STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, O \- Petitioner, vs. Case No. 2008009074 CINDI J. THOMPSON, d/b/a KENDALL PLACE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (“Agency”) and files this Administrative Complaint against CINDI J. THOMPSON, d/b/a KENDALL PLACE (“Respondent” or “Respondent Facility”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2007), and alleges: NATURE OF THE ACTION This is an action to revoke the Respondent’s license to operate an assisted living facility and to impose an administrative fine in the sum of four thousand two hundred dollars ($4,200.00) based upon one (1) uncorrected State Class IV deficiency, four (4) uncorrected State Class III deficiencies, six (6) demonstrated patterns of deficiencies and an unpaid administrative fine. This action is taken pursuant to Sections 429.19(2)(c), 429.19(2)(d), 408.815(1)(d) and 408.831(1)(a), Florida Statutes (2007). JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, and 120.60, and Chapters 429, Part I, and 408, Part II, 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 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. 4. Respondent operates a 5-bed assisted living facility located at 6506 Tebbetts Drive, Orlando, Florida 32818, and is licensed as an assisted living facility, license number 10699. 5. At all times material to the allegations of this complaint, Respondent was a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes. COUNT TI 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth in this count. 7. Rule 58A-5.021(2), Florida Administrative Code, requires: (2) ACCOUNTING PROCEDURES. The facility shall maintain written business records using generally accepted accounting principles as defined in Rule 61H1- 20.007, F.A.C., which accurately reflect the facility’s assets and liabilities and income and expenses. Income from residents shall be identified by resident name in supporting documents, and income and expenses from other sources, such as from day care or interest on facility funds, shall be separately identified. 8. Rule 58A-5.024, Florida Administrative Code, requires: (4) RECORD INSPECTION. (a) All records required by this rule chapter shall be available for inspection at all times by staff of the agency, the department, the district long-term care ombudsman council, and the advocacy center for persons with disabilities. (d) The facility shall ensure the availability of records for inspection. 9. From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 9.1. Based on facility record review and interview the facility failed to maintain written business records that accurately reflect assets and liabilities, income and expenses and identify income from residents by resident name and source. 9.2. The assets and liability report available for review on 3/18/08 at approximately 11:30 AM revealed that the most recent report available was dated 4/8/06 and listed only the facility expenses; however, it did not list income from residents. 9.3. On March 18, 2008, the administrator designee told the Agency Surveyor that no other documentation was available, that the administrator was out of town, and that maybe the administrator had it with her. 10. The Agency determined that the above constitutes the grounds for the imposition of a Class IV deficiency pursuant to Section 429.19(2)(d), Florida Statutes (2007) in that it does not threaten the health, safety, or security of residents of the facility. 11. The Agency provided Respondent with a mandatory correction date of April 3, 2008. 12. On May 7, 2008, the Agency conducted a re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 12.1. Based on facility records review and interview the facility failed to maintain written business records that accurately reflect assets and liabilities, income and expenses and identify income from residents by resident name and source. 12.2. Facility financial records review on 5/7/08 at approximately 12:30 PM revealed that the records for 2005, 2006, and 2007 listed the facility's expenses but did not list the income from residents. 12.3. On May 7, 2008, the administrator told the Agency surveyor that the 2008 financial records were not available yet, that she had them at home and was working on them, and that she did not know that the income from residents had to be listed. 13. The Agency determined that the above constitutes the grounds for the imposition of an uncorrected State Class IV deficiency in that it does not threaten the health, safety, or security of residents of the facility. 14. The Agency provided Respondent with a mandatory correction date of May 21, 2008. 15. On July 14, 2008, the Agency conducted a second re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 15.1. Based on facility records review and interview the facility failed to maintain written business records that accurately reflected assets and liabilities, income and expenses and identified income from residents by resident name and source. 15.2. Facility financial records review on 7/14/08 at approximately 11:30 AM revealed records for January 2006 and February 2006 that listed the facility's expenses but did not list the income from residents. Interview with the staff in charge on July 14, 2008, at about 11:15 AM, revealed that the staff member searched the records and could not find current documentation that accurately reflected assets and liabilities, income and expenses and records that identified income from residents by resident name and source. 15.3. Ina telephone interview on July 14, 2008, at about 10:45 AM, with the administrator the administrator told the Agency surveyor that she was in Georgia waiting on a flight to Orlando and would not make it to the facility. Further interview revealed that the facility’s administrator spoke with the staff person and informed her of the whereabouts of the facility records, but the records were not made available for review by the Agency surveyor. 16. The Agency determined that the above constitutes the grounds for the imposition of an uncorrected State Class IV deficiency in that it does not threaten the health, safety, or security of residents of the facility. 