& STATE OF FLORIDA 07 J AGENCY FOR HEALTH CARE ADMINISTRATION Y 2g on STATE OF FLORIDA, AO} Soy AGENCY FOR HEALTH CARE Mast Re ADMINISTRATION, e T AUT Ping Petitioner, vs. Case Nos. (Conditional) 2007004962 (Fines) 2007004594 DELTA HEALTH GROUP, INC., d/b/a OAKWOOD GARDEN OF DELAND, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Delta Health Group, Inc., d/b/a Oakwood Garden of Deland (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2006), and alleges: NATURE OF THE ACTION This is an action against a skilled nursing facility to impose an administrative fine of three thousand five hundred dollars ($3,500.00) pursuant to Subsection 400.23(8)(c), Florida Statutes (2006), and to assign conditional licensure status beginning on February 28, 2007, and ending on April 18, 2007, pursuant to Subsection 400.23(7)(b), Florida Statutes (2006), based upon one class II deficiency and one uncorrected class III deficiency. The original certificate for the Respondent’s conditional license is attached as Exhibit A and is incorporated by reference. The original certificate for the Respondent’s standard license is attached as Exhibit B and is incorporated by reference. JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2006). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and 120.60, and Chapters 408, Part II, and 400, Part II, Florida Statutes (2006). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees skilled nursing facilities in Florida and enforces the applicable federal and state statutes, regulations and rules, governing skilled nursing facilities. Ch. 408, Part II, and Ch. 400, Part II, Fla. Stat. (2006); Ch. 59A-4, Fla. Admin. Code. The Agency may deny, suspend, or revoke a license issued to a skilled nursing facility, and impose administrative fines pursuant to Sections 400.121, 400.23, 408.813 and 408.815, Florida Statutes (2006); assign conditional licensure status pursuant to Subsection 400.23(7), Florida Statutes (2006); and assess costs related to the investigation and prosecution of this case pursuant to Section 400.121, Florida Statutes (2006). 5. The Respondent was issued a license by the Agency (License No. 1124095) to operate a 122-bed skilled nursing facility located at 451 South Amelia Avenue, Deland, Florida 32724, and was at all times material times required to comply with the applicable federal and state regulations, statutes and rules. COUNT I The Respondent Failed To Provide Adequate And Appropriate Health Care To Its Residents In Violation of F.S. 400.022(1)@) 6. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 7. All licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the Agency. § 400.022(1)(I), Fla. Stat. (2006). 8. On or about February 28, 2007, the Agency conducted a revisit of the annual relicensure survey of the Respondent and its Facility. 9. Based upon record review, observation and staff interview, the Respondent failed to ensure that its residents received adequate and appropriate health care and services for 2 of 12 sampled residents (Residents #1 and #21). 10. Residents #1 and #21 experienced actual harm because the Respondent failed to provide adequate and appropriate health care and services to them. Resident #1 — Failure to Obtain Urinalysis 11. A review of the medical record for Resident #1 revealed that the Resident’s physician had ordered a urinalysis for the Resident on February 13, 2007. 12. Further investigation revealed the urine sample had not been collected from the Resident as of February 28, 2007. 13. During an interview with the Director of Nursing (DON) on February 28, 2007, at approximately noon, it was revealed a urine sample had not been collected because the Resident was allegedly resisting care and refusing to be catheterized. The DON also stated that the urinalysis was ordered to "rule out" a urinary tract infection (“UTT’). 14.‘ During an interview with the Administrator on February 28, 2007, at 3:00 p.m., it was revealed that she had called the laboratory and was informed that the urine sample ordered on February 13, 2007, had not been received. 15. The Facility’s nurse’s notes dated February 15, 2007, revealed that the Resident was combative with staff and refused supper. 16. The nurses notes dated February 16, 2007, revealed that the Resident had "intermittent agitation and had poor appetite this PM. Holds food in mouth, gags when swallowing." The notes also stated that the Resident's food would be held until evaluated by a doctor or a speech therapist. 17. The nurse’s notes dated February 18, 2007, revealed that the Resident remained agitated with staff and was verbally abusive and threatening to kill them. Poor appetite and combative with incontinent care was also documented in this note. 18. The nurse’s notes dated February 22, 2007, at 2:00 p.m., revealed the Resident had a poor appetite and "seems to gag on puree diet." 19. The nurse’s notes dated February 22, 2007, at 10:00 p.m., revealed that the Resident is tearful and agitated. The notes also state that the Resident continues to gag with swallowing on a puree diet. A request for speech evaluation was made for purposes of resident safety. 20. The nurse’s notes dated February 25, 2007, at 7:00 p.m., revealed that the Resident continues to gag during swallowing and they were awaiting a speech evaluation. 21. During an interview with the DON on February 28, 2007, at approximately 1:00 p.m., it was revealed that these abnormal behaviors could be the result of a UTI. 22. During an interview with the Director of Therapy on February 28, 2007, at approximately 3:00 p.m., it was revealed the Resident had not been evaluated by a speech therapist because such a therapist was not available during this time period. 