STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA AGENCY FOR ie ow | a HEALTH CARE ADMINISTRATION, Petitioner, Case No. 2008006665 (finey oN 2008006666 (cond.) vs. WEST PALM BEACH HEALTH CARE ASSOCIATES, LLC, d/b/a AZALEA COURT, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter Agency), by and through the undersigned counsel, and files this Administrative Complaint against WEST PALM BEACH HEALTH CARE ASSOCIATES, LLC, d/b/a AZALEA COURT (hereinafter Respondent), pursuant to Section 120.569, and 120.57, Florida Statutes, (2007), and alleges: NATURE OF THE ACTION This is an action to revoke Respondent’s license as a skilled nursing facility, to change Respondent’s licensure status from Standard to Conditional commencing April 11, 2008 and ending May 22, 2008, to impose an administrative fine of twenty-five thousand dollars ($25,000.00), and to impose a survey fee in the amount of six thousand dollars ($6,000.00), based upon Respondent being cited for two (2) State Class I deficiencies and one (1) State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2007). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a 120-bed nursing home, located at 5065 Wallis Road, West Palm Beach, FL 33415, and is licensed as a skilled nursing facility license number 1198096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. That pursuant to Florida law, an intentional or negligent act materially affecting the health or safety of residents of the facility shall be grounds for action by the agency against a licensee. § 400.102(1)(a), Florida Statutes (2007). 8. That Florida law provides that all licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following. ..the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan...the right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints... § 400.022, Florida Statutes (2007). 9. That on or about April 8-11, 2008, the Agency conducted a Biennial Licensure Survey of the Respondent facility. 10. That based upon observation, interview and the review of records, Respondent intentionally or negligently failed to provide adequate and appropriate health care and protective and support services consistent with the resident care plan in its failure to assess and supervise one (1) resident for safe smoking, one (1) resident elopement behaviors, and one (1) resident for wound care assessment and treatment, the same being contrary to law. 11. That Petitioner’s representative observed, on April 11, 2008 at 9:30 AM, while standing in the front entrance hall of the facility with the Administrator, the following: a. That outside the front glass doors was resident number three (3); b. The resident was sleeping, unattended, in the resident’s wheelchair on the front walkway of the facility; c. The Resident was noted to be a bilateral amputee; d. As the Petitioner’s representative and the Administrator approached resident number three (3), a lit cigarette was observed smoldering on a towel covering the resident's left stump; e. A hole approximately one inch (1’’) in diameter was burned into the towel and the edges of the fabric were glowing red; f. Smoke was actively rising from the towel; g. A lighter was sitting on the towel near the smoldering area; h. Resident number three (3) awoke and started patting the smoldering area by hand; i. A small flame arose from the area and resident number three (3) poured water onto the towel to extinguish the flame; j. The stump of resident number three (3), which was located immediately underneath the burned area, was wrapped in gauze bandages; k. Resident number three (3) informed the Petitioner’s representative that the resident was not injured and stated, "That's my fault." I. Respondent’s Administrator stated, "I'll have someone come out and assess {the resident]." m. Respondent’s Administrator confirmed that the facility did not provide any supervision for residents smoking in the front of the building. 12. That the Petitioner’s representative interviewed Respondent’s Unit Manager regarding resident number three (3) who indicated: a. That the resident had been examined and had not been injured; b. That the resident had been assessed as a safe smoker and was allowed to smoke independently. 13. That Petitioner’s representative reviewed Respondent’s records regarding resident number three (3) with Respondent’s Unit Manager and MDS/Care Plan Coordinator noting as follows: a. A Smoking Safety Screen, dated February 5, 2008 was in the record; b. The directions on the form state to provide comments to all "No" screening answers; c. The first five of the screening questions are answered as "Yes." d. The last screening question, “Resident /patierit does not exhibit side effects from medications including sedation, drowsiness or dizziness”, is answered as "No." e. The comment section for this answer is completely blank; f. The Review Section of the Smoking Safety Screen form contains two parts; g. One part pertains if all of the screening questions have been answered as "Yes." h. The second part, which states to select the type of supervision required and explain, pertains if any of the screening questions have been answered as "No." i. This second part of the form is completely blank; j. Under the "Yes" answered to all questions section, the statement "Able to smoke independently" is checked. 14. That during the review referenced above, Respondent’s Unit Manager indicated that the Smoking Safety Screen completed for resident number three (3) was not completed correctly and that the resident should not have been assessed as an independent smoker. 15. That Respondent’s Unit Manager and Care Plan Coordinator confirmed that the February 5, 2008 smoking Safety Screen document far resident number three (3) was the only screening document completed by the Respondent for the resident. 16. That the Petitioner’s representative reviewed Respondent’s nurse’s notes during the survey and noted the following: a. March 2, 2008, 10:00 AM - Smokes outside by [self]; b. March 25, 2008, 12:30 AM - When this nurse was leaving facility to go home in evening it was noted by this writer that this Resident was sitting outside, in front of the facility door, sleeping with a lighted cigarette in [his/he]r mouth. This writer took the cigarette out of [his/her] mouth and woke Resident up. Counseled Resident on smoking when [he/she] is sleeping and the danger that could happen with a lighted cigarette. Resident refused to go in facility and go to bed. 17. That Petitioner’s representative interviewed Respondent’s Unit Manager and Care Plan Coordinator both agreed that Nursing Notes for resident number three (3) clearly document that the resident was previously. found outside, alone and asleep with a lit cigarette, representing a significant, life-threatening safety risk. 18. That Respondent was unable to provide the Petitioner with documentation that an incident report was submitted or an investigation conducted after resident number three (3) was found asleep, smoking and unsupervised on March 25, 2008 and the facility's Incident Log for March 2008 fails to contain any mention of the event. 19. That Petitioner’s representative reviewed Respondent’s records containing the Minimum Data Set Assessment(s) for resident number three (3)and noted: a. The initial assessment, dated February 18, 2008, documents that the resident is able to make consistent/reasonable decisions, has no periods of lethargy, experiences no alteration in mental function over the course of the day, and has no condition which makes the resident's cognitive or behavioral patterns unstable; b. Absent from Respondent’s records was any indicia that a subsequent or significant change assessment despite the documented incident of March 25, 2007; c. That absent from Respondent’s records was any indication that Respondent re-assessed the resident’s cognitive status, decision making ability, or other indications which would effect the resident’s ability to smoke safely and without supervision despite the documented incident of March 25, 2007. 