STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA AGENCY FOR O¥- 150 HEALTH CARE ADMINISTRATION, Petitioner, vs. Case Nos. 2008001931 2008001933 CLEARVIEW MANOR, INC. d/b/a 2008001934 CLEARVIEW MANOR, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (the “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against CLEARVIEW MANOR, INC., d/b/a CLEARVIEW MANOR (“Clearview”), pursuant to Sections 120.569, and 120.57, Florida Statutes (2007), and alleges: NATURE OF THE ACTION 1. This is an action to revoke Clearview's license to operate an assisted living facility and to impose an administrative fine in the amount of six thousand dollars ($6,000.00) and a survey fee of five hundred dollars ($500.00), or such other and further relief as this tribunal deems just. This action is based upon six (6) uncorrected State Class III deficiencies pursuant to Section 429.19(2)(c), Florida Statutes (2007). The six (6) satisfy the requirement for revocation as “[f]ive or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified” under Section 429.14(1) (e)3, Statutes (2007). Additionally, and as a separate ground for revocation, two of the six together with prior violations constitute a “demonstrated pattern of deficient performance” for revocation under Section 408.815(1) (d), Florida Statutes (2007). Additionally, and as a separate ground for revocation, one of the six together with prior violations constitutes “[a]n intentional or negligent act materially affecting the health or safety of a client of the provider” under Section 408.815(1) (b), Florida Statutes (2007), allowing revocation. Additionally, and as a separate ground for revocation, one of the six together with prior violations constitutes a second “determination... that the facility is retaining an employee subject to level 1 background screening standards under s. 429.174 who does not meet the screening standards of s. 435.03 and for whom exemptions from disqualification have not been provided by the agency,” subjecting Respondent facility to license revocation under Section 429.14(1)(f), Florida Statutes (2007). Additionally, and as a separate ground for revocation, the administrator intentionally and with the purpose of inducing the Agency’s reliance on the statement, and knowing the statement to be false, misrepresented to the Agency surveyor “action taken to correct a violation” for purposes of Section 429.19(5), Florida Statutes (2007), subjecting Respondent facility to license revocation under Section 429.19(5), Florida Statutes (2007). JURISDICTION AND VENUE 2. The Agency has jurisdiction pursuant to §§ 20.42, 120.60 and Chapters 408, Part II, and 429, Part I, Florida Statutes (2007). 3. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 4. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable regulations, state statutes and rules governing assisted living facilities pursuant to Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. 5. Clearview operates a 15-bed assisted living facility located at 1080 South Clearview Avenue, Tampa, Hillsborough County, Florida 33629, and is licensed as an assisted living facility with a limited mental health license, license number 9643. 6. At all times material to the allegations of this complaint, Clearview was a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I 7. The Agency re-alleges and incorporates paragraphs 1 through 5, as if fully set forth in this count. 8. Rule 58A-5.019(4) (b), Florida Administrative Code, requires: (bo) Notwithstanding the minimum staffing requirements specified in paragraph (a), all facilities, including those composed of apartments, shall have enough qualified staff to provide resident supervision, and to provide or arrange for resident services in accordance with the residents’ scheduled and unscheduled service needs, resident contracts, and resident care standards as described in Rule 58A- 5.0182, F.A.C. 9. Rule 58A-5.0182, Florida Administrative Code, requires: An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional wellbeing of the individual. (c) General awareness of the resident's whereabouts. The resident may travel independently in the community. (d) Contacting the resident's health care provider and other appropriate party such as the resident's family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident's family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in subsection 58A- 5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. 10. Rule 58A-5.0131(33), Florida Administrative Code, defines: (33) "Significant change" means a sudden or major shift in behavior or mood, or a deterioration in heaith status such as unplanned weight change, stroke, heart condition, or stage 2, 3, or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term illness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes. 11. In order to provide the required resident supervision, the rules further provide: 11.1. Rule 58A-5.019(2) (b) and (c), Florida Administrative Code, require: (b) All staff shall be assigned duties consistent with his/her level of education, training, preparation, and experience. Staff providing services requiring licensing or certification must be appropriately licensed or certified. All staff shall exercise their responsibilities, consistent with their qualifications, to observe residents, to document observations on the appropriate resident's record, and to report the observations to the resident's health care provider in accordance with this rule chapter. (c) All staff must comply with the training requirements of Rule 58A-5.0191, F.A.C. 11.2. Rule 58A-5.0191(2), Florida Administrative Code, requires: (2) STAFF IN-SERVICE TRAINING. Facility administrators or managers shall provide or arrange for the following in-service training to facility staff: (a) Staff who provide direct care to residents, other than nurses, certified nursing assistants, or home health aides trained in accordance with Rule 59A- 8.0095, F.A.C., must receive a minimum of one (1) hour in-service training in infection control, including universal precautions, and facility sanitation procedures before providing personal care to residents. Documentation of compliance with the staff training requirements of 29 C.F.R. § 1910.1030, relating to blood borne pathogens, may be used to meet this requirement. (b) Staff who provide direct care to residents must receive a minimum of one (1) hour in-service training within thirty (30) days of employment that covers the following subjects: 1. Reporting major incidents. 2. Reporting adverse incidents. 3. Facility emergency procedures including chain-of- command and staff roles relating to emergency evacuation. (c) Staff who provide direct care to residents, who have not taken the core training program, shall receive a minimum of one (1) hour in-service training within thirty (30) days of employment that covers the following subjects: 1. Resident rights in an assisted living facility. 2. Recognizing and reporting resident abuse, neglect, and exploitation. (d) Staff who provide direct care to residents, other than nurses, CNAs, or home health aides trained in accordance with Rule 59A-8.0095, F.A.C., must receive three (3) hours of in-service training within thirty (30) days of employment that covers the following subjects: 1. Resident behavior and needs. 2. Providing assistance with the activities of daily living. (e) Staff who prepare or serve food, who have not taken the assisted living facility core training must receive a minimum of one (1) hour in-service training within thirty (30) days of employment in safe food handling practices. 