23. As of February 28, 2007, at approximately 4:30 p.m., the urinalysis had not been completed and therefore the Resident was not diagnosed or treated for a potential UTI. 24. A review of the Medication Administration Record (MAR) revealed that Resident #1 had been ordered a Z-Pack on February 14, 2007, an antibiotic for respiratory infections. 25. Based upon the above, the Respondent failed to appropriately treat the Resident’s urinary tract infection. Resident #1 — Failure To Obtain Dietary Consultation 26. On February 16, 2007, the Resident’s physician ordered: "Dietary to see patient ASAP for aspiration precautions." 27. No dietary consult had been completed for the Resident as of February 28, 2007, however, the Resident's diet had been changed to "clear liquids" on February 25, 2007. 28. The Resident was on a no concentrated sweets puree diet with documented swallowing problems. 29. Clear liquids may be contraindicated for residents at high risk for aspiration pneumonia. Clear liquids are also typically high in concentrated sweets. 30. A review of the clinical documentation revealed that Resident #1 weighed 134 pounds on January 3, 2007, and 123 pounds on February 28, 2007, which is an 8.2% weight loss in less than 60 days. 31. Based upon the above, the Respondent failed to obtain a dietary consultation as ordered and failed to provide the Resident sufficient nutrition and hydration that resulted in the Resident’s significant weight loss. Resident #1 — Multiple Bruising 32. The Facility’s nurse’s notes dated February 13, 2007, revealed that Resident #1 had "multiple bruising noted on all extremities.” 33. During an interview with the DON on February 28, 2007, at approximately 3:00 p.m., it was revealed that the Administrator was unaware of the multiple bruising, but was aware of the bruising "between the resident's legs." 34. The DON could not explain the bruising which was noted on all of the Resident's extremities. 35. Based upon the above, the Respondent failed to assess, evaluate and prevent the Resident’s bruising of an unknown origin. Resident #21 36. Aclinical record review for Resident #21 revealed that the Facility’s nurse’s notes dated February 3, 2007 -- late entry for 11-7 shift, stated that Resident #21 had requested Dilaudid 2 mg at 12:35 a.m. Dilaudid, also known as hydromorphone, is a narcotic pain reliever and is similar to morphine. It is used to treat severe pain. 37. The nurse’s notes stated that Resident #21 was out of Dilaudid and the emergency drug kit did not have any Dilaudid. 38. The nurse’s notes called the pharmacy and was told that the pharmacy computer system was down and it would call back when the computer came back up. 39. The nurse’s notes stated that the pharmacy called back at 2:30 a.m., and requested the Facility to fax it the physician order sheet. 40. The nurse’s notes stated that the physician order sheet was faxed as requested. 41. The nurse’s notes stated the nurse called the pharmacy again at 3:45 a.m., to check on the progress of the Dilaudid order and was informed that the prescription was filled, but that the pharmacy had to wait for a driver to deliver it. 42. According to the nurse’s notes, the Dilaudid arrived at the Facility at 5:35 a.m., five hours after the Resident had requested medication for pain relief. 43. The Respondent’s actions or inactions constitute a class II deficiency in that it 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. 44. _A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned 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. 45. In this instance, the Agency is seeking a fine in the amount of two thousand five hundred dollars ($2,500.00) as an isolated class II deficiency. 46. The Respondent was given a mandatory correction date of March 28, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of two thousand five hundred dollars ($2,500.00). COUNT I The Respondent Failed To Initiate An Investigation And Send The Agency A Report Concerning Any Adverse Incident In Violation of F.S. 400.147(7) 47. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 48. Every skilled nursing facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to assess resident care practices; review facility quality indicators, facility incident reports, deficiencies cited by the agency, and resident grievances; and develop plans of action to correct and respond quickly to identified quality deficiencies. The program must include: (a) A designated person to serve as risk manager, who is responsible for implementation and oversight of the facility's risk management and quality assurance program as required by this section; (b) A risk management and quality assurance committee consisting of the facility risk manager, the administrator, the director of nursing, the medical director, and at least three other members of the facility staff. The risk management and quality assurance committee shall meet at least monthly; (c) Policies and procedures to implement the intemal risk management and quality assurance program, which must include the investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents to residents; and (d) The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence. § 400.147(1)(a)-(d), Fla. Stat. (2006). 