20. That the Petitioner’s representative asked for the care plan for the smoking behavior of resident number three (3) and Respondent’s Care Plan Coordinator provided a Care Plan for the problem of Resident Can Establish his/her Goals and said, "That's his/her smoking care plan." 21. That listed approaches include: Allow resident to establish his/her goals and routine daily as tolerated; Cue for safety as needed; and Involve and encourage resident to participate in activity of choice as tolerated and in his/her activities of daily living care plan as needed. 22. That Petitioner’s representative reviewed the presented care plan with Respondent’s Unit Manager and the Care Plan Coordinator who both agreed that the above care plan was not an individualized care plan for safe smoking and confirmed that the resident number three (3) did not have a care plan for safe smoking and that the interdisciplinary team failed to create a Care Plan for Safe Smoking even after resident number three (3) was found outside at 12:30 AM on March 25, 2008, asleep and unsupervised with a lit cigarette in the resident’s mouth. 23. That Petitioner’s representative reviewed Respondent’s Medication Administration Record for resident number three (3) and noted that the resident was receiving Methadone, a Fentanyl patch, Amitriptyline, Percocet and Ambien. 24. That Respondent’s Unit Manager and Care Plan Coordinator agreed that all of the above medications can have sedating effects. 25. That the Petitioner’s representative reviewed Respondent’s Treatment Administration Record (TAR) for resident number three (3) and noted that the resident had developed a pressure sore on his/her left stump which was being treated with Accuzyme ointment and dressed in gauze bandages. 26. That Respondent’s Unit Manager and Care Plan Coordinator agreed that the ointment and the gauze bandages were highly flammable material. © 27. That Petitioner’s representative reviewed Respondent’s facility policy on Smoking which provided as follows: Residents/patients who smoke will be evaluated for smoking safety. If evaluated to be a safe, independent smoker, the facility will assist the resident/patient in securing smoking materials and provide education on not assisting other residents to smoke. Ifa resident/patient requires supervision with smoking, smoking materials will be secured by the facility. Residents/patients that are unsafe to smoke with reasonable accommodations or those who fail to adhere to the _ smoking policy will not be allowed to smoke. 28. That the procedures include: a. Develop an individualized smoking plan with interventions that address the risks factors of unsafe smoking. Risk factors may include, but are not limited to: Cognitive impairment Diagnosis of dementia or related disease Physical limitations Medication side effects Factors that impact safety awareness b. Re-evaluate the resident/patient for smoking safety quarterly and with change in clinical condition. c. Monitor the environment for unsecured smoking materials. d. Intervene and report any observed unsafe smoking. 29. That Petitioner’s representative reviewed Respondent’s facility policy on Neglect which defines neglect as the failure to provide goods and services necessary to avoid physical harm. 30. That the above reflects Respondent intentional or negligent failure to provide adequate and appropriate health care and protective and support services consistent with the resident care plan in its failure to: a. Adequately care plan the needs of resident three (3) relating to smoking; b. Re-evaluate the care and supervision of care and services required by resident three (3) after the resident was identified in March 2008 participating in unsafe smoking behaviors; Implement its policy and procedure related to smoking behaviors of resident number three (3); Implement its policy and procedure related to the prevention of neglect related to the smoking behaviors of resident number three (3). 31. That Petitioner’s representative reviewed Respondent’s records related to resident number thirty-seven (37) during the survey and noted as follows: a. b. That the resident has resided at the facility since January 24, 2003; That the resident has pertinent diagnoses of Psychosis, Alzheimer's disease, and Anxiety disorder; That a minimum date set assessment dated December 27, 2007, documented that the resident has severe cognitive impairment with long term and short- term memory problems; That a Resident Assessment Protocol (RAP) summary was also triggered due to "resident has a history of falls and will always need supervision" That a Nursing care plan was developed on January 4, 2008 for "risk for further elopement related to trying to get out of facility, would open exit door and sets the alarm." That the listed approaches included: a. Observe whereabouts at all times; b. Wander guard; c. Check for placement and function; and d. Redirect resident when going out of facility. . That Nurses' notes dated January 27, 2008 at 7:05 PM document that the facility received a call from an unknown motorist that the resident was seen walking on the street outside the facility and also documented that staff found the resident on the street approximately half mile from the facility and returned the resident to the facility by car; . That the note further documented that upon return to the facility, the resident's wanderguard failed to alarm at the front door even though the front door alarm was functioning, that the wanderguard was replaced, and then found to be fully functioning; That a late entry nurses’ note of January 27, 2008 at 3PM, documented "wander guard in place and functioning well." That there was no documentation that the resident was examined for any injuries; ._ That an updated approach to the resident's care plan was dated January 28, 2008 requiring "resident will be closely monitored 4:30 PM -6:30 PM every 15 minutes". That the Respondent facility is located next to a very busy north to south roadway, which is currently under expansion construction, and intersects one block away from the facility with a very busy east to west expressway leading to the international airport 3 miles away. That Petitioner’s representative interviewed Respondent’s Risk Manager and Director of Nursing (DON) related to resident number thirty-seven (37) who indicated as follows: a. As to the circumstances of the resident's elopement, written documents from the facility's investigation were reviewed including statements from staff members that the resident was not observed in the facility between 5:30 PM and the time the elopement was discovered at 7:05 PM.; b. The Risk Manager stated that the wander guard was not working because it had expired and should have been replaced; c. That the Risk Manager also stated that there was a process in place to check the wanderguard, but no log of when it expired, which was 90 days after activation. 34. That Petitioner’s representative interviewed residents numbered thirty-one (31) and twenty-four (24) during the survey who indicated that they knew the code for disabling the wanderguard alarm and gave the correct combination in the presence of the facility's Administrator. 35. That Petitioner’s representative interviewed Respondent’s administrator thereafter who stated that the code had been changed and a new procedure was being put in place to limit knowledge of the code to essential facility staff. 