11.3. Rule 58A-5.0191(5), Florida Administrative Code, requires: (5) ASSISTANCE WITH SELF-ADMINISTERED MEDICATION AND MEDICATION MANAGEMENT. Uniicensed persons who will be providing assistance with self-administered . medications as described in Rule 58A-5.0185, F.A.C., must receive a minimum of four (4) hours of training prior to assuming this responsibility. Courses provided in fulfillment of this requirement must meet the following criteria: (a) Training must cover state law and rule requirements with respect to the supervision, assistance, administration, and management of medications in assisted living facilities; procedures and techniques for assisting the resident with self- administration of medication including how to read a prescription label; providing the right medications to the right resident; common medications; the importance of taking medications as prescribed; recognition of side effects and adverse reactions and procedures to follow when residents appear to be experiencing side effects and adverse reactions; documentation and record keeping; and medication storage and disposal. Training shall include demonstrations of proper techniques and provide opportunities for hands-on learning through practice exercises. (bo) The training must be provided by a registered nurse or licensed pharmacist who shall issue a training certificate to a trainee who demonstrates an ability to: 1. Read and understand a prescription label; 2. Provide assistance with self-administration in accordance with Section 429.256, F.S., and Rule 58A- 5.0185, F.A.C., including: a. Assist with oral dosage forms, topical dosage forms, and topical ophthalmic, otic and nasal dosage forms; : b. Measure liquid medications, break scored tablets, and crush tablets in accordance with prescription directions; c. Recognize the need to obtain clarification of an "as needed" prescription order; d. Recognize a medication order which requires judgment or discretion, and to advise the resident, resident's health care provider or facility employer of inability to assist in the administration of such orders; e. Complete a medication observation record; f£. Retrieve and store medication; and g. Recognize the general signs of adverse reactions to medications and report such reactions. (c) Unlicensed persons, as defined in Section 429.256(1) (b), F.S., who provide assistance with self- administered medications and have successfully completed the initial four (4) hour training, must obtain, annually, a minimum of two (2) hours of continuing education training on providing assistance with self-administered medications and safe medication practices in an assisted living facility. The two (2) hours of continuing education training shall only be provided by a licensed registered nurse, or a licensed pharmacist. 11.4. Rule 58A-5.024(2) (a)1., Florida Administrative Code, requires: The facility shall maintain the following written records in a form, place and system ordinarily employed in good business practice and accessible to Department of Elder Affairs and Agency staff. (2) STAFF RECORDS. (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition, records shall contain the following, as applicable: 1. Documentation of compliance with all staff training required by Rule 58A-5.0191, F.A.C.; 12. On October 5, 2007, the Agency completed a Complaint Survey (CCR #2007011225) of the Clearview facility. 12.1. Based on employee file review and staff interview, Clearview failed to complete all training required by applicable law for one of two employees reviewed regarding lack of training for Activities of Daily Living (ADL's); reporting of major incidents; reporting adverse incidents; emergency procedures; resident rights; reporting abuse, neglect and exploitation; medication training; and HIV training. Failure to have trained staff at the Clearview facility is failure to have “enough qualified staff to provide resident supervision, and to provide or arrange for resident services in accordance with the residents’ scheduled and unscheduled service needs, resident contracts, and resident care standards as described in Rule 58A-5.0182, F.A.C.” Rule 58A- 5.019(4) (bo), Florida Administrative Code. 12.2. Review of the employee files on 10/5/2007 for two employees revealed that one employee is not qualified to meet the needs of residents. The employee’s lack of training was in the following areas: Activities of Daily Living (ADL's) Reporting of major incidents Resident rights Reporting of abuse, neglect, and exploitation Medication training 12.3. Further review of the employee file and interview with the administrator indicated that the employee has been providing direct care services to residents for over three months starting in July of 2007. 12.4. In an interview with the administrator of Clearview at approximately 3:45 p.m., the administrator stated he did not follow-up with the training areas listed in paragraph 11.2, above,.and did not know there was a time limit in which the training was to be completed. 12.5. The Agency determined that this deficient practice of not having enough trained staff to meet the needs of residents was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Clearview for a State Class III deficiency. 12.6. The Agency provided Clearview with a mandatory correction date of November 5, 2007. 13. On January 22, 2008, the Agency conducted a follow-up survey to Complaint Survey CCR #2007011225. 13.1. Based on employee file review and staff interview, Clearview failed to complete all training necessary by state requirements for two of three employees whose files were reviewed, employees #2 and #3, regarding lack of training for Activities of Daily Living (ADL's), reporting of major incidents, reporting adverse incidents, emergency procedures, resident rights, reporting abuse, neglect and exploitation, and HIV training. 13.2. A Review of employee #2's file on 1/22/2008 revealed this employee had a date of hire of 11/19/07. Interview with employee #3 on 1/22/08 at approximately 9:30 10 a.m. revealed that employee #3 was a previous employee at the Clearview facility but had most recently returned to employment at the facility on 11/1/07. Both employee’s files contained no documentation of required training in the following areas: Activities of Daily Living (ADL's) Reporting of major incidents Resident rights Reporting of abuse, neglect, and exploitation Emergency procedures HIV training Reporting of adverse incidents 13.3. In an interview with the administrator on 1/22/08 at approximately 10:15 a.m., the administrator stated that the administrator had provided the needed training but did not have the documentation present in the facility. The administrator left the facility on 1/22/08 at 10:22 a.m. to retrieve some paperwork. 13.4. While the administrator was out of the facility, at 10:45 a.m. on 1/22/08, employee #3 was interviewed by the Agency surveyor relating to the in-services training listed in paragraph 12.2, above. Employee #3 stated that he had not had the in~services training and would like to have the training. 13.5. The administrator returned to the facility on 1/22/08 at 10:55 a.m. with paperwork indicating that he had provided the required in-service training to both employee 11 #2 and employee #3 on December 3, 2007. These documents were not signed by the employees. These documents were not accepted due to the lack of signatures, employee #3's interview, and the failure to maintain complete employee files on the facility property. 14. The Agency determined that this deficient practice of failing to have qualified and trained staff on the Clearview premises was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent for an uncorrected State Class III deficiency. 15. Section 429.19(5), Florida Statutes (2007), provides: (5) Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through followup visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated facility, revoke or deny a facility's license when a facility administrator fraudulently misrepresents action taken to correct a violation. 16. When the administrator on 1/22/08 at approximately 10:15 a.m., stated to the Agency surveyor that the administrator had provided the needed training to employee #3, the administrator intentionally and with the purpose of inducing reliance on the statement, and knowing the statement to be false, misrepresented to the Agency surveyor “action taken to correct a violation” for purposes of Section 429.19(5), Florida 12 Statutes (2007). 17. The Agency provided Clearview with a mandatory correction date of February 22, 2008. 