STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, 6 X:- De dO AGENCY FOR HEALTH CARE aon Petitioner, Case No. 2008002855 vs. EXTENDED CARE PORTFOLIO FLORIDA TENANT, LLC d/b/a ENCORE SENIOR VILLAGE AT NAPLES, 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, EXTENDED CARE PORTFOLIO FLORIDA TENANT, LLC d/b/a ENCORE SENIOR VILLAGE AT NAPLES (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2007), and alleges as follows: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of ONE THOUSAND DOLLARS ($1,000.00) based upon one (1) Class II violation. JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2007). . 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42, 120.60 and Chapters 408, Part II, and 429, Part I, Florida Statutes (2007). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees assisted living __facilities in Florida and enforces the applicable federal and state regulations, statutes and rules _ governing z such facilities. Chapters 408, Part Il, and 429, Part I, F lorida Statutes (2007); ‘Chapter 58A-5, Florida Administrative Code. The Agency may deny, revoke, or suspend any license issued to an assisted living facility or impose an administrative fine for violations. Sections 408.813, 408.815, and 429.14, Florida Statutes (2007). In addition to any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility to verify the correction of violations. Section 429.19(7), Florida Statutes (2007). 5. The Respondent was issued a license (License Number 9761), by the Agency to operate a 70-bed assisted living facility located at 1155 Encore Way, Naples, Florida 34110, and was at all material times required to comply with the applicable federal and state regulations, statutes and rule governing such facilities. COUNT I The Respondent Failed To Ensure An Exterior Gate Was Structurally Sound And In Good Repair In Violation Of Rule 58A-5.023(1)(b), Florida Administrative Code 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Pursuant to Florida law, the facility’s physical structure, including the interior and exterior walls, floors, roof and ceilings shall be structurally sound and in good repair. Peeling paint or wallpaper, missing ceiling or floor tiles, or torn carpeting shall be repaired or replaced. Windows, doors, plumbing, and appliances shall be functional and in good working order. All furniture and furnishings shall be clean, functional, free-of-odors, and in good repair. Appliances may be disabled for safety reasons provided they are functionally available when needed. Rule 58A-5.023(1)(b), Florida Administrative Code. 8. The Respondent failed to comply with the above referenced provisions of law. 9. On or about December 18, 2007 through December T° 19, 2007 the © Agency conducted a an 2 Appraisal Survey of the Respondent and its facility. . 10. Based on observation, record review and interview, the facility failed to ensure the exterior gate was structurally sound and in good repair for two (2) of two (2) resident events sampled, Resident number one (1) and Resident number two (2). 11. _.A review of Resident number one’s (1) Health Assessment record on December 19, 2007 revealed a seventy-three (73) year old confused resident, who at the time of an elopement incident on June 9, 2007 weighed 158 pounds. Resident number one (1) was admitted on September 5, 2006 and had diagnoses of Alzheimer's Disease, Hypertension, and a history of Respiratory failure. Resident number one (1) was on Aricept, Lexapro, Lisinopril, Vytorin, and Namenda. Lorazepam 0.5 mgm. was given every evening, Resident number one (1) required supervision of all Activities of Daily Living except eating, for which the resident was independent. 12. On December 19, 2007 a review of an incident report record dated June 9, 2007 at 10:30 am. documented Resident number one (1), "Pulled a wire from the gate key pad." "Resident appeared to be angry." "Was easily directed by the nurse." The report indicates the event occurred at the Cottage number two (2) gate. 13. During an interview with the administrator on December 19, 2007 at 10:00 a.m. the administrator stated, "The gate key pads are all the same on each of the three unit gates for the cottages.” "But this key was different in that the bottom plate of the key pad was not in place and allowed the wire to be pulled out from the bottom." "The resident pulled the wire out from the key pad on June 9, 2007, which allowed Resident number one (1) to open the gate and get out. The staff was there right away, so it was not a case of Resident number one (1) getting away, but we e had no idea about the bottom plate being off. " The administrator verbally relayed they did check all the other gates and the gate for Cottage number two 5 (2) was the only one that had the problem. There is no documentation regarding the follow-up on the key pad repair and check of the other key pads on the other gates. 