36. That at 5 PM on April 11, 2008, Petitioner’s representative asked the Administrator for a demonstration of staff response to the wanderguard alarm and the following occurred: a. The administrator triggered the front entrance to the facility; b. Staff members including, the Unit Manager, LPN, Human Resources Director, Assistant Director of Nursing and Unit Secretary were seated at the nurses’ station; c. There was no immediate staff response to the alarm; d. In interview, the Unit Manager stated, "We knew it was only the Administrator doing something with the door.” 37. That the above reflects Respondent’s intentional or negligent failure to provide adequate and appropriate health care and protective and support services consistent with the resident care 11 plan in its failure to: a. Ensure that its wandeguard system is tested to prevent such devices are active and effective to accomplish its intended purpose; Ensure that the ability to disarm its wanderguard system is maintained in such a manner that its effectiveness is maintained; Ensure that staff timely respond to the wanderguard system alarm; Ensure that interventions are instituted to address elopement activity to prevent the recurrence of said behaviors. 38. That Petitioner’s representative reviewed Respondent’s records regarding resident number three (3) during the survey and noted as follows: a. b. The resident is a bilateral amputee; That a Skin Grid Assessments at admission, February 5, 2008, document the presence of the following pressure sores: a. Coccyx - Stage IV; b. Left Stump - Stage Il; c. Right Buttock - Stage III; d. Right Ischium Outer Area - Stage III; e. Right Inner Ischium - Stage III. That a physician's order dated February 5, 2008 at 2210 required “Wound evaluation and treatment.” That absent from the record was any indication that the ordered Wound evaluation was ever obtained for the resident; That a Skin Grid Assessments dated February 16, 2008, document the continued presence of the following pressure sores: 12 a. Coccyx - Stage IV; b. Left Stump - Stage II; c. Right Buttock - Stage III; d. Right Ischium Outer Area - Stage III; e. Right Inner Ischium - Stage III. That a second physician's order dated February 15, 2008 directs as follows: Wound Care Consult; . That absent from the record was any indication that the second ordered Wound evaluation was ever obtained for the resident; . That Skin Grid Assessments document that the wound on the left stump was healed as of March 16, 2008, but that the resident developed a new wound on the left anterior stump as of April 7, 2008; That Skin Grid Assessments dated April 8, 2008 document the presence of the following pressure sores: a. Coccyx - Stage IV - 6 cm long x 7 cm wide x 3.5 cm deep; b. Left Stump - Stage II - 3 cm long x 4 cm wide x 0 cm deep; c. Right Buttock - Stage III - 6 cm long x 3.5 cm wide x 0 cm deep; d. Right Ischium Outer Area - Stage III - 2 cm long x 4.5 cm wide x 0 cm deep; e. Right Inner Ischium - Stage III - 4 cm long x 2.5 cm wide x 0 cm deep. That absent from the resident’s Treatment Administration Record (TAR) or on any Skin Grid Assessments for the resident from admission through April 8, 2008, is any indication that the resident suffered from a wound or wounds to the left posterior thigh. 39. That Petitioner’s representative observed Respondent’s wound care to resident number three (3) on April 9, 2008 at 9:35 AM, and noted as follows: a. The Wound Care Nurse provide wound care to 3 open areas on the resident's posterior left thigh; b. The Wound Care Nurse cleansed the 3 open areas with saline, applied Hydrogel to the center of a gauze dressing, and covered the wounds with the dressing; c. During the Wound Care Observation, the Wound Care Nurse informed the Surveyor that the Resident was not being followed by the Wound Care Doctor; d. The Wound Care Nurse said, "We tried to get a consult with the Wound Care Doctor but the insurance company denied [the resident].” e. The Wound Care Nurse informed the Surveyor that since the insurance company would not pay for the resident to be seen by a wound care specialist, the resident was being followed by the resident’s "regular doctor." f. The Wound Care Nurse confirmed that the Resident's "regular doctor" was not a wound care specialist; g. That the Wound Care Nurse confirmed that the 3 open areas on the Resident's left posterior thigh were new wounds and were not documented on the Resident's Skin Grid Assessment or TAR; h. When asked if he obtained an order from the physician for Hydrogel prior to treating the wounds the Nurse replied, "I'm gonna write an order for that." i. When asked if he, the Wound Care Nurse was writing orders for wound care treatment versus obtaining an order from a physician, the Wound Care Nurse confirmed that he, not the physician, wrote the order; j. He said, "The doctor tells me to write in what I feel is appropriate. He said to write in what you [the Wound Care Nurse] want and I'll sign it.” 40. That Petitioner’s representative reviewed the Resident's Care Plan with the Wound Care Nurse and noted as follows: a. The Care Plan lists the following problem: Resident was admitted here with multiple decubs - Stage IV sacrum, Stage III right buttocks, right inner ischium, right outer ischium, left ischium/buttock. Left stump Stage II; b. At risk for further breakdown related to Paraplegia; c. Approaches are listed as: Weekly skin check; Observe wounds for intact dressing; Medicate for pain prior to treatment; Refer to doctor if treatment is not effective; Assist to reposition resident every two hours as tolerated; Give meds to aid in wound healing; Pressure-relieving mattress in bed: Check lab work; Encourage to consume all meals and fluids on tray as tolerated; Maintain foley care as indicated; Colostomy care as indicated; Encourage compliance with repositioning, treatment; and Wound Care consult as ordered by the doctor; d. Upon review, the Wound Care Nurse agreed that the approaches listed were non-specific; e. The Wound Care Nurse stated, "Sometimes the treatment is written and sometimes it's not. It's not written on [the resident’s care plan]." f. The Wound Care Nurse also agreed that the resident never received a Wound Care Consult even through it is written on the resident's Care Plan and even through the physician wrote a February 5, 2008 order for a Wound Evaluation 15 and Treatment and a February 15, 2008 order for a Wound Care Consult. 41. That Petitioner’s representative reviewed the clinical record of resident number three (3) with Respondent’s Wound Care Nurse and the Director of Nursing (DON) and the DON indicated as follows: a. The Wound Care Physician sends out Physician's Assistants to see the residents at the facility; b. The Physician Assistant had not seen resident number three (3) citing ",..Something about insurance." c. The DON agreed that the Resident had a February 5, 2008 Physician's Order for a Wound Evaluation and Treatment and a February 15, 2008 Physician's Order for a Wound Care Consult; d. The DON was unable to provide the Surveyor with documentation that the resident ever received a Wound Care Consultation. 42. That the facility's policy on Neglect defines neglect as the failure to provide goods and services necessary to avoid physical harm. 43. That the above reflects Respondent’s intentional or negligent failure to provide adequate and appropriate health care and protective and support services consistent with the resident care plan in its failure to provide ordered wound care assessments, the failure to assess and document known wounds, and the failure to obtain treatment orders for wound care. 44. The Agency determined that this deficient practice presented a situation in which immediate corrective action was necessary because Respondent’s non-compliance had caused, or was likely to cause, serious injury, harm, impairment, or death to a resident receiving care in Respondent's facility and cited Respondent with an isolated State Class I deficiency. 45. The Agency provided Respondent with the mandatory correction date for this deficient practice of April 11, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $10,000.00 against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(a) and 400.102, Florida Statutes (2007). COUNT II 46. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. | 47. That pursuant to Florida law, all licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident has the right to present grievances on behalf of himself or herself or others to the staff or administrator of the facility, to governmental officials, or to any other person; to recommend changes in policies and services to facility personnel; and to join with other residents or individuals within or outside the facility to work for improvements in resident care, free from restraint, interference, coercion, discrimination, or reprisal. This right includes access to ombudsmen and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. The right also includes the right to prompt efforts by the facility to resolve resident grievances, including grievances with respect to the behavior of other residents... Section 400.022(1)(d), Florida Statutes (2007). 48. That on April 8-11, 2008, the Agency conducted a Biennial Licensure Survey of the Respondent facility. 49. That based upon observation, interview and the review of records, Respondent failed to ensure that eleven (11) of thirty-seven (37) active sampled residents were free of coercion, discrimination, and reprisal from the Respondent, by and through its agents, when exercising resident rights, the same being contrary to law. 50. That Petitioner’s representative conducted a group interview with residents of Respondent's facility on April 9, 2008 at 9:35 AM during which the following was disclosed: a. Six (6) of sixteen (16) residents participating stated that they were not comfortable with voicing grievances to the facility; b. The residents believed that the Certified Nursing Assistants (CNAs) would retaliate against them; c. In the past, the CNAs have told each other the identity of any resident who filed a grievance and there was a resulting decline in the care provided by the CNA to that resident; d. One resident stated, "If you complain you could get kicked out." e. Twelve (12) of sixteen (16) residents indicated that they were usually ignored when they attempted to file a grievance, especially to the weekend supervisor. 51. That Petitioner’s representative confidentially interviewed resident number one (1) on April 8 and 9, 2008 who indicated as follows: a. Facility staff does not resolve the resident’s concerns and the resident feels like they do not care for the resident’s feelings; b. The resident's family was present and agreed with resident's comments, and added that the resident is a human being and should be treated like one; c. The resident is afraid to report an issue or grievance with facility staff regarding the resident’s roommates, call light response to pain, and other concerns; d. The resident is afraid of the resident’s roommate and afraid that the facility would tell the roommate about the resident’s concerns and that the roommate would retaliate against the resident; | e. The roommate's behavior was verbally abusive and hurtful at times but the resident felt that the resident could not inform the facility. 52. That Petitioner’s representative confidentially interviewed resident number one (1) again on April 10, 2008 who indicated as follows: a. "Why did you tell the Director of Nursing and others?" b. The resident stated that the resident thought everything was confidential and now the facility knows that the resident is a complainer and will not like that; c. The resident’s roommate will know and the facility can not protect the resident and this incidence has been bothering the resident all day long. 53. That Petitioner’s representative noted the demeanor of resident number one (1) while interviewing the resident: | a. On April 8, 2008, at approximately 10:45 AM and 5:20 PM, the resident was a pleasant resident who was laughing, happy and in a good mood with no behaviors present; b. On April 9, 2008 at 1:30 PM, the resident was speaking in low tones during the interview and hesitating to explain further details about issues and concerns; c. On April 10, 2008 at 11:45 AM, the resident's behavior had changed, the resident was not smiling, was more subdued than usual, and was angry as well; d. On April 10, 2008 at 2:58 PM, the resident was upset at the beginning, but smiling and pleasant after the interview. 54. That Petitioner’s representative reviewed Respondent’s records regarding resident number one (1) ad noted as follows: a. The resident had psychiatric behavior or diagnosis such as repetitive crying, mental function varies and resists care; b. The resident receives one psychotropic drug for depression; c. A MDS (Minimum Data Set) significant change assessment dated October 16, 2007, along with a quarterly comparison dated March 31, 2008, assessed the resident's cognitive status as "modified independence" with no short and long term memory loss. 55. That during group meetings on April 8 and 9, 2008, and interview of April 10, 2008, resident number two (2) indicated as follows: a. That they do not report issues or grievances with the facility anymore; b. That when they complained about a Certified Nursing Assistant (CNA), the CNA number one (1) told the resident to pack the resident’s bags and find another facility; c. That CNAs should not treat residents like this and was shocked by the CNAs actions; d. That CNA number one (1) was the CNA who told the resident to pack bags and that the resident could leave the facility; e. That certain staff during the week and weekends are rude to the residents; f. The resident is sick of complaining because you will get in trouble. 20 56. That Petitioner’s representative reviewed Respondent’s records regarding resident number two (2) ad noted as follows: a. The resident has discernable psychiatric behaviors or diagnoses such as persistent anger, verbally abusive, and resists care; b. The resident is receiving psychotropic drugs for insomnia and anxiety; c. The MDS (Minimum Data Set) initial assessment dated February 28, 2008 assessed the resident's cognitive status as "modified independence.” 57. That That Petitioner’s representative reviewed Respondent’s Grievance Quality Assurance Log for February 2008 and noted that resident number two (2) filed a grievance regarding staff concerns and as the resolution from the Director of Nursing (DON) and Housekeeping Supervisor the personal mobile number of the DON was given to the resident and that nursing and housekeeping will follow up. 58. That Petitioner’s representative interviewed the family of resident number three (3) on April 11, 2008 who indicated as follows: a. That the resident does not speak English; b. That the resident does not complain to the facility because the resident is afraid of the staff; c. That each time the resident has complained in the past, the staff have treated the resident differently; d. That the family members make complaints for their family member and feel like staff gets upset instead of listening to their concerns. 