17. | The Agency provided Respondent with a mandatory correction date of July 31, 2008. 18. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a twice “uncorrected” deficiency as defined by law. 19, The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a demonstrated pattern of deficient performance as defined by law. 20. By such a pattern of deficient performance in failing to make financial statements available for review by Agency personnel, the Respondent makes it impossible for the Agency to ascertain the Respondent’s financial ability to operate. §§ 408.810(8) and 429.14(1)(), Florida Statutes (2007). WHEREFORE, the Agency intends to impose an administrative fine in the amount of $200.00, against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(d), Florida Statutes (2007), and intends to revoke the license of Respondent pursuant to Section 408.815(1)(d), Florida Statutes (2007). COUNT II 21. ~The Agency re-alleges and incorporates paragraphs one (1) through five (5) and paragraph eight (8), as if fully set forth in this count. 22. Rule 58A-5.024(1)(i), Florida Administrative Code, defines: (1) FACILITY RECORDS. Facility records shall include: (i) The admission package presented to new or prospective residents (less the resident’s contract) described in Rule 58A-5.0182, F.A.C. 23. Rule 58A-5.0182(6), Florida Administrative Code, describes: (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S., or a summary provided by the Long-Term Care Ombudsman Council shall be posted in full view in a freely accessible resident area, and included in the admission package provided pursuant to Rule 58A- 5.0181, F.A.C. (e) The facility shall have a written statement of its house rules and procedures which shall be included in the admission package provided pursuant to Rule 58A-5.0181, F.A.C. The rules and procedures shall address the facility’s policies with respect to such issues, for example, as resident responsibilities, the facility’s alcohol and tobacco policy, medication storage, the delivery of services to residents by third party providers, resident elopement, and other administrative and housekeeping practices, schedules, and requirements. 24. Rule 58A-5.0181(3), Florida Administrative Code, defines: (3) ADMISSION PACKAGE. (a) The facility shall make available to potential residents a written statement(s) which includes the following information listed below. A copy of the facility resident contract or facility brochure containing all the required information shall meet this requirement: 1. The facility’s residency criteria; 2. The daily, weekly or monthly charge to reside in the facility and the services, supplies, and accommodations provide by the facility for that rate; 3. Personal care services that the facility is prepared to provide to residents and additional costs to the resident, if any; 4. Nursing services that the facility is prepared to provide to residents and additional costs to the resident, if any; 5. Food service and the ability of the facility to accommodate special diets; 6. The availability of transportation and additional costs to the resident, if any; 7. Any other special services that are provided by the facility and additional cost if any; 8. Social and leisure activities generally offered by the facility; 9. Any services that the facility does not provide but will arrange for the resident and additional cost, if any; 10. A statement of facility rules and regulations that residents must follow as described in Rule 58A-5.0182, F.A.C.; 11. A statement of the facility policy concerning Do Not Resuscitate Orders pursuant to Section 429.255, F.S., and Advance Directives pursuant to Chapter 765, F.S. 12. If the facility also has an extended congregate care program, the ECC program’s residency criteria; and a description of the additional personal, supportive, and nursing services provided by the program; additional costs; and any limitations, if any, on where ECC residents must reside based on the policies and procedures described in Rule 58A-5.030, F.A.C.; 13. If the facility advertises that it provides special care for persons with Alzheimer’s disease and related disorders, a written description of those special services as required under Section 429.177, F.S.; and 14. A copy of the facility’s resident elopement response policies and procedures. (b) Prior to or at the time of admission the resident, responsible party, guardian, or attorney in fact, if applicable, shall be provided with the following: 1. A copy of the resident’s contract which meets the requirements of Rule 58A-5.025, F.A.C.; 2. A copy of the facility statement described in paragraph (a) if one has not already been provided; 3. A copy of the resident’s bill of rights as required by Rule 58A-5.0182, F.A.C.; and 4. A Long-Term Care Ombudsman Council brochure which includes the telephone number and address of the district council. (c) Documents required by this subsection shall be in English. If the resident is not able to read, or does not understand English and translated documents are not available, the facility must explain its policies to a family member or friend of the resident or another individual who can communicate the information to the resident. 25. On March 6, 2007, the Agency conducted a Biennial Relicensure Survey of the Respondent facility: 25.1. Based on interview, the facility failed to ensure that a statement of the facility's policy concerning Do Not Resuscitate Orders was included in the admission package given to six (6) of six (6) sampled residents. 25.2. An interview with the administrator on 3/05/07 at about 11:05 AM, revealed that the facility did not have.a statement in the admission package concerning the facility's policy on Do Not Resuscitate Orders. 25.3. The Agency determined that the Respondent Facility’s failure to have available for review an admission package containing the required materials 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. 25.4. The Agency provided Respondent with a mandatory correction date of March 29, 2007. 26. The March 6, 2007, deficiency was corrected at the subsequent Agency survey of April 19, 2007. 