14. A review of Resident number two’s (2) Health Assessment record on December 18, 2007 identifies Resident number two (2) as a ninety-one (91) year old resident whose diagnoses includes Alzheimer's Disease, Anxiety, and severe Macular Degeneration. Resident number two (2) had a pacemaker, and the fifteen (15) staff and administration interviewed by the surveyor on December 18 2007 through December 19, 2007 presented Resident number two (2) as an active resident who became agitated easily but responded to re-direction, walked outside a lot in the Cottage number two (2) enclosure and worried about the spouse, who came to visit often. Resident number two (2) was subject to regular crying episodes. In addition to some cardiac medications, Resident number two’s (2) November, 2007 Medication Observation Record indicated the resident was on Sertraline 50 mg. daily for depression; Namenda 10 mg. twice daily; Seroquel 50 mg. twice a day; and Aricept 10 mg. once:a day at bedtime. Resident _ number two (2) stood 69 inches and weighed 152 pounds. 15. During the month of November, 2007, Resident number two’s (2) Behavior Monitor documentation indicates no atypical behaviors until the 14th of the month. Resident number two (2) had kicking and hitting behaviors on that day. On the 20th and 21st of November, 2007, Resident number two (2) was noted to be excessively sleepy. Confusion was documented on November 23, 2007 through to November 26, 2007. 16. The resident's Nurses Notes, dated November 29, 2007 indicate Resident number two (2) had "Extreme agitation upon awakening and immediately went to the outside gate and started to shake it, trying | to get H it open.” It Stated Resident 1 number two (2) was yelling “help a Resident number two (2) was documented i in 1 the notes as asking the staff t to call the police. Redirection failed and Resident number two (2) became more agitated and fell onto the sidewalk near the gate, causing a skin tear on the arm. The nurse writes in the November 29, 2007 Nurses Notes of being "Unable to cleanse the skin tear because the resident was combative." Resident number two (2) refused attempts of assistance and hit one of the staff. Resident number two (2) went back into the cottage and a nurse was able to calm the resident down. Resident number two (2), crying, talked of "being mad", but "not knowing why." After a while, Resident number two (2) went outside again. A one time order for Ativan gel was obtained. Resident number two (2) went again to the gate and started to pull on the bars. While Resident number two (2) was pulling on the bars, the nurse was successful in applying the Ativan gel to the resident's hand. 17. In an interview with Employee number thirteen (13), a Licensed Practical Nurse, at 8:00 a.m. on December 19, 2007, the employee stated during the November 29, 2007 episode, "The resident was pulling on the bar of the gate, saying "I am trying to figure out a way to get out of “here.” Resident number two (2) then "bent two bars and ripped another bar out of the gate." During the interview, the nurse described Resident number two’s (2) stance as "The resident braced one knee up against the bar and put both hands on the bar and pulled." Resident number two (2) threw the bar off to the side and turned around and said, "Where are you" to the nurse. "I didn't even think to look where you were before I threw that." "I could have hurt you by mistake." The nurse stated, "The resident then stepped sideways through the space in the gate where the one bar was missing and the two on each were pulled apart.” 18. After getting out the gate, Resident number two (2), followed by the nurse, walked around facility grounds. During an interview on November 19, 2007 the nurse stated, "We walked all around, alternating between the resident's fast Steps and stopping to talk." _The nurse stated "The resident continued to talk about getting away from the facility. ‘Resident number two (2) told the nurse "That's why I don't want to have the blood cleaned up on my arm, because if someone sees an old person with a bleeding arm, they are more likely to feel pity and pick me up, so I can get away." 19. Continuing with the November 19, 2007, 8:00 a.m. interview with Employee number thirteen (13), the nurse stated "When the resident headed for 41, the resident was starting ‘to calm down, but we still called 911 to help, in case we could not prevent the resident from getting out to 41." "Two policemen arrived and the one was very helpful in getting the resident to go to the hospital for an evaluation." The spouse, who had a proven history of helping to calm Resident number two (2) down, also arrived right before the police. The Emergency Management Services team took Resident number two (2) to the hospital by ambulance for an evaluation and treatment. Resident number two (2) returned from the hospital that evening, with a physician's order to increase "Seroquel to 100 mg twice a day", "Atavin 1 mg. gel every four hours as needed for agitation", and "discontinue the oral Ativan." 