59. That Petitioner’s representative reviewed Respondent’s records regarding resident number three (3) and noted as follows: 21 a. The resident had noted psychiatric behavior or diagnosis such as mental function varies day to day; The resident currently receives no psychotropic drugs; The MDS (Minimum Data Set) significant change assessment dated November 3, 2007 and a quarterly comparison dated February 18, 2008 assessed the resident's cognitive status as "moderately impaired" with short and long term memory loss. 60. That Petitioner’s representative confidentially interviewed resident number four (4) during the survey who indicated as follows: a. b. April 8 - The resident wanted to speak with a surveyor about private concerns; The resident would not state what they were because facility staff was present on the initial tour; . April 9 - The resident was having issues with a staff member and spoke with the Administrator and DON about it around the end of March 2008; April 10 — The resident spoke with Administrator, DON, Weekend Supervisor and Unit Manager regarding an ongoing issue with CNA number one (1); That in late March that the resident needed a Hoyer lift to get out of bed and CNA number one (1) replied back, if you can get yourself ready why don't you use the Hoyer lift by yourself; The same CNA after the noon meal on April 10, 2008 mumbled that the resident was fat as the resident walked down the hallway; The resident does not understand why CNA number one (1) keeps on bothering the resident and why the facility does not help with the resident’s concerns.; 22 . The resident informed the weekend supervisor on April 5, 2008 at approximately 6:30 AM that transportation was coming to pick the resident up at 8 AM; The resident was ready at 7 AM and was waiting for a CNA to put the resident in a Hoyer lift and spoke with the weekend supervisor three times about getting out of bed; The weekend supervisor sent a CNA at 8 AM and told the resident “...you better hurry up or the van will leave..” . The resident asked the weekend supervisor why the CNA was sent at 8 AM to help the resident out of bed and she stated it was not important because it was not a doctor's visit and they should make the transportation come later than 8 AM; The weekend supervisor constantly makes the resident feel unimportant and will not report it because how the facility dealt with the resident’s concerns about CNA number one (1); . That there was an issue between the resident’s roommates and that the Risk Manager (RM) came into their room on April 10, 2008 and told them that a CNA was assigned to their room for them; . CNA number one (1) was assigned to the room and the resident spoke with the RM and informed her that the resident was having problems with CNA number one (1); . The RM left the room and CNA number one (1) came back and stated “Why are you being vindictive to me and telling people things that are not true?” and left; 23 Another CNA came into the room and asked the resident why the resident was talking about the CNA to the RM; The resident responded “I was not talking about you instead I was talking about [CNA number one (1)]; The RM came back into the room and stated a CNA was assigned to their room to watch the resident and the roommates and did not know how long it would last; The resident stated that the facility is treating residents like animals and all we did is yell at each other; CNA number one (1) came back into her room after the RM left and felt that the CNA came in on purpose to intimidate her. 61. That Petitioner’s representative reviewed Respondent’s records regarding resident number four (4) and noted as follows: a. b. The resident had no discernable psychiatric behavior or diagnosis; The resident currently received an as needed psychotropic drug for anxiety; The MDS (Minimum Data Set) significant change assessment dated July 31, 20/07, along with a quarterly comparison dated January 22, 2008, assessed the resident's cognitive status as "independent" with no short and long term memory loss. 62. That Petitioner’s representative reviewed Respondent’s Grievance Quality Assurance Log for March 2008 and noted that resident number four (4) filed a grievance on March 24, 2008 regarding staff concerns and a resolution dated March 24, 2008 from the Administrator states that CNA will not be providing care to resident and it was resolved. 24 63. That Petitioner’s representative reviewed Respondent’s nursing staff daily assignment sheet and accountability sheet and daily nursing schedules for March 24 through April 10, 2008 and noted the following CAN assignments to care for resident number four (4): a. 3/24/08 - Monday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. b. 3/25/08 - Tuesday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. c. 3/26/08 - Wednesday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. d. 3/26/08 [sic] - Thursday - CNA number one (1)1 was assigned to the resident during the 7-7:30 shift. : e. 3/31/08 - Monday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. f. 4/1/08 - Tuesday - CNA number one (1) was assigned to the resident during the 7-3:30 shift and assigned to the desk on the 3-11:30 shift. g. 4/3/08 - Thursday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. h. 4/5/08 - Saturday - CNA number one (1) was assigned to the resident during the 7-3:30 shift. i. 4/10/08 - Thursday - CNA number one (1) worked during the 7-3:30 shift as a floater and one of her assignments was in same geographic location of the resident's room. 64. That Petitioner’s representative interviewed Respondent’s DON on April 10, 2008 requesting copies of the CNA assignment sheets for January through April 2008 in addition to the daily nursing schedules to which she responded that the CNAs sign the daily nursing schedules at the beginning of each shift and will match up to the CNA assignment sheets and if'a CNA was not listed on the CNA assignment sheet, the CNA might have been a floater, helped with the desk, or taken residents to their appointments. 65. That Petitioner’s representative confidentially interviewed resident number five (5) during and after group meetings who indicated as follows: a, The resident can not express concerns, ideas, or suggestions with the facility without being reprised by staff; 25 . Certain staff members ignore the resident and you are treated like a child and have to put up with it; otherwise, you get in trouble; . That every time the resident expressed concerns, either the nursing staff or facility leadership treat the resident differently; . This is not right and the resident does not understand why it keeps on happening; . The resident used to help sort the mail and pass it out to the residents and this brought the resident a sense of purpose and happiness; The facility informed the resident that the resident could no longer pass out the mail because the resident was stealing or losing the mail; . The resident complained to the facility about some concerns and right after that lost the privilege to pass out mail; . The weekend supervisor was mean to the resident and other residents; The weekend supervisor would ignore them and their concerns and never stood up for the residents and instead stood up for the employees that the residents spoke about; The resident saw facility leadership walk past the door and stated that they would get in trouble for speaking to the surveyor and facility leadership would remember their faces; . That is why some people would not raise their hands in the group meetings with surveyors because they were afraid the Administrator, DON, Social Services Director or Risk Manager would see and they would be in trouble; That at approximately 7:52 PM on April 10, 2008, when a resident came into the dining room who seemed confused and then walked onto the patio area, 26 the resident stated that the resident that just walked by had attacked the resident the previous night; . The resident was watching TV with other residents in the late evening and the other resident approached the resident and hit their fists on the table and started to get mad and then picked a cup of juice and threw it in the resident’s face; The same resident tried to pick up a chair and throw it at the resident and a nurse intervened and took the resident back to the resident’s room; The resident is still afraid of this resident and feels like the facility has done nothing to protect the resident’s friends and that they do not care; The resident expressed on April 11 in the afternoon that the resident feels uneasy because the resident is still walking around the facility; The resident feels like the Administrator, DON and Social Services Director do not care about the resident’s safety and the resident can not complain because they will listen less. 66. That