18. The October 5, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2) (c), Florida Statutes (2007). COUNT IT 19. The Agency re-alleges and incorporates paragraphs 1 through 5, as if fully set forth in this count. 20. Pursuant to Florida law, an assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Rule 58A- 5.0182, Florida Administrative Code. Specifically, with regard to the administration of medication, Rule 58A-5.0185(3), (4), and (5), Florida Administrative Code, provide: (3) ASSISTANCE WITH SELF-ADMINISTRATION. (a) For facilities which provide assistance with self- administered medication, either: a nurse; or an unlicensed staff member, who is at least 18 years old, trained to assist with self-administered medication in accordance with Rule 58A-5.0191, F.A.C., and able to demonstrate to the administrator the ability to 13 accurately read and interpret a prescription label, must be available to assist residents with self- administered medications in accordance with procedures described in Section 429.256, F.S. (b) Assistance with self-administration of medication includes verbally prompting a resident to take medications as prescribed, retrieving and opening a properly labeled medication container, and providing assistance as specified in Section 429.256(3), F.S. In order to facilitate assistance with self- administration, staff may prepare and make available such items as water, juice, cups, and spoons. Staff may also return unused doses to the medication container. Medication, which appears to have been contaminated, shall not be returned to the container. (c) Staff shall observe the resident take the medication. Any concerns about the resident's reaction to the medication shall be reported to the resident's health care provider and documented in the resident's record. (4) MEDICATION ADMINISTRATION. (a) For facilities which provide medication administration a staff member, who is licensed to administer medications, must be available to administer medications in accordance with a health care provider's order or prescription label. (b) Unusual reactions or a significant change in the resident's health or behavior shall be documented in the resident's record and reported immediately to the resident's health care provider. The contact with the health care provider shall also be documented in the resident's record. (c) Medication administration includes the conducting of any examination or testing such as blood glucose testing or other procedure necessary for the proper administration of medication that the resident cannot conduct himself and that can be performed by licensed staff. (5) MEDICATION RECORDS. (a) For residents who use a pill organizer managed under subsection (2), the facility shall keep either the original labeled medication container; or a medication listing with the prescription number, the 14 name and address of the issuing pharmacy, the health care provider's name, the resident's name, the date dispensed, the name and strength of the drug, and the directions for use. (b) The facility shall maintain a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration. A MOR must include the name of the resident and any known allergies the resident may have; the name of the resident's health care provider, the health care provider's telephone number; the name, strength, and directions for use of each medication; and a chart for recording each time the medication is taken, any missed dosages, refusals to take medication as prescribed, or medication errors. The MOR must be immediately updated each time the medication is offered or administered. 21. Rule 58A-5.0182(7), Florida Administrative Code, requires: (7) MEDICATION LABELING AND ORDERS. (a) No prescription drug shall be kept or administered by the facility, including assistance with self- administration of medication, unless it is properly labeled and dispensed in accordance with Chapters 465 and 499, F.S., and Rule 64B16-28.108, F.A.C. If a customized. patient medication package is prepared for a resident, and separated into individual medicinal drug containers, then the following information must be recorded on each individual container: 1. The resident's name; and 2. Identification of each medicinal drug product in the container. (b) Except with respect to the use of pill organizers as described in subsection (2), no person other than a pharmacist may transfer medications from one storage container to another. (c) : (d) Any change in directions for use of a medication for which the facility is providing assistance with self-administration or administering medication must be accompanied by a written medication order issued and signed by the resident's health care provider, or a faxed copy of such order. The new directions shall 15 -promptly be recorded in the resident's medication observation record. The facility may then place an "alert" label on the medication container which directs staff to examine the revised directions for use in the MOR, or obtain a revised label from the pharmacist. (e) . (f) The facility shall make every reasonable effort to ensure that prescriptions for residents who receive assistance with self-administration of medication or medication administration are filled or refilled ina timely manner. 22. On November 20, 2007, the Agency completed Complaint Survey CCR #2007013093 of the Clearview facility. 22.1. Based on record review, observation, and interviews, the administrator did not ensure that the facility had maintained a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration for four -- Residents #1, #3, #6 and #9 -- out of 7 sampled residents who received assistance with self-administration of medication. 22.2. During a comparison of the medications and review of the MOR's for November 2007, Resident #1's MOR had a line through the “Januvia 100 mg T and the Diavan 320 mg T - 1T po QD (one tablet by mouth everyday) (in the morning)” from 11/17/07 to 11/19/07, rather than any initials or other notation as to administration on each day. 22.3. During an interview at approximately 1:01 p.m. on 16 November 20, 2007, the Clearview administrator stated, "Yes", when he was shown the line that had been scratched through the dates, rather than initialed to indicate that the medications were given. The Administrator further stated at approximately 1:02 p.m. on November 20, 2007, "The old Administrator, I guess, did it (scratched through the dates rather than initialing that the meds. had been given), for this (#1) resident.” 22.4. During a continued review of the bubble packs filled on 11/05/07 for Resident #3, Resident #3 was to have received Benztropine (Cogentin) “1 mg T- 1T po BID” (one tablet by mouth twice a day). However, the November 2007 MOR had a line through the MOR for the Benztropine from 11/16/07 to 11/19/07, rather than any initials or other notation as to administration on each day. 22.5. During an interview at approximately 1:01 p.m. on November 20, 2007, the administrator stated, "Yes", when he was shown the line that had been scratched through the 4 dates rather than initialed as given. The administrator further stated at approximately 1:02 p.m. on November 20, 2007, "The old administrator, I guess, did it (scratched through the four dates rather than initialing that the Benztropine had been given)," for this resident (#3).” 22.6. During review, Resident #6's MOR for November 17 2007 had a scratch through three days from 11/17/07 through 11/19/07 for the following five medications: Potassium CL 10 meq T - 2T po QD (two tablets by mouth every day); Wellbutrin XL 300 mg T - 1 T po QD (one tablet by mouth every day); Prozac 40 mg C - 1 C po QD, at 8:00 .a.m., per the MOR: Zantac 150 mg T - 1T po BID; Synthroid 50 mcq T - 1T po QD. 22.7. During further record review, Resident #6's MOR for November 2007 had a scratch through four days from 11/16/07 through 11/19/07 for four other medications: Enablex 7.5 mg T - 1T po QD at HS (one tablet by mouth at night or bedtime); Geodon 80 mg C - 2C po QD at HS; Risperdal 4 mg T - 2T po QD at HS; Depakote 500 mg - 1 at PM, per the MOR. 22.8. During a record review, Resident #9's medication observation record (MOR) indicated that Resident #9 was to receive Depakote 500 mg (1) 3 X daily at 8:00 a.m.; 12:00 noon and at 6:00 p.m. However, the November 2007 MOR had a line through the MOR for the Depakote 8:00 a.m. dose from 11/17/07 to 11/18/07 and an “O” under 11/19/07. The 12:00 noon and the 6:00 p.m. doses had a line through the MOR from 11/16/07 through 11/18/07 and an “O” under the 11/19/07 square, rather than any initials or other notation as to administration. 