STATE OF FLORIDA OTT meg AGENCY FOR HEALTH CARE ADMINISTRATION =f AOD ied —_ ° Pi 4 29 AGENCY FOR HEALTH CARE ee . ADMINISTRATION, sel, - Petitioner, vs. Case No. 2005001085 (Fines) Case No. 2005001086 (Cond. Lic.) PERRY HEALTH CARE TG ASSOCIATES, LLC, CS ASTY d/b/a MARSHALL HEALTH AND REHABILITATION, Respondent. _ ADMINISTRATIVE COMPLAINT The AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA”), by and through the undersigned counsel, files this Administrative Complaint against PERRY HEALTH CARE ASSOCIATES, LLC, d/bfa MARSHALL HEALTH AND REHABILITATION (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2004), and alleges: NATURE OF THE ACTION 1. This is an action against Respondent nursing home to (1) impose administrative fines in the total amount of $5,500 (Case No. 2005001085); and (2) assign a conditional licensure status commencing January 5, 2005 and expiring November 30, 2005 (Case No. 2005001 086), pursuant to the various citations, statutes, and rules cited in each of the two counts below. Page 1 of 12 2. In summary, Respondent was cited as follows: December 16, 2004 recertification survey. Respondent was cited for a Class Til violation. January 5, 2005 focused appraisal visit survey. Respondent was cited for a Class II violation. January 19, 2005 follow-up to recertification survey. Respondent was cited for an uncorrected Class III violation. JURISDICTION AND VENUE JNO see 3. This tribunal has jurisdiction over Respondent, pursuant to Sections 120.569 and 120.57, Florida Statutes (2004). 4, Venue shall be determined, pursuant to Chapter 28-106.207, Florida Administrative Code (2004). PARTIES 5. Pursuant to Chapter 400, Part I], Florida Statutes (2004), and Chapter 59A-4, Florida Administrative Code (2004), AHCA is the licensing and enforcing authority with regard to nursing facility laws and rules. 6. The Respondent is a nursing facility located at 207 Marshall Drive, Perry, Florida 32347. The Respondent is and was at all times material hereto a licensed nursing facility under Chapter 400, Part Il, Florida Statutes (2004), and Chapter 59A-4, Florida Administrative Code (2004), having been issued license number 1436096. COUNT I(F 371) Respondent failed to store, prepare and distribute food under sanitary conditions to prevent the possible spread of food borne illness and food contamination. § 400.23(8)(c), Fla. Stat. 42 C.F.R. 483.35(h)(2) 7. AHCA re-alleges paragraphs 1-6 above. Page 2 of 12 8. On or about December 16, 2004, AHCA conducted an unannounced recertification survey at Respondent’s facility. AHCA cited Respondent for failing to store, prepare and distribute food under sanitary conditions to prevent the possible spread of food borne illness and food contamination, based on the following findings: a) b) ) 9. An observation of the kitchen was conducted on 12/13/04 at 10:30 a.m., which revealed one of five foodservice workers improperly wearing a hairnet leaving hair braids uncovered while preparing food. In the dry storage area plastic utensils were stored in a cardboard box that was uncovered, leaving the utensils exposed to air. The utensils, specifically spoons, were noted to have dirt in and on them. A three compartment plastic plate that was stored with clean plates was noted to have dried on food particles. A china plate that was stored with clean plates was noted to have dried on food particles. In the walk in cooler, raw bacon was observed improperly stored in a manner that would not prevent the spreading of food bome illness, as it was stored in a cardboard box on a shelf above a cardboard box containing vegetables. In an interview conducted with the dietary manager on 12/ 13/04 at 11:45 a.m., she acknowledged the dirty plates, improperly stored food, and uncovered plastic utensils. Additional observations made on 12/14/04 at 11:35 a.m. revealed one of five foodservice workers improperly wearing a haimet leaving hair braids uncovered while distributing food. In the dry storage area plastic utensils remained stored in a cardboard box that was uncovered, leaving the utensils exposed to air. The utensils, specifically spoons, were again noted to have dirt on them. In the cooler, raw bacon remained improperly stored in a manner that would not prevent the spreading of food bore illness, as it was stored in a cardboard box on a shelf above a cardboard box containing vegetables. Respondent failed to store, prepare and distribute food under sanitary conditions to prevent the possible spread of food borne illness and food contamination, as required by Rule 42 C.F.R. 483.35(h)(2), Code of Federal Regulations, which provides, in pertinent part, as follows: “TITLE 42 -- PUBLIC HEALTH...Part 483 -- REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES--...Sec 483.35 Dietary services...