49. For purposes of reporting to the agency under this section, the term "adverse incident" means: (a) An event over which facility personnel could exercise control and which is associated in whole or in part with the facility's intervention, rather than the condition for which such intervention occurred, and which results in one of the following: 1. Death; 2. Brain or spinal damage; 3. Permanent disfigurement; 4. Fracture or dislocation of bones or joints; 5. A limitation of neurological, physical, or sensory function; 6. Any condition that required medical attention to which the resident has not given his or her informed consent, including failure to honor advanced directives; or 7. Any condition that required the transfer of the resident, within or outside the facility, to a unit providing a more acute level of care due to the adverse incident, rather than the resident's condition prior to the adverse incident; (b) Abuse, neglect, or exploitation as defined in Section 415.102, Florida Statutes; (c) Abuse, neglect and harm as defined in Section 39.01, Florida Statutes; (d) Resident elopement; or (e) An event that is reported to law enforcement. § 400.147(5), Fla. Stat. (2006). 50. A skilled nursing facility shall initiate an investigation and shall notify the Agency within 1 business day after the risk manager or his or her designee has received a report pursuant to Subsection 400.147(1)(d). The notification must be made in writing and be provided electronically, by facsimile device or overnight mail delivery. The notification must include information regarding the identity of the affected resident, the type of adverse incident, the initiation of an investigation by the facility, and whether the events causing or resulting in the adverse incident represent a potential risk to any other resident. The notification is confidential as provided by law and is not discoverable or admissible in any civil or administrative action, except in disciplinary proceedings by the Agency or the appropriate regulatory board. The Agency may investigate, as it deems appropriate, any such incident and prescribe measures that must or may be taken in response to the incident. The Agency shall review each incident and determine whether it potentially involved conduct by the health care professional who is subject to disciplinary action, in which case the provisions of Section 456.073, Florida Statutes, shall apply. § 400.147(7), Fla. Stat. (2006). 51. Each skilled nursing facility shall complete the investigation and submit an adverse incident report to the Agency for each adverse incident within 15 calendar days after its occurrence. If, after a complete investigation, the risk manager determines that the incident was not an adverse incident as defined in subsection 400.147(5), the facility shall include this information in the report. ... § 400.147(8)(a), Fla. Stat. (2006). 52. Onor about January 26, 2007, the Agency conducted an annual relicensure survey of the Respondent and its Facility. 53. Based upon record review, Facility provided information, and interviews with the Facility’s Risk Manager and Administrator, the Respondent failed to ensure that two adverse incidents were reported to the Agency within one business day for 2 of 20 sampled residents (Resident #16). Resident #16 54. A record review of Resident #16 revealed an 84-year-old resident with diagnoses that included, but were not limited to, a left above-the-knee amputation, Alzheimer’s disease, diabetes, depression and a gastrostomy tube insertion (a gastrostomy feeding tube insertion is the placement of a feeding tube through the skin and the stomach wall, directly into the stomach). 55. The Facility’s nursing documentation dated May 9, 2006, stated "patient sitting in Gerri chair - reclined back, foot lodged on broken protrusion on side of chair; 2 inch laceration to right anterior foot." 56. Resident #16 was transferred to the hospital to obtain medical care and treatment of the laceration. 57. The Resident’s laceration developed into a Methicillin-Resistant Staphylococcus Aureus (“MRSA”) infection. A MRSA infection is an infection with a strain of Staphylococcus aureus bacteria that is resistant to certain antibiotics known as beta-lactams. These antibiotics include methicillin, amoxicillin and penicillin. 58. Resident #16 was referred to and saw an infectious disease specialist for further medical care and treatment. 59. An occurrence report was completed by the staff and sent to the Respondent’s Risk Manager. ‘ 60. The above-referenced event concerning the Resident constituted an adverse incident as defined by Section 400.147(5), Florida Statutes (2006). 61. During an interview on January 25, 2007, at approximately 10:15 a.m., the Risk Manager revealed that she investigated the incident and decided that it was an improper transfer and pushing of the chair back. 62. The Risk Manager stated a 1-day adverse incident report was not provided to the Agency. She further stated "rethinking the incident, a report should have been sent." Abused Resident 63. A review of the Facility’s grievances on January 25, 2007, revealed a grievance dated April 3, 2006, alleging that a resident who has trouble using his or her hands was not being helped with their meals. 64. ‘The grievance further stated that a Certified Nurse Assistant (“CNA”) threw the Resident’s call light away from the Resident where the Resident could not reach it. 65. A review of the Facility's policy and procedures for, preventing abuse revealed that all allegations of abuse will be investigated and reported. 66. There was no evidence that this grievance allegation was investigated or reported to the appropriate agencies. 67. There was no evidence that the alleged perpetrator was prevented from working with residents after the allegation was made. 11 68. During an interview on January 25, 2006, at approximately 11:10 a.m., the Administrator stated that she thought these two grievances may have been about the same incident, but she was not sure. 69. She also stated that the investigation, reporting and suspending of the alleged perpetrator was not done until April 10, 2006. 