27. From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 27.1. Based on record review and interview the facility failed to ensure that it maintained for review an admission package with all required components to be presented to new or prospective residents. 27.2. The administrator designee stated on 3/18/08 at approximately 10:30 AM that an admission packet was not available for review by the Agency surveyor. 27.3. The Agency determined that this deficient practice of failing to have available for review an admission package containing the required materials 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. 27.4. The Agency provided Respondent with a mandatory correction date of March 28, 2008. 28. On May 7, 2008, the Agency conducted a re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 28.1. Based on record review and interview, the facility failed to maintain for review an admission package that included the facility's Do Not Resuscitate policy to be presented to new and prospective residents. 28.2. Review of facility records on 5/7/08 at approximately 11:00 AM revealed that the admission packet did not include a statement of the facility's policy concerning Do Not Resuscitate Orders pursuant to Section 429.255, F.S. 28.3. The administrator stated on said date and time that she was not aware that the Do Not Resuscitate policy needed to be in such detail. 28.4. The Agency determined that this deficient practice of failing to have available for review an admission package containing the required materials 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 an uncorrected State Class III deficiency. 28.5. The Agency provided Respondent with a mandatory correction date of May 21, 2008. 29. On July 14, 2008, the Agency conducted a second re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 2008. 29.1. Based on record review and interview the facility failed to provide documentation in the admission package that included the facility's procedure to responding to Do Not Resuscitate DNR orders. 29.2. Review of the facility's records on 7/14/08 revealed information regarding Advance Healthcare Directives. The Respondent facility’s document explained what an Advance Healthcare Directives was and what a Do Not Resuscitate (DNR) order was, but did not state the facility's procedure regarding how the staff would handle the residents’ DNR orders. 29.3. Interview with a staff member on July 14, 2008, at around 11:45 AM revealed that she did not know what she was suppose to do if a resident had a DNR order. 29.4.. The Agency determined that this deficient practice of failing to have available for review an admission package containing the required materials 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 twice uncorrected State Class III deficiency. 30. | The Agency provided Respondent with a mandatory correction date of July 31, 31. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a twice “uncorrected” deficiency as defined by law. 32. The violation identified on March 6, 2007, being the same violation as identified on the March 18, 2008, survey, the May 7, 2008, survey and again on the July 14, 2008, survey, these violations constitute a demonstrated pattern of deficient performance as defined by law. 10 33. Such a demonstrated pattern of deficient performance may mean that neither residents nor Respondent facility’s staff members know how to implement a Do Not Resuscitate Order, thus undermining the legislative policy in authorizing such orders. See § 401.45, Florida Statutes (2007). 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 § 429.19(2)(c), Florida Statutes (2007), and intends to revoke the license of Respondent pursuant to Section 408.815(1)(d), Florida Statutes (2007). 34. COUNT III The Agency re-alleges and incorporates paragraphs one (1) through five (5) and paragraph eight (8), as if fully set forth in this count. 35. 36. Rule 58A-5.0182(8)(b), Florida Administrative Code, requires: (b) Facility Resident Elopement Response Policies and Procedures. The facility shall develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures shall include: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; . 3. The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and 4. The continued care of all residents within the facility in the event of an elopement. From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 36.1. Based on interview and review of the facility's elopement response policy, the facility failed to create detailed written policies and procedures for responding to a 11 resident elopement. 36.2. Review of the facility's elopement response policy and procedures on 3/18/08 at approximately 11:45 AM revealed that the policy did not address: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident's family, guardian, health care surrogate, and case manager if the resident is not located; and 4. The continued care of all residents within the facility in the event of an elopement. 36.3. On March 18, 2008, the administrator designee told the Agency surveyor that no other documentation was available, that the administrator was out of town, and that maybe the administrator had the Respondent facility’s elopement policy with her. 36.4. The Agency determined that this deficient practice of failing to have a complete resident elopement policy 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. 36.5. The Agency provided Respondent with a mandatory correction date of March 28, 2008. 37. On May 7, 2008, the Agency conducted a re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 37.1. Based on interview and review of the facility's elopement response policy, the facility failed to create detailed written policies and procedures for responding to a resident elopement. 12 37.2. Review of the facility's elopement response policy and procedures on 5/7/08 at approximately 12:45 PM revealed that the document indicated that it was an "elopement drill" and did not address: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident's family, guardian, health care surrogate, and case manager if the resident is not located; and 4. The continued care of all residents within the facility in the event of an elopement. 