20. | Employee number thirteen (13) stated during the November 20, 2007 elopement episode, Resident number two (2) "Questioned what was beyond the trees over there, saying there's got to be something beyond the trees” and asked the nurse "To go along with me." 21. Employee number twelve (12), during an interview on December 19, 2007 at 7:15 a.m., stated the "Resident's behavior did not change in the two weeks before the next elopement episode." "The resident was pretty easy to redirect and a lot of times just needed a cup of tea and some discussion when unsettled." "I never had to medicate the resident when the resident was upset.” 22. A record review on December 19, 2007 of the Behavior Monitors for Resident number‘ two (2) revealed only a few atypical behaviors after the first event, with the following: on November 30, 2007 evening: "Restless and agitated"; on November 30, 2007, "Wandering and uncooperative" ; and on December 2, 2007 "Up all night." 23. A review on December 19, 2007 of the Resident Health Assessment form, dated as completed on December 6, 2007, revealed that in the special precautions section Resident number two (2) was identified as being an elopement risk. Resident number two (2) was ordered "Ativan 1 mg. gel, apply topically every four hours as needed for agitation." 24. An interview relative to the second elopement episode on December 13, 2007 was held with Employee number one (1) and the Assistant Program Director, on December 18, 2007 at 12:00 p.m. The employee stated, "I was called on the morning that the resident had. gone through the gate the second time. She stated "I took Employees number five (5) and number six (6) with me and I was scared, because the resident had hit me in the chest and also had hit Employee number five (5) when the resident tried to elope two weeks ago.” "The resident woke up that morning very agitated and was trying to hit the staff." Employee number one (1) indicated that Resident number two (2) ran outside to the Cottage number two (2) gate and started to pull on the same gate bar that was pulled on when Resident number two (2) got through the gate on November 29, 2007. This episode escalated and once again involved the police and Emergency Management Services once again being summoned to assist. The episode ended with Resident number two (2) falling to the ground during an altercation with non-facility staff, and having to be taken to the hospital for emergency post-fall treatment. Employee number one (1) on December 19, 2007 stated Resident number two (2) died later that day in the hospital. 25. During an interview with Employee number five (5) at 2:45 p.m. on December 19, 2007 the employee stated that during the second elopement episode, Resident number two (2) "Tore the same bar out as was pulled out the first time. "The resident was legally blind, but tore the gate bar completely out and threw the bar away in the grass." "Then the resident went through the opening and ran out toward Cottage number five (5) in the back area of the facility. 26. On December 19, 2007 at 9:15 a.m. during a discussion of the November 29, 2007 event with Employee number six (6), the Maintenance Supervisor, stated, "After the resident bent the bar and pulled it out the first time, I put it back into place." "You know how aluminum is, though, after it is bent it is not as strong." "The resident ripped out the same’ bar the second time." When asked during that interview how the bar had been repaired after the November 29, 2007 event, Employee number six (6) stated "I just straightened the bar and put it back into place on the gate." 27. | Employee number six (6), during the December 19, 2007 interview at 9:15 a.m., stated "The bars on the gate are made of aluminum and are hollow inside." 28. At 9:30 am. on December 19, 2007, when asked about the construction of the gate, the administrator stated "Yes, the bars are aluminum." "About a year and half ago, two (2) family members of residents and therapist from the outside got hurt because the gate was so heavy and it swung back too hard.” "That's why we had all the fences changed to aluminum.” The administrator stated she was "Not sure exactly how the fence was repaired after the November 29, 2007 elopement event, but it was repaired the same day that Resident number two (2) broke it the first time. ” 29. During an initial facility tour with Employee number one (1) at 1:00 p.m. on December 18, 2007 an observation occurred at the gate outside Cottage number two (2). It was observed that there were Vertical bars from top to bottom on the