Petitioner’s representative reviewed Respondent’s records regarding resident number five (5) and noted as follows: a. The resident has psychiatric behavior or diagnosis such as persistent anger, sad facial expressions, unrealistic fears and crying; The resident receives one psychotropic drug; The MDS (Minimum Data Set) annual assessment along with a quarterly comparison assessed the resident's cognitive status as "modified independence" with short and no long term memory loss. 27 67. That Petitioner’s representative interviewed Respondent’s Activities Assistant on April 10, 2008 who indicated as follows: a. The Activities Department is responsible for passing out mail to the residents; b. Resident number five (5) used to help her pass out the mail; c. She was informed by facility leadership that the resident was stealing from the mail; d. She and the resident used to pass mail out together and she never saw the resident take anything from the mail; e. She could not understand why they made the resident stop passing out the mail because the resident used to love it. 68. That Petitioner’s representative confidentially interviewed resident number six (6) on April 11, 2008 who indicated as follows: a. The resident hates to make complaints with facility staff because the staff treats you differently; b. The resident complained about staff taking too long to help the resident get to the bathroom; c. The CNAs took longer and one of them told the resident that the resident should have not gotten them in trouble. 69. That Petitioner’s representative confidentially interviewed resident number seven (7) during the survey who indicated as follows: a. The resident had issues with the weekend supervisor; b. The weekend supervisor does not listen to resident concerns and always sticks up for the staff over the residents; 28 That if you complain about your CNA, the weekend supervisor tells them and then they treat you differently; The new Administrator listens to their concerns most of the time but on the weekends it is different; Residents do not like a certain CNA and feel that they can not express their feelings and concerns with the weekend supervisor; CNA number one (1) used to take care of the resident and once told the resident to stay soiled because the residents were complaining about her; The resident is having an issue with another resident; The resident spoke with the Administrator, DON, Social Services Director and Risk Manager and they are aware of it, but feels it is going back and forth with no resolution; . If the resident keeps complaining, the resident is afraid the facility will transfer the resident to another facility. 70. That Petitioner’s representative reviewed Respondent’s records regarding resident number seven (7) and noted as follows: a. The resident had psychiatric behavior or diagnosis such as sad face, persistent anger, crying, repetitive health complaints and repetitive anxious complaints; . The resident receives psychotropic drugs for anxiety and depression; The MDS (Minimum Data Set) annual assessment dated August 3, 2007 along with a quarterly comparison dated January 28, 2008 assessed the resident's cognitive status as "independent" with no short and long term memory loss. 71. That Petitioner’s representative confidentially interviewed resident number eight (8) on April 11, 2008 who indicated as follows: 29 a. The resident is having a problem with another resident; b. Respondent’s Administrator, DON, Social Services Director and Risk Manager are aware of the concern and had meetings about the concerns; c. That during the last meeting, the Social Services Director (SSD) told the resident that if the situation between the two residents was not resolved then one of them would be leaving; d. The SSD looked at the resident and the resident did not appreciate that the resident was threatened; e. The other resident is verbally abusive to the resident and is constantly talking to others about the resident; f. It is driving the resident “nuts” and the resident can not ignore someone that is running their mouth; g. The resident was crying over the weekend and can not stand it anymore and does not want to leave the facility; h. The weekend supervisor has an attitude with everyone and when you tell her something, she pretends that she is busy or ignores you; i, The weekends are the worst between the resident and the other resident; j. The resident has stopped complaining because the weekend supervisor changes the resident’s concerns and makes the facility believe the resident is the trouble maker and does not want to get in trouble anymore. 72. That Petitioner’s representative observed resident number eight (8) during the survey and noted: a. April 8, 2008 t 4;00PM at the group meeting — the resident was outgoing, happy, and spoke without hesitation; 30 b. April 9, 2008 at approximately 9:45 AM — the resident was outgoing, happy and spoke without hesitation; c. April 11, 2008 at approximately 1:28 PM - the resident's facial expressions were sad and waited for the surveyor for over an hour, displaying verbally and non-verbally communication such as sighing, grimacing, wringing of the hands, and other behaviors that the resident was anxious to speak with someone. 73. That Petitioner’s representative reviewed Respondent’s records regarding resident number eight (8) and noted as follows: a. The resident had psychiatric behavior or diagnosis such as verbally abusive; b. The resident received one psychotropic drug for depression; c. The MDS (Minimum Data Set) annual assessment dated September 16, 2007 along with a quarterly comparison dated March 13, 2008 assessed the resident's cognitive status as "independent" with no short and long term memory loss. 74. That Petitioner’s representative confidentially interviewed residents numbered nine (9) and ten (10) during the survey who indicated as follows: a. The residents had concerns about telling staff their concerns because the staff treated them differently after they expressed their concerns; b. They asked the surveyor to close the door before speaking about their concerns; c. Resident number ten (10) needed help getting in and out of bed; d. They expressed their concerns with facility leadership about the staff treating them differently; 31 They no longer complain because of fear of staff ignoring them or treating them differently; Resident number ten (10) did not want the surveyor to tell the facility about their concerns because the weekend was coming up; The weekend supervisor can be mean at times and they no longer tell her any concerns they have. 75. That Petitioner’s representative observed the demeanor of resident number ten (10) on April 11, 2008 at approximately 4:55 PM and noted that the resident seemed anxious from speaking and kept saying everything is “OK,” however the resident's behavior changed towards the end of the interview and the resident was speaking in a low voice and kept looking around the room with facial expressions happy one moment and sad the next. 76. That Petitioner’s representative reviewed Respondent’s records regarding resident number nine (9) and noted as follows: a. b. The resident has no psychiatric behavior or diagnosis; The resident is not receiving any psychotropic drugs; The MDS (Minimum Data Set) annual assessment dated September 16, 2007, along with a quarterly comparison dated February 15, 2008, assessed the resident's cognitive status as "independent" with no short and long term memory loss. 77. That Petitioner’s representative reviewed Respondent’s records regarding resident number ten (10) and noted as follows: a. b. The resident has psychiatric behaviors or diagnoses such as mental function varies, repetitive anxious complaints and resists care; The resident is receiving one psychotropic drug for anxiety; 32 c The MDS (Minimum Data Set) annual assessment dated June 22, 2007, along with a quarterly comparison dated February 15, 2008 assessed the resident's cognitive status as "modified independence" with no short and long term memory loss. 78. That Petitioner’s representative confidentially interviewed resident number eleven (11) on April 10, 2008 who indicated as follows: a. The DON approached him earlier that day and told the resident that the resident was not allowed to speak to surveyors anymore; The resident feels the DON does not take the resident seriously because of the resident’s diagnoses; The DON never listens to the resident anymore; The resident is having issues with a roommate and the facility does not listen to the resident and the resident does not like to stay in the room; The resident spoke with the SSD about this and she does not help to resolve their issues; When you ask the SSD, there is no interaction between her and the resident; The resident can not wait to leave the facility because the Administrator, DON and SSD does not help the resident out and only makes the resident feel insignificant. 