22.9. Resident #9 had two other medications -- Benztropine T - 1 mg 3 X daily and Clonazepen .5mg (1/2) 2 18 X daily -- that were not initialed as given or otherwise annotated as to administration. The 8:00 a.m. dose of Benztropine was not initialed, but only had a line through the dates from 11/17/07 through 11/18/07 and an O under 11/19/07. The 12:00 noon dose was last initialed as given on 11/09/07 and blank from 11/10/07 through 11/19/07. The Clonazepen 8:00 a.m. and 6:00 p.m. doses were not initialed as given from 11/17/07 to 11/18/07 and an “O” was entered under 11/19/07. 23. The Agency determined that this deficient practice of failure to maintain accurate and updated Medication Observation Records was related to the personal care of the resident that indirectly or potentially threatened the health, safety, or security of the resident and cited Respondent Clearview for a State Class III deficiency. Specifically, a line drawn through several dates on the MOR indicates a complete disregard for the MOR system and indicates that either no record was kept for the entire period with a belated entry made for drugs that may or may not have been administered, or that the line was drawn in anticipation of drug administration, either case being a violation of the requirement to maintain a contemporaneous record of drug administration. 24. The Agency provided Respondent with a mandatory correction date of December 20, 2007. 19 24. On January 22, 2008, the Agency conducted a follow-up to the Complaint Survey (CCR #2007013093) of the Respondent. 24.1. Based on observation, record review and interview, the Clearview facility failed to ensure that the daily medication observation records (MORs) for 2, Residents #3 and #5, of the 5 sampled residents for medication review were up-to-date. 24.2, Record review of the 01/08 MOR for Resident #3 revealed the following entries: Geodon, 60 mg, 1 tablet by mouth 2 times daily. Geodon, 80 mg, 1 tablet by mouth 2 times daily Depakote, 500 mg, 3 tablets by mouth daily at bedtime. Depakote, 500 mg, 3 tablets by mouth daily in the morning. 24.3. Observation conducted 01/22/08 at 9:45 a.m. of the medication bubble packs for Resident #3 revealed no package of Geodon, 60 mg. A medication bubble pack that was present was labeled Geodon, 80mg, labeled, “take 2 capsules by mouth in the evening.” A second bubble pack of Geodon, 80 mg, was also found for Resident #3 labeled, “take 1 capsule by mouth every morning.” 24.4. Observation conducted on 01/22/08 at 9:45 a.m. of ‘the medication bubble packs for Resident #3 revealed three (3) medication bubble packs for Depakote: a medication bubble pack for Depakote, 500 mg, labeled, “3 tablets by mouth daily at bedtime;” a second pack for Depakote, 500 20 mg, labeled, “3 tablets by mouth daily in the morning;” and a third Depakote, 500 mg, labeled, “take 3 tablets by mouth 2 times a day;” this latter package of medication was not identified on the MOR. 24.5. Record review of the 01/08 MOR for Resident #5 revealed an entry for Diphenhydromine, 30mg tablet, to be taken 1 capsule by mouth in the evening. Observation conducted on 01/22/08 at 9:45 of the medication bubble pack revealed a label for Diphenhydromine, 50mg capsule, 1 capsule by mouth in the evening. 24.6. Interview conducted on 01/22/08 with Carl, a staff member, confirmed that the medication labels for Geodon, Depakote, and Diphenhydromine did not match the entries on the MOR and that a clarification would have to be obtained. 24.7. The Agency determined that this deficient practice of failure to maintain accurate and updated Medication Observation Records was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent Clearview for an uncorrected State Class III deficiency. 25. The Agency provided Respondent Clearview with a mandatory correction date of February 22, 2008. 21 26. The November 20, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined by law. WHEREFORE, the agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent Clearview, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(c), Florida Statutes (2007). COUNT III 27. The Agency re-alleges and incorporates paragraphs 1 through 5, as if fully set forth in this count. 28. Pursuant to Florida law, facilities shall offer personal supervision, as appropriate for each resident. R. 58A- 5.0182(1), Florida Administrative Code. Specifically, Rule 58A- 5.0185(6),(7) and (8), Florida Administrative Code, require: (6) MEDICATION STORAGE AND DISPOSAL. (c) Medication which has been discontinued but which has not expired shall be returned to the resident or the resident's representative, as appropriate, or may be centrally stored by the facility for future resident use by the resident at the resident's request. If centrally stored by the facility, it shall be stored separately from medication in current use, and the area in which it is stored shall be marked "discontinued medication." Such medication may be reused if re-prescribed by the resident's health care provider. (d) When a resident's stay in the facility has ended, the administrator shall return all medications to the resident, the resident's family, or the resident's guardian unless otherwise prohibited by law. If, after 22 notification and waiting at least 15 days, the resident's medications are still at the facility, the medications shall be considered abandoned and may disposed of in accordance with paragraph (e). (e) Medications which have been abandoned or which have expired must be disposed of within 30 days of being determined abandoned or expired and disposition shall be documented in the resident's record. The medication may be taken to a pharmacist for disposal or may be destroyed by the administrator or designee with one witness. (7) MEDICATION LABELING AND ORDERS. (a) No prescription drug shall be kept or administered by the facility, including assistance with self- administration of medication, unless it is properly labeled and dispensed in accordance with Chapters 465 and 499, F.S., and Rule 64B16-28.108, F.A.C. If a customized patient medication package is prepared for a resident, and separated into individual medicinal drug containers, then the following information must be recorded on each individual container: 1. The resident's name; and 2. Identification of each medicinal drug product in the container. (6) Except with respect to the use of pill organizers as described in subsection (2), no person other than a pharmacist may transfer medications from one storage container to another. (8) OVER THE COUNTER (OTC) MEDICATIONS. (a) A stock supply of OTC medications for multiple resident use is not permitted in any facility. (b) Non-prescription over-the-counter drugs, when centrally stored, shall be labeled with the resident's name, and the manufacturer's label with directions for use shall be kept with the medication. (c) When an over-the-counter medication is prescribed by a health care provider, the medication becomes a prescription medication and shall be managed in accordance with prescription medication under this rule. 29. On November 20, 2007, the Agency completed a Complaint Survey (CCR #2007013093) of the Respondent facility. 23 29.1. Based on observation and interview, the administrator did not ensure that no prescription drug had been kept or administered by the facility, including assistance with self-administration of medication, unless it is properly labeled and dispensed in accordance with chapters 465 and 499, F.S., and Rule 64B16-28.108, F.A.C. for the facility residents. 