(h) Sanitary conditions. The facility must-- ...(2) Store, prepare, distribute, and serve food under sanitary conditions; and” 42 C.F.R. 483.35(h)(2) 10. The foregoing violation constitutes a Class IIT violation due to the nature of the violation and the gravity of its effect on the residents of the facility pursuant to Section 400.23(8)(c), Florida Statutes which provides: Page 3 of 12 “(c) A class III deficiency is a deficiency that the agency determines will result im 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 practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for _a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class Il deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual - ——inspection. A citation for a class Hil deficiency must specify the time within which the deficiency is required to be corrected. If a class I] deficiency is corrected within the time specified, no civil penalty shall be imposed.” (emphasis added) 11. On January 19, 2005, AHCA conducted a follow-up to unannounced recertification survey at Respondent’s facility. AHCA cited Respondent for an uncorrected deficiency in that Respondent failed to ensure the proper storage of food to prevent contamination and/or prevent the spread of food borne illness and to ensure baking pans were dry prior to storing in order to prevent bacterial growth, based on the following findings: a) Observation made of the kitchen at 10:00 a.m. on 1/19/05 revealed wet nesting baking pans under the tray line steam table, and exposed food items including cheese and chicken in the walk in cooler. After discovering the wet nesting baking pans and exposed food in the walk in cooler a second surveyor was asked to confirm the findings, which were confirmed at approximately 10:15 a.m. on 01/19/05. b) During an interview with kitchen staff at approximately 10:10 a.m. on 01/19/05 the kitchen staff confirmed there were wet nesting baking pans under the steam table of the tray line and stated, "It is just where the steam table leaks." c) Additional observations were made of the kitchen by this writer and a second surveyor at approximately 1:50 p.m. on 01/19/05 which revealed raw chicken in a cardboard box that was uncovered and exposed to air, raw turkey in a cardboard box that was uncovered and exposed to air and raw fish that was in a cardboard box uncovered and exposed to air. These food items were in the walk- in cooler. Observations of the walk-in freezer by this writer and a second surveyor revealed frozen pancakes in a cardboard box uncovered and exposed to air and having freezer burn on them, frozen hash browns in a cardboard box uncovered and exposed to air and having freezer burn on them and frozen chicken drumsticks in a cardboard box uncovered and exposed to air with freezer burn on them. Observations of the tray line revealed the pans that were wet nesting under the steam table on the prior observation at 10:00 a.m. had indeed been moved to a dry storage area but the baking pans continued to be wet and dirty when being stored. Page 4 of 12 d) During an interview with the Administrator and the Regional Vice President of Seacrest Nursing Homes both were asked to join this writer and the second surveyor and observe the exposed food items and wet nesting dishes on 01/19/05 at approximately 2:00 p.m. The Administrator and Regional Vice President did make observations of the kitchen at approximately 2:05 p.m. on 01/19/05 and confirmed this writer and the second surveyor's findings. 12. The foregoing violation constitutes an uncorrected Class III violation pursuant to Section 400.23(8)(c), Florida Statutes (quoted above), due to the nature of the violation and the gravity of its effect on the residents and warrants (1) a fine of $3,000; and (2) the assignment of a conditional licensure status, pursuant to Section 400.23(7)(b), Florida Statutes, which provides: “400.23 Rules; evaluation and deficiencies; licensure status.—...(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home...(b) A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class Il, or class IH deficiencies at the time of the follow-up survey, a standard licensure status may be assigned.” § 400.23(7)(b), Fla. Stat. 13. AHCA, in determining the penalty imposed, considered the gravity of the violation, the probability that death or serious harm will result, the uncorrected actions of Respondent and its staff, the financial benefit to the facility of committing or continuing the violation, and the licensed capacity of the facility. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count; 2. Uphold the imposition of conditional licensure status commencing January 5, 2005 and expiring November 30, 2005; 3. Impose a fine in the amount of $3,000 for the referenced violation; and Page 5 of 12 4. Impose such other relief as this tribunal may find appropriate. COUNT II (F 322) Respondent failed to ensure that a resident who was fed by a naso-gastric or gastrostomy tube received appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal- pharyngeal ulcers and to restore, if possible, normal eating skills. § 400.23(8)(b), Fla. Stat. 42 C.F.R. 483.25(g)(2) 14. AHCA re-alleges paragraphs 1-6 above. 15. On January 5, 2005, AHCA conducted a focused appraisal visit survey at Respondent’s facility. AHCA cited Respondent for failing to ensure that 3 of 13 residents who receive nutrition and hydration through a gastrostomy tube (Residents #1, #2, and #3) received the correct volume of feeding, the correct rate of feeding and correct product. This resulted in resident #1 needing to be transferred to the hospital for treatment of respiratory congestion and elevated temperature. The foregoing is based on the following findings: a) Review of the record for resident #1 revealed a nurse's note dated 12/30/04 that stated: At 6:15 (AM) discovered feeding pump running at 295 cc's/hr. Pump turned off, RN notified and called Dr. At 7:30 AM resident #1 was noted to be in acute respiratory distress as manifested by an elevated temperature of 101.1, pulse was 123, respirations were 32 and blood pressure was 191/91. At 7:40 AM an order was received to transport resident #1 to the emergency room for evaluation. At 8:15 AM resident #1 was transported via ambulance stretcher to the hospital. Resident #1 retumed to the facility at 12 noon on 12/30/04 with orders for the antibiotic Levaquin 500 mg daily for 10 days and albutero! nebulizer treatments every 4 hours. The diagnosis listed on the carbon copy of the emergency room report was aspiration pneumonia. Review of the current tube feeding orders for resident #1 revealed the resident was to receive Diabetic Resource at 60cc/hr for 16 hours. Review of the current medication administration record (MAR) revealed the tube feeding was to be turned on at 4 PM and turned off at 8 AM. Interview with the Director of Nursing (DON) and Risk Manager at approximately 1:30 on 1/5/05 revealed the following: The time the feeding pump Page 6 of 12 volume was turned up from 60 cc'/hr to 295 ce's/hr is unknown. The night nurse left at 6 AM. The DON stated the day nurse found the pump running at 295Scc's when she was making rounds at 6:15 AM. How much tube feeding was infused at the high rate was also unknown. The DON stated "I was told all of it”. Diabetic Resource is pre-packaged in a 1000cc bottle. 1000cc's of tube feeding product running at 60 cc's/hr would infuse in approximately 16.6 hours. 1000cc's running at 295 cc's/hr would infuse in approximately 3.3 hours. k manager stated she met with the night nurse and reviewed. No other licensed staff was in-serviced he feeding pump as of Following the incident, the Ris the tube feeding protocol was on either-the-tube feeding protocol or proper use of tl 1/5/05. Interview with the staff development coordinator at approximately 12:30 PM on 1/5/05 revealed a new clinical skills review tool, which includes feeding tube care, and enteral administration was implemented in October 2004 for all new hires. Review of the training records for the nurse involved in the incident with resident #1 who was hired 9/19/02 revealed no evidence of clinical skills review or ongoing training in the care and management of feeding tubes. b) Observations of resident #2 at approximately 10:15 AM on 1/5/05 revealed the resident was in bed with the head of the bed elevated Novasource Pulmonary was infusing via pump at 65 cc's/hr. Review of the current physician orders revealed the feeding rate should be 60cc's/hr. c) Observations of resident #3 at approximately 10:20 AM on 1/5/05 revealed Fibersource HN (High Nitrogen) infusing at 65 cc's/hr. Review of the current physician orders revealed resident should be receiving plain Fibersource. 16. | Respondent failed to ensure that a resident who was fed by a naso-gastric or gastrostomy tube received appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal- pharyngeal ulcers and to restore, if possible, normal eating skills, as required by Rule 42 CER. 483.25(2g)(2), Code of Federal Regulations, which provides, in pertinent part, as follows: “TITLE 42 -- PUBLIC HEALTH...Part 483 -- REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES--...Sec 483.25 Quality of Care...(g) Naso-gastric tubes. Based on the comprehensive assessment of a resident, the facility must ensure that-- ...