37.3. On May 7, 2008, the administrator stated she did not realize that the policy needed to be more detailed. 37.4. The Agency determined that this deficient practice of failing to have a complete resident elopement policy 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 an uncorrected State Class III deficiency. 37.5. The Agency provided Respondent with a mandatory correction date of May 21, 2008. 38. On July 14, 2008, the Agency conducted a second re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 38.1. Based on interview and review of the facility's elopement response policy, the facility failed to create detailed written policies and procedures for responding to a resident elopement. 38.2. Review of the facility's elopement response policy and procedures on 7/14/08 at approximately 12:15 PM revealed the following as this Respondent’s 13 elopement policy and procedure: Attention all staff, please read the elopement policy and procedures. The purpose of this policy is to provide a safe and secure environment identifying all residents who are a potential elopement risk. Elopement occurs when a cognitively impaired resident leaves the property without the staff knowledge. The procedure, identification and prevention. 1. Evaluate all residents on admission and every six months for risk of elopement. 2. Obtain a current photograph or resident identification as an elopement risk. 3. The residents photograph is attached to their demographic data sheet and placed in their files. 4. Initiate individualized interventions to address risk of elopement. Interventions may include, but not be limited to environment modifications to prevent undetected exits (door alarms, utilize locked doors with key pads). -Structure activities schedules at times of increased elopement risk. -Increased frequency of resident location rounds, -Diversion tactics. -Redirection of elopement patterns. -Utilization of safe wandering areas. 5. Communicate individualized intervention to the care giving staff. 6. Evaluate and document effectiveness of intervention and modifying interventions as needed. 7. Communicate elopement risk to the care giving staff upon hire and conduct training and drills 2 times per year regarding policy/procedure in recognizing and preventing elopement. 38.3. The Respondent’s elopement policy and procedure did not address: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident's family, guardian, health care surrogate, and case manager if the resident is not located; and 14 4. The continued care of all residents within the facility in the event of an elopement. 38.4. When the Agency surveyor conducted a telephone interview on July 14, 2008, at about 10:45 AM with the administrator, the administrator stated that she was in Georgia waiting on a flight to Orlando and would not make it to the facility. Further interview revealed that she spoke with the staff person and informed her of the whereabouts of the facility records. 38.5. The staff member searched the facility records and could not find a policy and procedure that addressed the above required areas. 38.6. The Agency determined that this deficient practice of failing to have a complete resident elopement policy 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 twice uncorrected State Class III deficiency. 39. The Agency provided Respondent with a mandatory correction date of July 31, 2008. 40. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a twice “uncorrected” deficiency as defined by law. 41. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a demonstrated pattern of deficient performance as defined by law. 42. This demonstrated pattern or deficient performance makes unlikely a proper response to elopement by Respondent’s staff thus potentially endangering the safety and security of the Respondent facility’s residents. 15 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 § 429.19(2)(c), Florida Statutes (2007), and intends to revoke the license of Respondent pursuant to Section 408.815(1)(d), Florida Statutes (2007). COUNT IV 43. | The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth in this count. 44. — Rule 58A-5.023(1)(b), Florida Administrative Code, defines: (b) 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. 45. | On March 6, 2007, the Agency conducted a Biennial Relicensure Survey of the Respondent facility: 45.1. Based on interview, the facility failed to replace stained, bleached and dirty rugs in the residents’ rooms. 45.2. During the initial tour on 3/06/07 at around 9:15 AM, the Agency surveyor observed that the rugs were stained, bleached and dirty throughout the residents rooms. 45.3. Interview with the Administrator on 3/06/07 at about 10:20 AM, confirmed that the rugs needed to be replaced. 45.4. The Agency determined that the Respondent Facility’s failing to maintain a clean facility was related to the personal care of the residents that indirectly or 16 ’ potentially threatened the health, safety, or security of the residents and cited Respondent for a State Class III deficiency. 45.5. The Agency provided Respondent with a mandatory correction date of March 29, 2007. 46. | The March 6, 2007, deficiency was corrected at the subsequent Agency survey of April 19, 2007. 47. From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 2008. 47.1. Based on observations and interviews the facility failed to ensure that all rugs and carpets were clean. 47.2. During the facility tour on 3/13/08 at approximately 9:45 AM, the Agency surveyor observed that the carpet in the room of Residents #3 and #7 was very soiled: dark color spots, stains covered the rug. The carpet in the room of Residents #6 and #7 had multiple stains or spots. 47.3. The administrator designee stated to the Agency Surveyor at approximately 11 AM that they had discussed getting the carpets cleaned. 47.4. The Agency determined that this deficient practice of failing to maintain a clean facility 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. 48. The Agency provided Respondent with a mandatory correction date of March 28, 17 49. On May 7, 2008, the Agency conducted a re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 2008. 