29.2. During a comparison of the medications with individual resident's medication observation records on November 20, 2007, there were a number of medications -- one round white pill approximately half the size of a dime, and five pieces of other pills -- found in the bottom of the medication drawer. During an interview at approximately 2:38 p.m. on November 20, 2007, the Clearview Administrator stated, "Okay, I will flush those ina moment.” 29.3. The Agency determined that this deficient medication storage and disposal practice was related to the personal care of the resident that indirectly or potentially threatened the health, safety, or security of the resident and cited Respondent Clearview for a State Class III deficiency. 30. The Agency provided Respondent Clearview with a mandatory correction date of December 20, 2007. 24 31. On January 22, 2008, the Agency conducted a follow-up to the Complaint Survey (CCR #2007013093) of the Clearview facility. 31.1. Based on observation and interview, the facility failed to ensure that prescription drugs were kept properly labeled in regard to loose/unpackaged medications. 31.2. Observation conducted 01/22/08 at approximately 10:00 a.m. of the medication drawer revealed 3 loose pills in the bottom of the drawer. Interview conducted on 01/22/08 at this same time with Carl, a staff member, confirmed that the medications observed were prescribed for a resident of the facility, and they were out of the package. 31.3. The Agency determined that this deficient medication storage and disposal practice was related to the personal care of the resident that indirectly or potentially threatened the health, safety, or security of the resident and cited Clearview for an uncorrected State Class III deficiency. 32. The Agency provided Respondent Clearview with a mandatory correction date of February 22, 2008. 33. The November 20, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined 25 by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2) (c), Florida Statutes (2007). COUNT IV The Agency re-alleges and incorporates paragraphs 1 through 5, as if fully set forth in this count. 34. Pursuant to Florida law, Rule 58A-5.019(2) (a), Florida Administrative Code, requires: (2) STAFF. (a) Newly hired staff shall have 30 days to submit a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis. Freedom from tuberculosis must be documented on an annual basis. A person with a positive tuberculosis test must submit a health care provider's statement that the person does not constitute a risk of communicating tuberculosis. Newly hired staff does not include an employee transferring from one facility to another that is.under the same management or ownership, without a break in service. If any staff member is later found to have, or is suspected of having, a communicable disease, he/she shall be removed from duties until the administrator determines that such condition no longer exists. 35. Pursuant to Florida law, Rule 58A-5.024(2) (a), Florida Administrative Code, requires: (2) STAFF RECORDS. (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and 26 verification of freedom from communicable disease including tuberculosis. 36. On November 20, 2007, the Agency completed a Complaint Survey (CCR #2007013093) of the Respondent facility. 36.1. Based on record review and interview, the facility failed to ensure that 2 of 3 facility employees had verification of freedom from communicable disease including tuberculosis, referred to as employees #2 and #3. 36.2. During a review of employee #2's file, it was revealed that this individual first began employment with the facility in May of 2006. Continued review of the employee’s personnel record revealed no statement from a health care provider indicating freedom from communicable disease and no evidence of freedom from tuberculosis updated on an annual basis. 36.3. Confidential interviews with residents revealed that employee #2 works as the cook and provides residents with their medications. 36.4. During a review of employee #3's file, who was the administrator of Clearview, it was apparent that employee #3’s personnel file contained no statement from a health care provider indicating freedom from communicable disease and no evidence of freedom from tuberculosis updated on an annual basis. 27 36.5. The Agency determined that this deficient practice of failure to obtain and maintain employee health screening was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent for a State Class III deficiency. 37. The Agency provided Respondent with a mandatory correction date of December 20, 2007. 38. On January 22, 2008, the Agency conducted a follow-up to the Complaint Survey (CCR #2007013093) of the Respondent. 38.1. Based’ on record review and interview, the facility failed to ensure that 1 of 3 facility employees had verification of freedom from communicable disease including tuberculosis. 38.2. A request to review the administrator's (“employee #1's”) personnel record on 1/22/08 at approximately 10:20 a.m. revealed it was not present on the facility property. The administrator left the facility to retrieve his file on 1/22/08 at 10:22 a.m. The administrator returned to the facility at 10:55 a.m. on 1/22/08. The administrator had a freedom from communicable disease and tuberculosis statement dated 1/22/08 with a physician license number and no signature. Interview with the administrator revealed he had gone by the doctor's 28 office when going to retrieve his file. This incomplete document. which was retrieved during the survey process does not meet the requirements of applicable law, being unsigned and, even if it had been signed, dated well past the mandatory correction date of December 20, 2007. 38.3. The Agency determined that this deficient practice of failure to obtain and maintain employee health screening was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent Clearview for an uncorrected State Class III deficiency. 39. The Agency provided Respondent Clearview with a mandatory correction date of February 22, 2008. 40. The November 20, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent Clearview, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(c), Florida Statutes (2007). COUNT V 41. The Agency re-alleges and incorporates paragraphs 1 through 5, as if fully set forth in this count. 29 42. Rule 58A-5.0191(2) (e), Florida Administrative Code, requires: (e) Staff who prepare or serve food, who have not taken the assisted living facility core training, must receive a minimum of l-hour in-service training within 30 days of employment in safe food handling practices. 43. Rule 58A-5.020(1) (d), Florida Administrative Code, requires: (1) GENERAL RESPONSIBILITIES. When food service is provided by the facility, the administrator or a person designated in writing by the administrator shall: (d) Maintain the in-service and continuing education requirements specified in Rule 58A-5.0191. 44. Rule 58A-5.024(2) (a)l., Florida Administrative Code, requires: The facility shall maintain the following written records in a form, place and system ordinarily employed in good business practice and accessible to Department of Elder Affairs and Agency staff. (2) STAFF RECORDS. (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition, records shall contain the following, as applicable: 1. Documentation of compliance with all staff training required by Rule 58A-5.0191, F.A.C.; .. .- 45. On July 26, 2007, the Agency conducted a biennial licensure renewal survey of Clearview. 45.1. Based on record review and interview, one of three staff sampled, Employee #3, who had been employed at 30 least 30 days and who prepared or served food as a part of their duties had not received the 1 hour in-service training in safe food handling practices and had not received the assisted living facility core training. 45.2. Personnel record review during the July 26, 2007, survey revealed that a resident who cooked for lunch and dinner, Employee #3, had no documented evidence verifying that he had received a 1 hour in-service training in safe food handling practices. 