79. That Petitioner’s representative reviewed Respondent’s records regarding resident number eleven (11) and noted as follows: a. b. The resident has psychiatric behaviors or diagnoses such as resists care; The resident receives psychotropics for schizophrenia and anxiety; 33 c. The MDS (Minimum Data Set) initial assessment dated December 26, 2007, along with a quarterly comparison dated March 25, 2008, assessed the resident's cognitive status as "independent" with no short and long term memory loss. 80. That during the interviews with residents numbered two (2), four (4), five (5), and eleven (11), Petitioner’s representative informed them about the Agency for Health Care Administration complaint hotline. 81. That the Petitioner’s representative and the residents went into the hallway across from the dining room to find the Agency for Health Care Administration complaint hotline posting and noted that Respondent did not post notifications with current client advocacy groups including the Agency for Health Care Administration complaint hotline. 82. That Petitioner’s representative reviewed the resident council minutes and noted that the Respondent had initiated a response to the resident council meeting from December 2007 where an immediate in-service training was conducted by the DON and given to all CNAs and Charge Nurses on all three shifts on December 12, 2007 with class attendance recorded at fifty-one (51) facility members including the DON. 83. That the agenda for the in-service training reveals the following were mentioned: "16. Negative comments (especially racial or demeaning) 45. Never say, It is not my patient; It is not my hall; Do it in your diaper; Wait till I come back from break, etc. 46. RESPECT - to get respect and trust you must give respect and trust. 48. There is no I in SUPPORT but there is a U in unemployment - meaning we are a team and without support to each other and a commitment to giving quality care in all areas when you are at work could and will lead to unemployment at Azalea Court." 84. That Petitioner’s representative reviewed the resident council minutes from January 2008 and noted the following: 34 "Administrator was invited and introduced to the resident council. The resident council made him aware of some of their concerns that we have been working on resolving and had not yet complety [sic] resolved to our councils satisfaction.” 85. That Respondent has a statutory duty to address resident grievances, to resolve said grievances, and to ensure that residents are free from interference, reprisal, coercion or reprisal. 86. That Respondent has intentionally or negligently failed to ensure that resident grievance rights are protected as mandated by law including, but not limited to: a. The failure to ensure that resolutions, such as not assigning certain personnel to work with specific residents, are implemented; b. The failure to address complaints of co-residents violent and abusive behaviors; c. The failure to ensure that its agents do not threaten or intimidate residents in response to a resident grievance; d. The assignment of staff to monitor residents who express grievances; e. The limitation of resident activities without heath or other causation or explanation. 87. | The Agency determined that this deficient practice presented a situation in which immediate corrective action was necessary because Respondent’s non-compliance had caused, or was likely to cause, serious injury, harm, impairment, or death to a resident receiving care in Respondent's facility and cited Respondent with a patterned State Class I deficiency. 88. The Agency provided Respondent with the mandatory correction date for this deficient practice of April 11, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $12,500.00 against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(a) and 400.102, Florida Statutes (2007). 35 COUNT IIT 89. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 90. That pursuant to Florida law, all licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following... The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety. Section 400.022(1)(0), Florida Statutes (2007): 91. That pursuant to Section 415.102, Florida Statutes (2007): (1) "Abuse" means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult's physical, mental, or emotional health. Abuse includes acts and omissions. (2) "Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a vulnerable adult. (4) "Caregiver" means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a vulnerable adult on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role 36 exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (8). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity. (5) "Deception" means a misrepresentation or concealment of a material fact relating to services rendered, disposition of property, or the use of property intended to benefit a vulnerable adult. (8) "Facility" means any location providing day or residential care or treatment for vulnerable adults. The term "facility" may include, but is not limited to, any hospital, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, residential facility licensed under chapter 393, adult day training center, or mental health treatment center. (15) "Neglect" means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term "neglect" also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death. 92. That on April 8-11, 2008, the Agency conducted a Biennial Licensure Survey of the Respondent facility. 93. That based upon observations and interview, Respondent failed to ensure that one (1) of thirty-seven (37) residents was free from verbal abuse, the same being contrary to law. 94. That Petitioner’s representative observed wound care of resident number four (4) on April 9, 2008 at 10:10 A.M. and noted as follows: a. Present was the wound care nurse, a certified nursing assistant, and two (2) surveyors observing the procedure; 37 b. That during the observation, resident number sixteen (16) called out, "You're a pain in the [expletive],” referring to resident number four (4); c. Resident number four (4) began crying and was asked if experiencing pain; d. The resident responded, “I'm not in pain, I'm upset. I can't believe people are so mean to me and rude." e. A short time later resident number six (6) entered the room; f. Together residents numbered six (6) and sixteen (16) were making comments about resident number four (4); g. That resident number six (6) stated “...We are awakened at 3:00 A.M. by staff who turn on the lights to take care of [resident number four (4)]” h. Resident number sixteen (16) stated, “I have been waiting two hours to get up. I always have to wait because of [resident number four (4)]” i. Resident number sixteen (16) told resident number four (4), "Shut up.” j. Resident number four (4) responded "No you shut up." k. The wound care nurse then stated, "That's enough." 