULLY READ THE FOLLOWING PARAGRAPH: In order to preserve the right to a hearing, Respondent’s Election of Rights in this matter must be RECEIVED by AHCA within twenty-one (21) days from the date Respondent receives the Administrative Complaint. If the election of rights form with Respondent’s selected option is not received by AHCA within twenty-one (21) days from the date of Respondent's receipt of the Administrative Complaint, a final order will be issued finding the deficiencies and/or violations charged and imposing the penalty sought in the Complaint. i ! Pe 0 Ts STATE OF FLORIDA 4 AW 2p AGENCY FOR HEALTH CARE ADMINISTRATION ply Py 4: 2 GS is RE: VENICE REHAB AND HEALTH CENTER CASE Ne esas 2 AHCA attorney: Donna Riselli ELECTION OF RIGHTS FOR ADMINISTRATIVE COMPLAINT PLEASE SELECT ONLY 1 OF THE 3 OPTIONS An Explanation of Rights is attached. OPTION ONE (1) ___ Respondent does not dispute the allegations of fact contained in the Administrative Complaint and waives Respondent's right to object or to be heard. Respondent understands that by waiving Respondent's rights, a final order will be issued that adopts the Administrative Complaint and imposes the sanctions sought. OPTION TWO (2) ____ Respondent does not dispute and Respondent admits the allegations of fact in the Administrative Complaint, but Respondent does wish to be afforded an informal proceeding, pursuant to Section 120.57(2), Florida Statutes, at which time Respondent will be permitted to submit oral and/or written evidence to the Agency in mitigation of the penalty imposed. OPTION THREE (3)___ Respondent does dispute the allegations of fact contained in the Administrative Complaint and Respondent requests a formal hearing, pursuant to Section 120.57(1), Florida Statutes, before an Administrative Law Judge appointed by the Division of Administrative Hearings. If Respondent chooses OPTION THREE (3), in order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. Respondent's request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. In order to preserve Respondent’s right to a hearing, Respondent’s Election of Rights in this matter must be received by AHCA within twenty-one (21) days from the date Respondent receives the Administrative Complaint. If the election of rights form with Respondent’s selected option is not received by AHCA within twenty-one (21) days from the date of the Respondent’s receipt of the Administrative Complaint, a final order will be issued finding the deficiencies and/or violations charged and imposing the penalty sought in the Complaint. If Respondent has elected either OPTION TWO (2) or THREE (3) above and _ if Respondent is interested in discussing a settlement of this matter with the Agency, please also mark and check this block. 6 Mediation under Section 120.573, Florida Statutes, is available in this matter if the Agency agrees. SEND NO PAYMENT NOW -- REGARDLESS OF THE OPTION SELECTED, PLEASE WAIT UNTIL RESPONDENT RECEIVES A COPY OF A FINAL ORDER FOR INSTRUCTIONS ON PAYMENT OF ANY FINES. (Please sign and fill in your current address.) Respondent (Licensee) Address: License. No. and facility type: Phone No. PLEASE RETURN YOUR COMPLETED FORM TO: Agency for Health Care Administration, Attention: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg. #3, Mail Stop #3, Tallahassee, FL 32308.

Docket for Case No: 04-000331