45.3. Interview with the administrator at approximately 1:50 p.m. confirmed that Employee #3 occasionally served meals to the residents. The administrator stated that he was not aware that the resident needed 1-hour training. 46. The Agency determined that the deficient prac tice of not having food service employees properly trained in safe food handling practices was related to the personal care of the vesident that indirectly or potentially threatened the health, safety, or security of the resident and cited Responden State Class III deficiency. t fora 47. The Agency provided Respondent with a mandatory correction date of August 27, 2007. The deficiency was corrected on September 10, 2007. 48. On November 20, 2007, the Agency completed a Complaint Survey (CCR #2007013093) of the Respondent facility. 31 48.1. Based on record review and interview, the facility failed to ensure that 1, employee #2, of 3 food handling employees whose records were reviewed had a minimum of 1l-hour in-service training within 30 days of employment in safe food handling practices. 48.2. During a review of employee #2's file, it was revealed that he had first been employed with the facility in May of 2006. Continued review of employee #2’s personnel file revealed no evidence of core training or a minimum of 1-hour in-service training within 30 days of employment in safe food handling practices. 48.3. Confidential interview with residents on 11/20/07 revealed that employee #2 prepares meals for residents on a regular basis. 48.4. The Agency determined that this deficient practice of failing to require employee training in safe food handling practices was related to the personal care of the resident that indirectly or potentially threatened the health, safety, or security of the resident and cited Respondent for a State Class III deficiency. 49. The Agency provided Respondent Clearview with a mandatory correction date of December 20, 2007. 50. On January 28, 2008, Respondent Clearview entered into a settlement agreement with the Agency by the terms of which 32 Clearview admitted the above violations set forth in the July 26, 2007, survey. 51. On January 22, 2008, the Agency conducted a follow-up to the Complaint Survey (CCR #2007013093) of the Respondent. 51.1. Based on record review and interview, the facility failed to ensure that 1, employee #3, of 3 employees reviewed had a minimum of 1-hour in-service training within 30 days of employment in safe food handling practices. 51.2. During a review of employee #3's file, it was revealed that he had begun employment with the facility in May of 2006, left in October of 2007, and returned on November 1, 2007. Continued review of the file revealed no evidence of a minimum of 1-hour in-service training within 30 days of employment in safe food handling practices. 51.3. Interview with the administrator on 1/22/08 at approximately 10:00 a.m. revealed that employee #3 is responsible for preparing meal for Respondent facility’s residents. 51.4. The Agency determined that this deficient practice of failing to provide employees with training in food handling practices was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited 33 Respondent Clearview for an uncorrected State Class III deficiency. 52. The Agency provided Respondent with a mandatory correction date of February 22, 2008. 53. The November 20, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined by law. 54. The January 22, 2008, being a second repeat of the deficiency of July 26, 2007, the January 22, 2008, deficiency constitutes grounds for a repeat State Class III deficiency as set forth in § 429.19(2)(c), Florida Statutes (2007). 55. The July 26, 2007, the November 20, 2007, and the January 22, 2008, deficiencies being three consecutive instances of substantially the same deficient practice of failing to adequately train employees in safe food handling practices constitutes a “demonstrated pattern of deficient performance” for purposes of §408.815(1) (d), Florida Statutes. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2) (c), Florida Statutes (2007). COUNT VI 56. The Agency re-alleges and incorporates Paragraphs one 34 1 through five 5 and Counts I through V as if fully set forth in this count. 57. That pursuant to Section 429.19(7), Florida Statutes (2007), in addition to any administrative fines imposed, the Agency.may assess a survey fee, equal to the lesser of one half of a facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28(3)(c), Florida Statues (2007), to verify the correction of the violations. 58. On or about January 22, 2008, the Agency completed a complaint investigation at the Clearview facility that resulted in violations that were the subject of the complaint to the Agency. 59. Pursuant to Section 429.19(7), Florida Statues (2007), such a finding subjects the Respondent Clearview to a survey fee equal to the lesser of one half of the Respondent Clearview's biennial license and bed fee or $500.00. 60. Respondent Clearview is therefore subject to a complaint survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2007). WHEREFORE, the Agency intends to impose an additional survey fee of five hundred dollars ($500.00) against Respondent, 35 an assisted living facility in the State of Florida, pursuant to Section 429.19(7), Florida Statutes (2007). COUNT VII 61. The Agency re-alleges and incorporates paragraphs one (1) through five (5) of this Complaint, as if fully recited in this count. 62. Based on employee file review and staff interview, Clearview has. engaged in a pattern or practice of deficient performance in hiring and retaining an employee who did not meet the background screening requirements of the Agency, as identified in the surveys of July 26, October 5, 2007, November 20, 2007, and January 22, 2008. 63. Florida Statutes (2007), § 429.174, requires: The owner or administrator of an assisted living facility must conduct level 1 background screening, as set forth in chapter 435, on all employees hired on or after October 1, 1998, who perform personal services as defined in s. 429.02(16). 64. Section 429.02(16), Florida Statutes (2007), defines: (16) "Personal services" means direct physical assistance with or supervision of the activities of daily living and the self-administration of medication and other similar services which the department may define by rule. "Personal services" shall not be construed to mean the provision of medical, nursing, dental, or mental health services. 65. Rule 58A-5.019(3), Florida Administrative Code, requires: 36 (3) BACKGROUND SCREENING. (a) All staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S., and meet the screening standards of Section 435.03, F.S. A packet containing background screening forms and instructions may be obtained from the Agency Background Screening Unit, 2727 Mahan Drive, Tallahassee, FL 32308; telephone (850) 410-3400. Within ten (10) days of an individual's employment, the facility shall submit the following to the Agency Background Screening Unit: 1. A completed Level 1 Criminal History Request, AHCA Form 3110-0002, July 2005, which is incorporated by reference and may be obtained in the screening packet referenced in paragraph (3) (a) of this rule; and 2. A check to cover the cost of screening. (b) The results of employee screening conducted by the agency shall be maintained in the employee's personnel file. (c) Staff with the following documentation in their personnel records shall be considered to have met the required screening requirement: 1. A copy of their current professional license, proof that a criminal history screening has been conducted, and an affidavit of current compliance with Section 435.03, F.S.; 2. Proof of continuous employment in an occupation which requires Level 1 screening without a break in employment that exceeds 180 days, and proof that a criminal history screening has been conducted within the previous two (2) years; or 3. Proof of employment with a corporation or business entity or related entity that owns, operates, or manages more than one facility or agency licensed under Chapter 400, F.S., that conducted Level 1 screening as a condition of initial or continued employment. 