1. The wound care nurse stated they, residents numbered six (6) and sixteen (16), are always teasing resident number four (4). 95. That approximately one (1) hour later, Petitioner’s representative asked Respondent’s tisk manager if she had started her investigation regarding the above described incident. 96. | That Respondent’s risk manager/abuse coordinator was unaware of the incident that had occurred during observation of the wound care and neither the certified nursing assistant nor the wound care nurse reported the incident as per facility policy titled: Prevention and reporting: Suspected Resident/Patient Abuse, Neglect, and/or Misappropriation of Property in which “Reporting” requires immediate reporting. 38 97. That Petitioner’s representative described the above observations to Respondent’s registered nurse consultant (RNC) who stated "That's verbal abuse" and the risk manager began her investigation. 98. That on April 10, 2008, a meeting with of Respondent’s administrator, Director of Nursing (DON), risk manager (RM), Nurse Consultant, and Social Worker (SW) was conducted regarding the incident of April 9, 2008. 99. That as a result of the above, the Respondent: a. Labeled resident number four (4) as the aggressor; b. Respondent’s social worker’s notes identified resident number four (4) as the aggressor; c. A behavior care plan for resident number four (4) was created by the social worker confirming that the victim was now the aggressor. d. The RNC returned to the conference room a short time later and stated that she just obtained a psychological consult for resident number four (4). . 100. That Petitioner’s representative interviewed Respondent’s social worker who indicated that she received her information on the incident from the risk manager and that the director of nursing had indicated that the resident is always crying. 101. That Petitioner’s representative reviewed the written statements made by the wound care nurse and the certified nursing assistant on April 9, 2008 and noted that the statements accurately reflect that resident number four (4) was verbally abused by resident number sixteen (16). 102. That Petitioner’s representative observed the demeanor of resident number four (4) during the survey and noted as follows: a. On April 8, 2008 at approximately 10:45 AM and 5:20 PM - a pleasant resident who was laughing, happy and in a good mood with no behaviors 39 present; b. On April 10, 2008 at 11:45 AM - the resident was not smiling, was more subdued than usual as well as angry; ¢. On April 10, 2008 at 2:58 PM - the resident was upset at the beginning but smiling and pleasant after the resident’s interview. 103. That the Petitioner’s representative interviewed resident number four (4) on April 10, 2008 at approximately 2:58 PM, and the resident indicated s follows; a. "Why did you tell the Director of Nursing (DON) and others?" b. “I thought everything was confidential and now the facility knows that I am a complainer and will not like that.” ¢. “My roommate will know and the facility can not protect me and this incident has been bothering me all day long.” d. No one really explained why we need a nurse in our room; e. The resident thanked the surveyor for talking with the resident and explaining some questions that they had. 104. That Respondent has a duty to protect resident from abuse or neglect. 105. That the above reflects that Respondent intentionally or negligently failed to protect resident from abuse and neglect including, but not limited to, the failure to: a. Ensure that its agents recognize incidents of verbal abuse; b.’ Ensure its agents promptly report incidents of abuse or neglect; c. Ensure that a thorough investigation is completed; d. Ensure that appropriate interventions are implemented 106. The Agency determined Respondent had not provided the necessary care and services and had compromised the resident's ability to maintain or reach his or her highest practicable 40 physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care and provision of services and cited this deficient practice as an isolated State Class II deficiency 107. That the Agency cited the Respondent for an Isolated Class II violation in accordance with Section 400.23(8)(b), Florida Statutes (2007). 108. The Agency provided Respondent with the mandatory correction date for this deficient practice of May 11, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $2,500.00 against Respondent, an assisted living facility in the State of Florida, pursuant to § 400.23(8)(b) and 400.102, Florida Statutes (2007). COUNT IV 109. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and the remainder of this Complaint as if fully recited herein. 110. That the Agency shall revoke any license issued under Part II of Chapter 400 Florida Statutes (2007) for the citation of two (2) Class I deficiencies arising from unrelated circumstances during the same survey or investigation. Section 400.121(3)(c) Florida Statutes (2007). 111. That the Respondent was cited with two (2) Class I deficiencies and one (1) Class II deficiency on an Agency survey completed April 11, 2008, the subject of this complaint 112. That in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (b) An intentional or negligent act materially affecting the health or safety of a client of the provider; (c) A violation of this part, authorizing statutes, or applicable rules. Section 408.815(1)(b) and (c), Florida Statutes. 41 113. That the Respondent’s deficient practices constitute grounds for revocation under law. 114. That based thereon, the Agency seeks the revocation of the Respondent’s licensure. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate a skilled nursing facility in the State of Florida, pursuant to §§ 400.121(3)(d), Florida Statutes (2007). COUNT V 115. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 116. Respondent has been cited for two (2) State Class I deficiencies and one (1) State Class II deficiency and therefore is subject to a six (6) month survey cycle for a period of two years and a survey fee of $6,000 pursuant to Section 400.19(3), Florida Statutes (2007). WHEREFORE, the Agency intends to impose a six (6) month survey cycle for a period of two years and impose a survey fee in the amount of $6,000.00 against Respondent, a skilled nursing facility in the State of Florida, pursuant to Section 400.19(3), Florida Statutes (2007 COUNT VI 117. The Agency re-alleges and incorporates Counts I through III as if fully set forth herein. 118. Based upon Respondent’s two cited State Class I deficiencies, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2007). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2007) commencing April 11, 2008 and ending May 22, 2008. 42 Respectfully submitted this / ay of July, 2008. Agency for Health Care Administration 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1525 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 shail 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 No. 7007 1490 0001 6979 1304 on July /' 2008 to Steven Ostreich, Administrator, Azalea Court, 5065 Wallis Road, West Palm ‘Beach, FL 33415 and by U.S. Mail to Corporation Service Company, Registered Agent, 1201 Hays Street, Tallahassee, FL, 32301-2525. ’ Copies furnished to: Steven Ostreich, Administrator Corporation Service Company Azalea Court Registered Agent 5065 Wailis Road 1201 Hays Street West Palm Beach, FL 33415 Tallahassee, FL 32301-2525 (U.S. Certified Mail) (U.S. Mail) 43 Field Office Manager Thomas J. Walsh II, Esq. Agency for Health Care Administration | Agency for Health Care Admin. 5150 Linton Blvd., Suite 500 525 Mirror Lake Drive, 330G Delray Beach, Florida 33484 St. Petersburg, Florida 33701 (U.S. Mail) (Interoffice) 44 to: Steven Ostreich, Hebicsin. 2otee Correct COMPLETE THIS SECTION ON DELIVERY

Docket for Case No: 08-003718