STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, va. . Case No. 2011001672 MIGDALIA’S ACLF, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (“Agency”) and files this Administrative Complaint against Migdalia’s ACLF (“Respondent” or “Respondent Facility”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2010), and alleges; NATURE OF THE ACTION This is an action to impose an administrative fine in the sum of four thousand dollars ($4,000.00) based on four State class II deficiencies, pursuant to Chapter 408, Part II, and Chapter 429, Part I, Plorida Statutes (2010). JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and 429,07, and Chapter 408, Part II, Florida Statutes (2010). 2. Venue lies pursuant to Florida Administrative Code R. Filed October 14, 2011 2:11 PM Division of Administrative Hearings 28-106,207. PARTIES 3, The Agency is the regulatory authority responsible for licensing assisted living facilities and enforcing all applicable state rules and statutes governing assisted living facilities pursuant to Chapter 408, Part II, and Chapter 429, Part I, Florida Statutes, and Chapter 58A-5 Florida Administrative Code. 4. Respondent operates an eight-bed assisted living facility located at 2302 North Lincoln Avenue, Tampa, Florida 33607, and is licensed with a Standard assisted living facility license, number 6683, without additional license designation. 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 I A415 6. The Agency re-alleges and incorporates above paragraphs one (1) through five (5), as if fully set forth in this count. 7. Section 429.02, Florida Statutes, defines: “(19) ‘Resident’ means a person 18 years of age or older, residing in and receiving care from a facility.” 8, Section 429,26(1), Florida Statutes, requires: (1) The owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. A determination shall be based upon an assessment of the strengths, needs, and preferences of the resident, the care and services offered or arranged for by the facility in accordance with facility policy, and any limitations in law or rule related to admission criteria or continued residency for the type of license held by the facility under this part. 9, Rule 58A~-5,0181, Florida Administrative Code, requires: (1) ADMISSION CRITERIA, An individual must meet the following minimum criteria in order to be admitted to a facility holding a standard, limited nursing or limited mental health license: (i) Not be bedridden. (j) Not have any stage 3 or 4 pressure sores. A resident requiring care of a stage 2 pressure sore may be admitted provided that: 1. The facility has a LNS license and services are provided pursuant to a plan of care issued by a physician, or the resident contracts directly with a licensed home health agency or a nurse to provide care; 2. The condition is documented in the resident's record; and 3. If the resident’s condition fails to improve within 30 days, as documented by a licensed nurse or physician, the resident shall be discharged from the facility. (4) CONTINUED RESIDENCY. Except as follows in paragraphs (a) through (e) of this subsection, eriteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency eviteria, a resident must have a face-to-face medical examination by a licensed health care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5,0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2) (b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. (a) The resident may be bedridden for up to 7 consecutive days. (b) A resident requiring care of a stage 2 pressure sore may be retained provided that: 1, The facility has a LNS license and services are provided pursuant to a plan of care issued by a licensed health care provider, or the resident contracts directly with a licensed home health agency or a nurse to provide care; 2. The condition is documented in the resident's record; and 3, If the resident’s condition fails to improve within 30 days, as documented by a licensed health care provider, the resident shall be discharged from the facility. (a4) The administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility. (e) (5) DISCHARGE, If the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs, as determined by the facility administrator or licensed health care provider, the resident shall be discharged in accordance with Section 429.28(1), F.8. 10. Rule 58A-5.0131, Florida Administrative Code, defines: (33) “Significant change” means a sudden or major shift in behavior or mood, or a deterioration in health status such as unplanned weight change, stroke, heart condition, or stage 2, 3, or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term tllness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes. 11. On February 3, 2011, the Agency conducted a biennial cr a survey of the Respondent Facility. 12. Based on the Agency surveyor’s record review and interviews, the Respondent failed to determine that one resident, Resident #1, was not appropriate for re-admission to the facility, after having reviewed the records of three (3) residents. 13. Resident #1 was readmitted to the Respondent following a hospitalization on 11/18/10 with a Stage 4 decubitus, pressure sore, on the coceyx and a Foley catheter. 14, Resident #1 was not subject to an interdisciplinary care plan developed and implemented by a licensed hospice in consultation with the facility. 