66. On July 26, 2007, the Agency conducted a biennial licensure renewal survey of Clearview. 66.1. Based upon a review of two (2) sampled personnel 37 records on July 26, 2007, the facility did not ensure that one employee, C.V., hired after October 1, 1998, and who performed personal services for residents of Clearview, had verification on file of compliance with Level 1 background screening. 66.2. The personnel record for C.V. did not have documentation on file of compliance with background screening. 66.3. Interview with the manager of Clearview on July 26, 2007, revealed that the background screenings had been sent out, and had not yet come back yet as of July 26, 2007. 67. The Agency determined that this deficient practice was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent for a State Class III deficiency. 68. The Agency provided Respondent with a mandatory correction date of August 25, 2007. 69. On October 5, 2007, the Agency conducted a follow-up survey to the biennial license renewal survey. 69.1. Based on employee file review and staff interview, Clearview hired an employee who did not meet the background screening requirements of the Agency, regarding one of two employees reviewed, C.V. 38 69.2. A review of the Employee records for C.V. revealed that C.V.’s background check had been returned to Clearview by the Agency indicating a disqualifying offense on July 31, 2007, but that Clearview had taken no steps to remove the employee or to seek an. exemption from Gisqualification pursuant to § 435.07, Florida Statutes. 69.3. The facility's staffing schedule indicated that C.V. continued to be scheduled as direct personal care staff for residents of Clearview through the date of the October 5, 2007, survey. 69.4. An interview with the administrator on October 5, 2007, at approximately 3:30 p.m., confirmed that no documentation was available indicating that C.V. met the background screening requirements. 69.5. Upon inquiry with the Agency’s Background Screening Unit on October 5, 2007, the Agency surveyor learned that C.V. had a disqualifying offense and that Clearview had failed to provide documentation to the Agency concerning the disqualifying offense. 69.6. During at least the period from August 31, 2007, through October 5, 2007, C.V. was not in compliance with Level 1 Background Screening Requirements. 70. On January 28, 2008, Clearview entered into a settlement agreement with the Agency admitting the violation set 39 forth in paragraphs 66 through 69, of. this administrative complaint. 71. On November 20, 2007, the Agency initiated two complaint investigations, CCR #2007013085 and CCR #2007013093. 71.1. Based on record review and interview, the facility was still not in compliance with level 1 background screening for one employee, C.V., of three employees. 71.2. During a review of C.V.’s employee file, it was revealed that this individual had begun employment with the facility around May 2006. 71.3. Confidential interviews with residents revealed employee C.V. provides facility residents with assistance with medications and cooks for the residents. 71.4, Continued review of employee C.V.'s file revealed no evidence of background screening results. However, there was documentation dated 10/12/07 requesting an exemption from disqualification. 71.5. Further investigation and a review of the facility's survey report dated 10/5/07 revealed the employee did not have clearance from the background screening unit and required an exemption in order to maintain employment at the facility. A review of the facility's staff schedule revealed that employee C.V. 40 currently continues to provide personal services to residents at the facility despite his failure to comply with the background screening requirements. 71.6. Interview with the administrator on 11/20/07 at approximately 3:00 p.m. revealed that the Clearview administrator was aware of the background screening problems and was using this employee until he can get some new people hired and trained. 71.7. The Agency determined that this deficient practice of retaining an employee subject to level 1 background screening standards under § 429.174, Florida Statutes (2007) who does not meet the screening standards of § 435.03, Florida Statutes (2007), and for whom exemptions from disqualification have not been provided by the agency was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent for a State Class III deficiency. 71.8. The Agency provided Respondent with a mandatory correction date of December 20, 2007. 72. On January 22, 2008, during a revisit to the complaint investigations, CCR 2007013085 and 2007013093 conducted on November 20, 2007, the Agency found that Clearview had still employed an individual, C.V., as direct personal care staff for 41 residents of Clearview, knowing that the individual was disqualified from employment based on a disqualifying offense for purposes of Level 1 background screening. 72.1. Employee C.V. was hired on or after October 1, 1998, to provide personal services to residents of Clearview. 72.2. Interview with the Clearview administrator on 1/22/08 at 9:57 a.m. revealed the administrator has not received any information regarding an exemption for employee C.V. who did not meet background screening requirements. The administrator called the background screening unit at the time of the survey and requested information. The administrator was told that no information would be given over the telephone and the administrator left a voice mail for a supervisor. 72.3. Employee C.V. was observed to be the only staff member present in the Respondent facility upon the Agency surveyor’s entry on 1/22/07 at approximately 9:00 a.m. Employee C.V. was responsible for supervising residents, preparing meals, and assisting with medications for the 9 residents present at the facility on 1/22/08. 72.4. The Agency determined that this deficient practice of retaining an employee subject to level 1 background screening standards under § 429.174, Florida 42 Statutes (2007) who does not meet the screening standards of § 435.03, Florida Statutes (2007), and for whom exemptions from disqualification have not been provided by the Agency was related to the personal care of the residents that indirectly or potentially threatened the health, safety, or security of the residents and cited Respondent Clearview for an uncorrected State Class III deficiency. 72.5. The Agency provided Respondent with a mandatory correction date of February 22, 2008. 72.6. The November 20, 2007, deficiency being uncorrected on January 22, 2008, the January 22, 2008, deficiency constitutes grounds for an uncorrected State Class III deficiency as defined by law. 73. Section 429.14, Florida Statutes, provides: (1) In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee of an assisted living facility for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee of an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: (£) A determination that a person subject to level 2 background screening under s. 408.809 does not meet the screening standards of s. 435.04 or that the facility is retaining an employee subject to level 1 background screening standards under s. 429.174 who 43 does not meet. the screening. standards of s. 435.03 and for whom exemptions from disqualification have. not been provided by the agency. 74. As set forth in paragraphs 66 through 72 of this complaint, Respondent facility has over the period from August 31, 2007, through January 22, 2008, employed a person who provided direct care services to residents, and was therefore subject to level 1 background screening standards under § 429.174, Florida Statutes, who does not meet the screening standards of § 435.03, Florida Statutes, and for whom exemption from disqualification has not been provided by the agency, thus subjecting Respondent facility to license revocation under § 429.14(1) (£), Florida Statutes. 