49.1. Based on observations and interviews the facility failed to ensure that all tugs and carpets were clean. 49.2. During the facility tour on 5/7/08 at approximately 11:45 PM, the Agency surveyor noted that the carpet in the room of Residents #3 and #7 was still very soiled with dark colored spots, and stains covered the rug. The carpet in the room of Residents #6 and #7 had multiple stains or spots. The carpet in the room of Residents #6 and #7 had multiple discolored areas. 49.3. The administrator told the Agency surveyor that a staff member had tried to clean the carpet with a broom and bleach and discolored the carpet. She added that the carpet had been professionally cleaned but they had not done a good job. She stated that to replace the carpet would be very costly. 49.4. The Agency determined that this deficient practice of failing to maintain a clean facility 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 an uncorrected State Class III deficiency. 50. The Agency provided Respondent with a mandatory correction date of May 21, 51. On July 14, 2008, the Agency conducted a second re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 51.1. Based on observations and interviews the facility failed to ensure that all rugs and carpets in the residents’ rooms were clean. 18 51.2. Observations by the Agency surveyor during the facility tour on 7/14/08 at approximately 11 AM revealed the carpets in rooms #1 and #2 had multiple stains and _ spots and multiple discolored areas. 51.3. Interviews with the residents revealed that the carpets have been cleaned but the stains and the discolored areas do not come off. 51.4. The Agency determined that this deficient practice of failing to maintain a clean facility 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 twice uncorrected State Class III deficiency. 52. The Agency provided Respondent with a mandatory correction date of July 31, 2008. 53. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a twice “uncorrected” deficiency as defined by law. 54. The violation identified on March 6, 2007, being the same violation as identified on the March 18, 2008, survey, the May 7, 2008, survey and again on the July 14, 2008, survey, these violations constitute a demonstrated pattern of deficient performance as defined by law. 55. Such a demonstrated pattern of deficient performance means that the Respondent facility has repeatedly failed to meet the minimum standard for residents’ physical environment, thus indirectly or potentially threatening the health, safety, or security of the residents. 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 § 429.19(2)(c), Florida Statutes (2007) and intends to revoke the license of Respondent pursuant to 19 Section 408.815(1)(d), Florida Statutes (2007). 56. COUNT V The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth in this count. 57. Rule 58A-5.019(2)(a), Florida Administrative Code, requires: (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.: 58. Rule 58A-5.024(2)(a), Florida Administrative Code, requires: (2) STAFF RECORDS. (a) Personnel records for each staff member shail contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. 59. Rule 58A-5.024(4)(a), Florida Administrative Code, requires: (4) RECORD INSPECTION. (a) All records required by this rule chapter shall be available for inspection at all times by staff of the agency, the department, the district long-term care ombudsman council, and the advocacy center for persons with disabilities. 60. On March 6, 2007, the Agency conducted a Biennial Relicensure Survey of the Respondent facility: 60.1. Based on personnel record review and interview, the facility failed to ensure that freedom from Tuberculosis (TB) was documented on an annual basis for two 20 (2) of three (3) of Respondent’s staff members whose records were reviewed by the Agency surveyor. 60.2. Personnel record review on 3/06/07 at approximately 12:30 PM, revealed that both staff #1 and #3 had a TB test dated 8/05. 60.3. Continued review indicated that staff members #1 and #3 had no documentation to confirm that a TB test was performed within the 365 days prior to the date of the Agency survey and no documentation to confirm freedom from Tuberculosis. 60.4. Interview with the Administrator (staff #1) on March 6, 2007, at around 1:05 PM, revealed that she had a TB test for 2006 and would call her physician to obtain a copy. Further interview revealed that since she had recently moved, some of the documentation was at her home. The administrator told that Agency surveyor that she knew staff member #3 had a current TB test. 60.5. The Agency determined that the Respondent Facility’s failure to obtain annual documentation of freedom from tuberculosis 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. 60.6. The Agency provided Respondent with a mandatory correction date of March 29, 2007. 61. The March 6, 2007, deficiency was corrected at the subsequent Agency survey of April 19, 2007. 62. From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 21 2008. 62.1. Based on personnel record review and interview, the facility failed to ensure that one (1) of three (3) staff whose records were reviewed, “Staff #2,” had obtained a physician’s statement that annually documented freedom from tuberculosis (TB). 62.2. Personnel record review on 3/18/08 at approximately 2:45 PM for Staff #2, hired in August 2005, revealed that the staff member had no annual documentation of freedom from TB. 62.3. The administrator designee told the Agency surveyor that no other documentation was available, that the administrator was out of town, and that maybe the administrator had additional documents with her. 62.4. The Agency determined that this deficient practice of failure to obtain annual documentation of freedom from tuberculosis 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. 63. The Agency provided Respondent with a mandatory correction date of March 28, 64. On May 7, 2008, the Agency conducted a re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 64.1. Based on personnel record review and interview, the facility failed to ensure that two (2) of three (3) staff whose records were reviewed, Staff #1 and Staff #2, obtained a healthcare provider's statement that annually documented freedom from tuberculosis (TB). 