70. The above-referenced event concerning the Resident constituted an adverse incident as defined by Section 400.147(5), Florida Statutes (2006). 7i. | The Respondent did not provide the Agency a 1-day adverse incident report as required by law. 72. The Respondents action or inactions constituted a class [II deficiency in that it would have resulted in no more than minimal physical, mental, or psychosocial discomfort to the resident or had 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. 73. The Agency cited the Respondent for a class III deficiency as set forth in section 400.23(8)(c), Florida Statutes (2006). 74. | The Respondent was given a mandatory correction date of February 26, 2007. 75. On or about February 28, 2007, the Agency conducted a revisit to the annual relicensure survey of the Respondent and its Facility. 76. Based on record review, Facility provided information and interviews with the Risk Manager and the Director of Nurses, the Respondent failed to ensure that an adverse incident was reported to the Agency for 1 of 12 sampled residents (Resident #16). 77. The Agency re-alleges and incorporates by reference paragraphs 54 through 62. 78. During an interview with the Risk Manager on February 28, 2007, it was revealed that she had still not sent an adverse incident report to the Agency concerning Resident #16. She also stated she had not had any adverse incidents since the survey. 79. The Respondents action or inactions constituted a class III deficiency in that it would have resulted in no more than minimal physical, mental, or psychosocial discomfort to the resident or had 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. 80. The Agency cited the Respondent for a class III deficiency as set forth in section 400.23(8)(c), Florida Statutes (2006). 81. The Respondent’s actions or inactions constituted an uncorrected class III deficiency pursuant to section 400.23(8)(c), Florida Statutes (2006). 82. 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. 83. In this instance, the Agency is seeking a fine in the amount of one thousand dollars ($1,000.00) as an isolated class III deficiency. 84. | The Respondent was given a mandatory correction date of March 28, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of one thousand dollars ($1,000.00). COUNT III Assignment of Conditional Licensure Status Pursuant to F.S. 400.023(7)(b) 85. The Agency re-alleges and incorporates by reference paragraphs 1-5. 86. | The Agency re-alleges and incorporates by reference the allegations in Counts I and II. 87. The Agency is authorized to assign conditional licensure status to skilled nursing facilities pursuant to section 400.23(7), Florida Statutes (2006). 88. Due to the presence of one class II and one uncorrected class III deficiency, the Respondent was not in substantial compliance at the time of the survey with criteria established under Chapter 400, Part II, Florida Statutes (2006), or the rules adopted by the Agency. 89. 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 II, or class III deficiencies at the time of the follow-up survey, a standard licensure status may be assigned. 90. The Agency assigned the Respondent conditional licensure status with an action effective date of February 28, 2007. Exhibit A. 91. The Agency assigned the Respondent standard licensure status with an action effective date of April 18, 2007. Exhibit B. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the Respondent conditional licensure status for the period between the assignment of the conditional license and the assignment of the standard license pursuant to Section 400.23(7), Florida Statutes (2006). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, 14 respectfully requests the Court to enter a final order granting the following relief against the Respondent as follows: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the total amount of three thousand five hundred dollars ($3,500.00). 3. Assign conditional licensure status to the Respondent for the period beginning on February 28, 2007, and ending on April 18, 2007. 4. Assess costs related to the investigation and prose Thomas M. Hoeler, énior Attorney Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel The Sebring Building, Suite 330 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 922-5873. 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and the Election of Rights form were served to: Gail E. Norman, Administrator, Oakwood Garden of Deland, 451 South Amelia Avenue, Deland, Florida 32720, by U.S. Certified Mail, Return Receipt No. 7004 1350 0004 2776 1175; and Kimberly A. ww, 7] esAgent, Delta Health ertified Mail, Return Group, Inc., 2 North Palafox Street, Pensacola, Florida oD Thomas M. Hoeler, Sen#6r Attorney Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel The Sebring Building, Suite 330 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 Copies furnished to: Gail E. Norman, Administrator Oakwood Garden of Deland 451 South Amelia Avenue Thomas M. Hoeler, Senior Attorney Agency for Health Care Administration Office of the General Counsel Deland, Florida 32720 The Sebring Building, Suite 330 (U.S. Certified Mail) 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (Interoffice Mail) Kimberly A. Seith, Registered Agent Nancy K. Marsh, R.N. Delta Health Group, Inc. Field Office Manager 2 North Palafox Street Agency for Health Care Administration Pensacola, Florida 32502 Building A, Suite 115 (U.S. Certified Mail) 921 North Davis Street Jacksonville, Florida 32209 (US. Mail)

Docket for Case No: 07-003471