(2) A resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal- pharyngeal _ ulcers and to restore, if possible, normal eating skills.” 42 CFR. 483.25(g)(2) Page 7 of 12 17. The foregoing violation constitutes a Class II violation pursuant to Section 400.23(8)(b), Florida Statutes (quoted next), due to the nature of the violation and the gravity of its effect on the residents and warrants: (1) a fine of $2,500; and (2) the assignment of a conditional licensure status, pursuant to Section 400.23(7)(b), Florida Statutes (quoted above). “(b) A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a pattemed deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency.” 18. | AHCA, in determining the penalty imposed, considered the gravity of the violation, the probability that death or serious harm will result, the uncorrected actions of Respondent and its staff, the financial benefit to the facility of committing or continuing the violation, and the licensed capacity of the facility. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count, 2. Uphold the imposition of conditional licensure status commencing January 5, 2005 and expiring November 30, 2005; 3. Impose a fine in the amount of $2,500 for the referenced violation; and 4. Impose such other relief as this tribunal may find appropriate. Page 8 of 12 DISPLAY OF LICENSE 19. Until a subsequent standard license is issued, Respondent is required to post its conditional license in a prominent place that is clear and unobstructed public view at or near the place where residents are being admitted to facility pursuant to Section 400.23(7)(d) and (e), Florida Statutes, which reads as follows: “400.23 Rules; evaluation and deficiencies; licensure status.—...(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home...(d) The current licensure status of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional licensure status for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval. (e) Each licensee shall post its license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility” 20. The following licenses are attached hereto as follows: Exhibit “A”: Conditional License Certificate # 12307 with an effective date of January 5, 2005 and expiring November 30, 2005. NOTICE Respondent, PERRY HEALTH CARE ASSOCIATES, LLC, d/b/a MARSHALL HEALTH & REHABILITATION CENTER, 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 Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, 2727 Mahan Dr., Bldg. 3, MSC 3, Tallahassee, Florida, 32308; Attention: Agency Clerk. Page 9 of 12 RESPONDENT IS FURTHER NOTIFIED THAT IF THE REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED. ee Submitted on this A day of Aacbks 2005, Tmt Bb. Clb he Senior Attorney Fla. Bar No. 210536 Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, MSC #3 Tallahassee, Florida 32308 Phone: (850) 922-5873 Fax: (850) 921-0158 or 413-9313 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the original Administrative Complaint, Explanation of Rights form, and Election of Rights forms have been sent by U.S. Certified Mail, Return Receipt Requested (receipt # 7004 1160 0003 3739 7562) to Marshall Health & Rehabilitation Center, Attention: Administrator, 207 Marshal! Drive, Perry, Florida 32347. Submitted on this og day of SD arch, 2005. Lirctt 6B. (Lat Timothy B. Elfott, Senior Attorney Agency for Health Care Administration Page 10 of 12 EXPLANATION OF RIGHTS UNDER SEC. 120.569, FLORIDA STATUTES (To be used with the attached Election of Rights form) 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 on the attached Election of Rights form and return it fully executed to the address listed on the form. 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. Page 1] of 12 STATE OF FLORIDA of AGENCY FOR HEALTH CARE ADMINISTRATION May ee Ap 5 RE: Marshall Health and Rehabilitation Center Case No. 2005001085/ nso Py, 4:9 38 ELECTION OF RIGHTS FOR ADMINISTRATIVE HEARING PLEASE SELECT ONLY 1 OF THE 3 OPTIONS (An Explanation of Rights form is attached) OPTION ONE (1) 0 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) co 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. If you select Option 3, mediation may be available in this case pursuant to Section 120.573, Florida Statutes, if the Agency agrees to it. 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. o Mediation under Section 120.573, Florida Statutes, is not available in this matter. 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, Office of the General Counsel, Attention: Agency Clerk, 2727 Mahan Drive, Building 3, Mai] Stop #3, Tallahassee, Florida 32308. Telephone Number: 850-921-8177; FAX 850-921-0158; TDD 1-800-955-8771. Page 12 of 12

Docket for Case No: 05-001519