75. As set forth in paragraphs 62 through 68 of this complaint, Respondent facility has over the period from August 31, 2007, through January 22, 2008, employed a person who provided direct care services to residents, and was therefore subject to level 1 background screening standards under § 429.174, Florida Statutes, who does not meet the screening standards of § 435.03, Florida Statutes, and for whom exemption from disqualification has not been provided by the Agency, thus engaging in a demonstrated pattern of deficient performance for purposes of § 408.815(1) (d), and subjecting Respondent facility to license revocation under § 408.815(1) (d), Florida Statutes. 76. The employment of a person who provides direct care 44 services to residents, and who is therefore subject to level 1 background screening standards under § 429.174, Florida Statutes, who does not meet the screening standards of § 435.03, Florida Statutes, and for whom exemption from disqualification has not been provided by the agency is an act seriously affecting the health, safety, or welfare of residents of the facility. 77. The finding of the January 22, 2008, survey. involved the same employee and followed three prior citations by the Agency for the same deficiency and was thus an intentional or negligent act. 78. The conduct of Respondent facility as set forth in paragraphs 62 through 68 of this complaint is intentional or negligent conduct seriously affecting the health, safety, or welfare of a resident of the facility, and subjecting Respondent facility to license revocation under §§ 408.815(1) (b) and 429.14(1) (a) Florida Statutes. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, pursuant to §§ 408.815(1) (b) and (d) and § 429.14(1) (£), Florida Statutes (2007), and the Agency intends to impose an administrative fine in the amount of $1,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(c), Florida Statutes (2007). 45 COUNT VIII 79. The Agency re-alleges and incorporates paragraphs one (1) through five (5), paragraphs fifty-eight (58) through sixty- eight (68) and Counts I, II, III, IV and V of this Complaint, as if fully recited in this count. 80. The Agency may revoke any license issued under Part I of Chapter 429 Florida Statutes (2007) for the citation of one (1) or more cited Class I deficiencies, three (3) or more cited Class II deficiencies, or five (5) or more cited Class. III deficiencies that have been cited on a single survey and have not been corrected within the specified time period. Section 429.14(1) (e) Florida Statutes (2007). 81. The Respondent was been cited with six (6) Class III deficiencies on the Agency survey completed November 20, 2007, each such deficiency having a mandated correction date of December 20, 2007. 82. On January 22, 2008, the Respondent was again cited with the same six (6) Class III deficiencies as on the Agency survey completed November 20, 2007. 83. The six (6) Class III deficiencies cited on the Agency survey completed November 20, 2007, were uncorrected on the Agency survey completed January 22, 2008. 84. Based on paragraphs 79 through 83 of this complaint, the Agency seeks the revocation of the Respondent’s licensure 46 pursuant to § 429.14(1) (e)3. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, pursuant to § 429.14(1) (e)3, Florida Statutes (2007). COUNT IX 85. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Count V of this Complaint, as if fully recited in this count. 86. The July 26, 2007, the November 20, 2007, and the January 22, 2008, deficiencies being three consecutive instances of substantially the same deficient practice of failing to adequately train employees in safe food handling practices constitutes a “demonstrated pattern of deficient performance” for purposes of §408.815(1) (d). 87. The July 26, 2007, the November 20, 2007, and the January 22, 2008, deficiencies being three consecutive instances of substantially the same deficient practice of failing to adequately train employees in safe food handling practices subject Respondent facility to license. revocation under § 408.815(1) (d), Florida Statutes. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, pursuant to § 408.815(1) (d), Florida Statutes 47 (2007). COUNT X 88. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Count I of this Complaint, as if fully recited in this count. 89. Section 429.19(5), Florida Statutes (2007), provides: (5) Any action taken to correct a violation shall be documented in writing by the owner or administrator of the facility and verified through followup visits by agency personnel. The agency may impose a fine and, in the case of an owner-operated facility, revoke or deny a facility's license when a facility administrator fraudulently misrepresents action taken to correct a violation. 90. When the administrator on 1/22/08 at approximately 10:15 a.m., stated to the Agency surveyor that the administrator had provided the needed training to employee #3, the administrator intentionally and with the purpose of inducing reliance on the statement, and knowing the statement to be false, misrepresented to the Agency surveyor “action taken to correct a violation” for purposes of Section 429.19(5), Florida Statutes (2007), thus providing grounds for revocation. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, pursuant to § 429.19(5), Florida Statutes (2007). SUMMATION WHEREFORE, based on the above ten (10) counts the Agency 48 intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, to impose administrative fines totaling six thousand dollars ($6,000.00) and a survey fee of five hundred ($500.00), or such other and further relief as this tribunal: deems just. WA. Respectfully submitted this p> day of February 2008. Esq. la. Bar. No. 817775 Assistant General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330H St. Petersburg, FL 33701 727-552-1435 Facsimile: 727-552-1440 Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3,MS #3, Tallahassee, FL 32308;Telephone (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt 49 No. 7007 1490 0001 6907 5350 on February 4 , 2008 to Kevin S. Kladakis, Registered Agent, Clearview Manor, 4008 Sevilla St., Tampa, FL 33629 and by U.S. Certified Mail, Return Receipt No. 7007 1490 0001 6907 5343 to Jerry Grooms, Administrator, Clearview Manor, 1080 S. Clearview Avenue, Tampa, FL 33629. es H. dds Esquire sistant General Counsel Copies furnished to: Kevin S. Kladakis, Registered Agent Jerry Grooms, Administrator Clearview Manor Clearview Manor 4008 Sevilla Street 1080 S. Clearview Avenue Tampa, FL 33629 Tampa, FL 33629 (U.S. Certified Mail) (U.S. Certified Mail) Kathleen Varga James H. Harris, Esq. Facility Evaluator Supervisor Agency for Health Care Admin. 525 Mirror Lake Dr., 4" Floor 525 Mirror Lake Drive, 330H St. Petersburg, Florida 33701 St. Petersburg, FL 33701 (Interoffice) (Interoffice) 50 COMPLETE THIS SECTIQg My DELIVERY SENDER: COMPLETE THIS SECTION @ Complete items 1, 2, 3. Also complete item.4 If Restricted Delivery is desired. @ Print your name and address on the reverse 7 so that we can return the card to you. " l Attach this card to the back of the mailpiece, or on the front if space permits. 1, Article Addressed to: D. Is delivery address different from item 1? C1 Yes If YES, enter delivery address below: [1 No Kevin S. Kladakis, Reg. Agent Clearview Manor 4008 Sevilla Street Tampa, FL 33629 3. Service Type O Certified Mail +] Express Malt . Ci Registered 1 Return Receipt for Merchandise . Ol insured Mail ~16.0.D, ‘ DELIVERY ™ Complete items 1,2,. 3. Also complete Item 4 if Restricted Delivery Is desired. ™ Print your name and address on the reverse . $0 that we can return the card to you. ™@ Attach this card to the back of the mailpiece, or on the front if space permits. : 1. Article Addressed to: D. Is delivery address different from item 17 1] Yes If YES, enter delivery address below: 0 No Jerry Grooms, Administrator Clearview Manor 1080 S. Clearview Avenue Tampa, FL 33629 3. Service Type CT Certified Mail 1 Express Mail CD Registered 1 Return Receipt for Merchandise C1 insured Mail (1 C.0.D. 2, ‘ 3/ i 700? L480 o001% B40? 5343 ; 20 SO001933 PS Form 3811, February 2004 Domestic Return Receipt 20O8GO (GS 102595-02-M-1540

Docket for Case No: 08-001504