22 2008. 64.2. Individual personnel record review on 5/7/08 at approximately 1:45 PM revealed that: a. Staff #1, the owner/administrator last had a TB test dated 4/10/07. b. Staff #2, hired in August 2005, last had a freedom from communicable diseases statement including TB dated 4/19/07. 64.3. Continued review revealed that neither Staff #1 nor Staff #2 had received a test within one year of the date of the survey showing freedom from TB. 64.4. The administrator stated that Staff #2 and she were scheduled for a TB test on 5/8/09. 64.5. The Agency determined that this deficient practice of failure to obtain annual documentation of freedom from tuberculosis 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 an uncorrected State Class III deficiency. 65. The Agency provided Respondent with a mandatory correction date of May 21, 66. On July 14, 2008, the Agency conducted a second re-visit to the Complaint Survey (CCR #2008002591) of the Respondent. 66.1. Based on personnel record review and interview, the facility failed to ensure that two (2) of three (3) of Respondent’s staff whose records were reviewed, Staff #2 and Staff #3, had obtained a healthcare provider's statement that documented freedom from tuberculosis (TB) on a yearly basis, every 365 days. 66.2. Individual personnel record review on 7/14/08 at approximately 1 PM revealed that: 23 a. Staff #2, hired in August 2005, had a freedom from communicable diseases statement including TB dated 4/19/07. b. Staff #3, the owner/administrator had a TB test dated 4/16/07. 66.3. Continued review revealed that neither had submitted annual documentation of freedom from TB. 66.4. A staff member present at the time of the revisit searched the files at about 1:30 PM and could not find other paperwork to document that a TB test for 2008 was completed on the above staff. 66.5. The Agency determined that this deficient practice of failure to obtain annual documentation of freedom from tuberculosis 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 twice uncorrected State Class III deficiency. 67. The Agency provided Respondent with a mandatory correction date of July 31, 2008. 68. The violation identified on March 18, 2008, being uncorrected on the May 7, 2008, survey and again on the July 14 survey, the July 14, 2008, violation constitutes a twice “uncorrected” deficiency as defined by law. 69. The violation identified on March 6, 2007, being the same violation as identified on the March 18, 2008, survey, the May 7, 2008, survey and again on the July 14, 2008, survey, these violations constitute a demonstrated pattern of deficient performance as defined by law. 70. Such a demonstrated pattern of deficient performance means that the Respondent facility has repeatedly made it impossible for Agency surveyors to determine if any staff member has Tuberculosis, a potentially deadly disease for frail or elderly residents of Respondent facility, thus threatening the health, safety, or security of the residents. 24 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 § 429.19(2)(c), Florida Statutes (2007) and intends to revoke the license of Respondent pursuant to Section 408.815(1)(d), Florida Statutes (2007). COUNT VI 71. The Agency re-alleges and incorporates the above paragraphs one (1) through five (5), as if fully recited in this count. 72. Rule 58A-5.0191(5), Florida Administrative Code, requires: (5) ASSISTANCE WITH SELF-ADMINISTERED MEDICATION AND MEDICATION MANAGEMENT. Unlicensed 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: (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. 73. Section 429.256(1)(b), Florida Statutes (2007), defines: (b) "Unlicensed person" means an individual not currently licensed to practice nursing or medicine who is employed by or under contract to an assisted living facility and who has received training with respect to assisting with the self- administration of medication in an assisted living facility as provided under s. 429.52 prior to providing such assistance as described in this section. 74. Rule 58A-5.024(2)(a)1., Florida Administrative Code specifies a licensed facility’s record keeping requirements: (2) STAFF RECORDS. (a) Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references 25 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. 75. On March 6, 2007, the Agency conducted a Biennial Relicensure Survey of the Respondent facility: 75.1. Based on personnel record review and interview, the Agency surveyor determined that the facility failed to ensure that any of the three sampled unlicensed staff who provided assistance to facility residents with self-administered medications, “Staff #1, #2, and #3,” had annually obtained a minimum of 2 hours of continuing education training on providing assistance with self-administered medications and safe medication practices in an assisted living facility. 75.2. Staff #1, #2, and #3 are “unlicensed persons” for purposes of § 429.256(1)(b), Florida Statutes (2007). 75.3. Personnel record review by the Agency surveyor on 3/06/07 at 12:30 PM revealed that Staff #1, #2 and #3 were unlicensed persons who provided assistance to Respondent Facility’s residents with self-administration of medication and had completed the initial 4 hour of training in assisting with resident medications: Staff #1 completed the initial training on 7/12/05. Staff #2 completed the initial training on 2/13/06. Staff #3 completed the initial training on 7/12/05. 75.4. However, there was no documentation in Respondent Facility’s records to indicate that any of Staff #1, #2, or #3 had subsequently received 2 hours of required annual continuing education on providing assistance with self-administered medications and safe medication practices in an assisted living facility, since the date of their initial 26 2007. training. 75.5. In an interview with the Respondent Facility’s administrator on March 6, 2007, at about 2:00 PM, the administrator confirmed to the Agency surveyor that the three staff members had not received the required annual 2 hours of continuing education. 