gate, which i is s approximately 6-7 feet high. It was also observed that the bar which had been bent and removed by Resident number two (2) and replaced by the facility maintenance staff showed a slightly indented, scraped area at the point of where the vertical bar had been bent. The area between the two vertical bars, where Resident number two (2) had stepped through sideways during each elopement episode, to exit the gate, was approximately eleven (11) inches wide. 30. On December 19, 2007 sometime after the morning discussions with Employee number six (6) and the administrator, the surveyor was notified by Employee number six (6) that "A company from here in Fort Myers that specializes in gates and gate repairs is coming in today to inspect the gate and make some recommendations.” At 3:30 on December 19, 2007, the administrator verified that "The company came today and they had placed a metal plate over the entire gate until they can come back tomorrow with a welding tool to repair. They are coming back tomorrow with equipment to weld each of the vertical bars on to the top and the bottom of _ the gate." 31. The Respondent’s deficient practice was related to the operation and maintenance of the facility or to the personal care of residents which directly threatened the health, safety, or security of the resident and constitutes a Class II deficiency as defined in Section 429.19(2)(b), Florida Statutes (2007). 32. The Agency shall impose an administrative fine for a cited Class II violation in an amount not less than one thousand dollars ($1,000.00) and not exceeding five thousand dollars . ($5,000.00) for each violation. A fine shall be levied notwithstanding the correction of the violation. Section 429.19(2)(b), Florida Statutes (2007). 33. | The Respondent was given a mandatory correction date of January 19, 2008. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of ONE THOUSAND DOLLARS ($1,000.00). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: 1. Enter findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of ONE THOUSAND DOLLARS ($1,000.00). 3. Order any other relief that the Court deems just and appropriate. 4. Respectfully submitted on this Jand day of ay er uA _, 2008. Mm, Andrea M. Lang, Senior Attorney Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel , 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 338-3203 NOTICE THE RESPONDENT IS NOTIFIED THAT IT 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, worn T/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. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form have been served to: Zachary Ward, Administrator, Extended Care Portfolio Florida Tenant, LLC d/b/a Encore Senior Village at Naples, 1155 Encore Way, Naples, Florida 34110, by U.S. Certified Mail, Return Receipt No. 7006 2760 0003 1536 7036, and to: Walter A. Frey III, Registered Agent for Extended Care Portfolio Florida Tenant, LLC d/b/a Encore Senior Village at Naples, 7575 Dr. Phillips Boulevard, Suite 235, Orlando, Florida 32819, by U. S. Certified Mail, Return Receipt No. 7006 2760 0003 1537 2832 on this KD adday or __Aori\ , 2008. Andrea M. Lang, Senior Attorney Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 338-3203 +}-1455 Encore Way Copies furnished to: Zachary Ward, Administrator d/b/a Encore Senior Village at Naples Naples, Florida 34110 (U.S. Certified Mail) Walter A. Frey III, Registered Agent for d/b/a Encore Senior Village at Naples 7575 Dr. Phillips Boulevard, Suite 235 Orlando, Florida 32819 (U.S. Certified Mail) Extended Care Portfolio Florida Tenant, LLC Extended Care Portfolio Florida Tenant, LLC Andrea M. Lang, Senior Attorney Agency for Health Care Administration Office of the General Counsel -2295-Victoria Avenue, Room 346C~--~~ Fort Myers, Florida 33901 (Interoffice Mail) Kriste J. Mennella Field Office Manager Agency for Health Care Administration 2295 Victoria Avenue, Room 340A Fort Myers, Florida 33901 (Interoffice Mail) COMPLETE THIS SECTION ON PELIVERY Lwtack D. Is delivery address different from item 1? 0 Yes if YES, enter delivery address below: [1 No SENDER: COMPLETE THIS SECTION } ™ Complete items 1,2, and 3. Also complete ( item 4 if Restricted Delivery is desired. “ : ; l Print your name and address on the reverse. | : so that we.can return the card to you. + Ml Attach this card to. the back of the mailpiece, oO (4-¢ a Kddressee ite ’ 1. Article. Addressed to: Zachary Ward, Adminis tr Eneore Senior Nillege at M4 10s Encore Way — Nvaptes, florida 34110 © Certified Mail - 1 Express Mail O Registered C Return Receipt for Merchandise 0 insured Mail = C.0.D. : _. | 4. Restricted Delivery? (Extra Fee) . 2. Article Number. z 5 a7 . r + . . frranster hom sarice labo) : 7006 2760 GO03 1536 7036 PS Form 3811, February 2004 Domestic Return Receipt . ; 102595-02-M-1540

Docket for Case No: 08-002630