75.6. The Agency determined that the Respondent Facility’s failure to ensure that unlicensed staff who provided assistance with self-administered medications obtained annually a minimum of 2 hours of continuing education training on providing assistance with self-administered medications 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. 76. The Agency provided Respondent with a mandatory correction date of March 29, 77. On April 19, 2007, the Agency conducted a re-visit to the Biennial Relicensure Survey of the Respondent: 77.1. Based on personnel record review and interview the facility, the Agency surveyor determined that the Respondent Facility still failed to ensure that any of the three staff members, “Staff #1, #2 and #3,” who provided assistance to residents with self-administered medications had obtained, annually, a minimum of 2 hours of continuing education training on providing assistance with self-administered medications and safe medication practices in an assisted living facility. 77.2. Personnel record review on 4/19/07 at 12 PM revealed Staff #1, #2 and #3 were the same unlicensed persons whose records were reviewed on March 6, 2007, who provided assistance to residents with self-administration of medication, and who had 27 completed the initial 4 hour of training in assisting with resident medications. 77.3. Records provided to the Agency surveyor for review showed no documentation to indicate that any of the three staff members had received 2 hours of continuing education since the date of their initial training. 77.4. In an interview with the Respondent Facility’s administrator on April 19, 2007, the administrator confirmed to the Agency surveyor that the staff members had not received the required annual 2 hours of continuing education. The administrator told the surveyor that she did not know where she could find a person qualified to do the training. 77.5. The Agency determined that during the March 6, 2007, survey and again during the April 19, 2007, survey the Agency had identified Respondent Facility’s deficient practice of failure to ensure that unlicensed staff who provided assistance with self-administered medications obtained annually, a minimum of 2 hours of continuing education training on providing assistance with self-administered medications. Hence, this deficient practice is an uncorrected deficiency for purposes of § 429.19(2)(c), Florida Statutes. 77.6. The Agency determined that this deficient practice of Respondent Facility’s failure to ensure that unlicensed staff who provided assistance with self- administered medications obtained annually, a minimum of 2 hours of continuing education training on providing assistance with self-administered medications 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 an uncorrected State Class III deficiency. 28 78. The Agency provided Respondent with a mandatory correction date of May 3, 2007. 79. On May 18, 2007, the Agency conducted a second revisit to the Biennial Relicensure Survey of the Respondent facility: 79.1. Based on personnel record review and interview the facility failed to ensure that any of the three sampled unlicensed staff who provided assistance to residents with self-administered medications had successfully completed their required annual minimum of 2 hours of continuing education training on providing assistance with self- administered medications and safe medication practices in an assisted living facility. 79.2. During the revisit to the biennial relicensure survey, personnel record review on 5/18/07 at 3:15 PM revealed to the Agency surveyor that the same staff | members -- Staff #1, #2 and #3 -- were providing assistance to residents with self- | administration of medication as had provided such assistance at the prior Agency surveys of March 6, 2007, and April 19, 2007. 79.3. The Agency surveyor was provided by the Respondent Facility with no documentation to indicate that any of the three staff members received the required annual 2 hours of continuing education since the date of their initial training. 79.4. The Agency surveyor conducted a telephone interview with the administrator, who was out of town on May 18, 2007. At that time the Respondent’s administrator told the Agency surveyor that each of the staff members assisting residents with self-administration had obtained the required 2 hours of continuing education, and that she would tell the caregiver in charge of the facility where to locate the documentation. 29 2007. 79.5. Following the conversation between the caregiver in charge of the facility and the administrator, the caregiver in charge told the Agency surveyor that she had searched the personnel records for the documentation and could not locate it. The caregiver attempted to reach the administrator again and was not able to reach the administrator. 79.6. Again, on May 18, 2007, no documentation was available for review by the Agency surveyor to demonstrate that any of the staff members assisting residents with self-administration had obtained the required annual 2 hours of continuing education. 79.7. The Agency determined that this deficient practice of Respondent Facility’s failure to ensure that unlicensed staff who provided assistance with self- administered medications obtained, annually, a minimum of 2 hours of continuing education training on providing assistance with self-administered medications 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 twice uncorrected State Class III deficiency. 80. | The Agency provided Respondent with a mandatory correction date of June 2, 81. _A final order of the Agency was entered against Respondent on June 17, 2008, in Agency case numbers 2008003770 and 2008003634 (the “Final Order”). 82. No notice of appeal or petition for review has been filed with regard to the Final Order, as of the date of this Administrative Complaint. 83. Asa matter of law, the Final Order finds that the allegations set forth in paragraphs 75 through 80 of this administrative complaint are admitted, and that the Respondent 30 facility has waived its right to challenge the allegations. The allegations of paragraph 75 through 80 are the allegations found in the Administrative Complaint on which the Final Order in cases 2008003770 and 2008003634 is based. The parties are the same parties as in the instant litigation. The violations alleged in paragraphs 75 through 80 are identical to the allegations found in the Administrative Complaint on which the Final Order in cases 2008003770 and 2008003634 is based. | 84. | From March 13, 2008, through March 18, 2008, the Agency conducted a Complaint Survey (CCR #2008002591) of the Respondent facility: 84.1. Based on record review and interview, the Respondent facility failed to ensure that one (1) of three (3) unlicensed staff, Staff #3, who regularly provided assistance with residents’ medications had successfully completed their required annual minimum of 2 hours of continuing education training on providing assistance with self- administered medications and safe medication practices in an assisted living facility. 84.2. Staff #3 told the Agency surveyor on 3/13/08 at approximately 2 PM stated that s/he was not a nurse, and that s/he assisted residents with their medications. 84.3. Personnel record review on 3/18/08 at approximately 2:45 PM revealed that Staff #3 was not a licensed healthcare professional and therefore not exempt from annual medication training. 84.4. A certificate provided to the Agency surveyor for review indicated attendance at a 4 hour class on providing assistance with self-administration of medication dated 7/12/05. No evidence was available to confirm attendance at a 2 hour class on providing assistance with self-administered medications and safe medication practices in an ALF for the years 2006, 2007 or 2008. 31 84.5. On March 18, 2008, the administrator designee told the Agency surveyor that no other documentation was available, that the administrator was out of town, and that maybe the administrator had the needed documentation with him/her. 84.6. The Agency determined that this deficient practice of Respondent Facility’s failure to ensure that unlicensed staff who provided assistance with self- administered medications obtained, annually, a minimum of 2 hours of continuing education training on providing assistance with self-administered medications related to the operation and maintenance of a facility or to the personal care of residents which directly threatened the physical or emotional health, safety, or security of the facility residents, other than class I violations, for a State Class II deficiency. 85. | The Agency provided Respondent with a mandatory correction date of 3/19/08. 86. The violation identified on March 6, 2007, being the same violation as identified on the April 19, 2007, survey, the May 18, 2007, survey and again on the March 18, 2008, survey, these violations constitute a demonstrated pattern of deficient performance as defined by law. 87. Such a demonstrated pattern of deficient performance means that the Respondent facility has repeatedly made it impossible for Agency surveyors to determine if all caregiver staff members been adequately trained in assistance with residents’ self-administration of medication -- including the facility’s duty to assist the residents in obtaining medication, how to record self- administration or refusal, and how to recognized when to notify the physician of the effects of medication -- potentially threatening the health, safety, or security of the residents. WHEREFORE, the Agency intends to revoke the license of Respondent pursuant to Section 408.815(1)(d), Florida Statutes (2007). 32 COUNT VII 88. The Agency re-alleges and incorporates the above paragraphs one (1) through five (5), as if fully recited in this count. 89. Section 408.831(1)(a), Florida Statutes (2007), states: (1) In addition to any other remedies provided by law, the agency may deny each application or suspend or revoke each license, registration, or certificate of entities regulated or licensed by it: (a) If the applicant, licensee, or a licensee subject to this part which shares a common controlling interest with the applicant has failed to pay all outstanding fines, liens, or overpayments assessed by final order of the agency or final order of the Centers for Medicare and Medicaid Services, not subject to further appeal, . 90. Section 120.68, Florida Statutes (2007), states: (1) A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy. (2)(a) Judicial review shall be sought in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. All proceedings shall be instituted by filing a notice of appeal or petition for review in accordance with the Florida Rules of Appellate Procedure within 30 days after the rendition of the order being appealed. 91. A final order of the Agency was entered against Respondent on June 17, 2008, imposing a fine of three thousand seven hundred and fifty dollars ($3,750.00) in Agency case numbers 2008003770 and 2008003634 (the “Final Order”). 92. No notice of appeal or petition for review has been filed with regard to the Final Order, as of the date of this Administrative Complaint. 93. The fine imposed by the Final Order remains not paid and outstanding as of the date of this Administrative Complaint, and there is no repayment plan between the Agency and Respondent as to such fine. 33 WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, pursuant to § 429.831(1)(a), Florida Statutes (2007). Fla. 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 4#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 6908 7452 on July 22 2008 to Cindi Thompson, Owner/Administrator, Kendall Place, 6506 Tebbetts Drive, Orlando, FL 32818, and by regular U.S. Mail to her attorneys, John F. Gilroy, III, P.A., 1695 Metropolitan Circle, Suite 2, Tallahassee, Florida 32308-8722. es H. Harris sistant General Counsel 34 Copies furnished to: Cindi Thompson Owner/Administrator Kendall Place 6506 Tebbetts Drive Orlando, Florida 32818 (U.S. Certified Mail) Doris Spivey and Joel Libby Agency for Health Care Admin. Hurston South Tower 400 W. Robinson St., Suite $309 Orlando, FL 32801 (U.S. Mail) James H. Harris, Esq. Agency for Health Care Admin. 525 Mirror Lake Drive, 330H St. Petersburg, Florida 33701 (Interoffice) John F. Gilroy, III, P.A. 1695 Metropolitan Circle Suite 2 Tallahassee, Florida 32308-8722 (U.S. Mail) 35

Docket for Case No: 08-004889