15. Resident #1 retained the services of a home health agency for wound care and catheter maintenance every other day. However, Resident #1's required care was inappropriate for Respondent to provide under a Standard assisted facility license. Respondent’s documentation reveals that Resident #1’s pressure wound did not improve over the period from readmission on November 18, 2010, through February 3, 2011, the date of the Agency's survey. 16. The Agency’s surveyor is a nurse and assessment of Resident #1’s wound revealed a Stage 4 pressure sore, with packing and a foul smell. Resident #1 has a history of dementia and is bedbound. Resident #1 was found by the Agency's surveyor to be able to follow some commands and to be immobile. 17. The Respondent facility does not have an administrator appointed at this time, and those persons presented to the Agency’s surveyor as staff are not qualified to empty the Foley bag daily or to provide wound care to Resident #1’s Stage 4 pressure sore. - 18. The Agency determined that this deficient practice of Respondent Facility’s accepting for readmission a resident for whom it could not provide needed care and service was related to the personal care of the residents that directly threatened the health, safety, or security of the residents and cited. Respondent for a State Class II deficiency pursuant to §§ 408,813 and 429.19, Florida Statutes (2010). . 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 §§ 408.813 and 429.19, Florida Statutes (2010), or such further relief as this tribunal deems just. COUNT II A429 19. The Agency re-alleges and incorporates above paragraphs one (1) through five (5) and paragraphs.seven (7) through (17), as if fully set forth in this count. 20. Resident #1 was never assessed for Hospice services and was not discharged to an appropriate care setting as of the date of the Agency’s survey of February 3, 2011, a period of residence since readmission of seventy-seven (77) days. 21. ‘The home health agency providing care to Resident #1 did not document any signs of improvement of the wound, nor did the home health agency stage the wound or take measurements of the wound. 22. The Agency's surveyor is a registered nurse. 23. The Agency’s surveyor's observation and assessment of Resident #1 revealed a frail resident with a deep crater on the coccyx packed with gauze and foul smelling. 24, The Agency determined that this deficient practice of Respondent Facility's failing to discharge a resident who was bedridden and suffering from Stage 4 pressure sores for whom it could not provided needed care and services was related to the personal care of the residents that directly threatened the health, safety, or security of the residents and cited Respondent for a State Class II deficiency pursuant to §§ 408.813 and 429.19, Florida Statutes (2010). 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 §§ 408.813 and 429.19, Florida Statutes (2010), or such further relief as thig tribunal deems just. COUNT TIT A500 25. The Agency re-alleges and incorporates above paragraphs one (1) through five (5), as if fully set forth in this count. . (26. Rule 58A-5.019, Florida Administrative Code, requires: (1) ADMINISTRATORS. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as . required by Part I of Chapter 429, F.S., and this rule chapter. (a) The administrators shall: 1, Be at least 21 years of age; 2. If employed on or after August 15, 1990, have a high school diploma or general equivalency diploma (G.E.D.), or have been an operator or administrator of a licensed assisted living facility in the State of Florida for at least one of the past 3 years in which the facility has met minimum standards. Administrators employed on or after October 30, 1995, must have'a high school diploma or G.E.D.; 3. Be in compliance with Level 2 background screening standards pursuant to Section 429,174, F,S.; and 4. Complete the core training requirement pursuant to Rule 58A-5.0191, F.A.C. (c) Pursuant to Section 429.176, F.S., facility owners shall notify both the Agency Field Office and Agency Central office within ten (10) days of a change ina facility administrator on the Notification of Change of Administrator, AHCA Form 3180-1006, January 2006, which is incorporated by reference and may be obtained from the Agency Central Office. The Agency Central Office shall conduct a background screening on the new administrator in accordance with Section 429.174, F.S,, and Rule 58A-5.014, F.A.C. 27. On February 3, 2011, the Agency conducted a biennial survey of the Respondent Facility. 28. Based on the Agency’s surveyor’s interviews with the owner and her son and review of Respondent’s records, the Agency determined that Respondent failed to retain an administrator who was trained and background screened and failed to timely notify the Agency of Respondent’s change of administrators so that background screening could be conducted. 29. During the Agency’s surveyor’s interview with the owner of the Respondent Facility and the owner’s son on 2/3/11 at approximately 11:00 a.m., the Agency’s surveyor was told that the owner did not have any information, credentials or whereabouts for the person whom respondent had designated “administrator” in Respondent's last license renewal application to the Agency. 30. Extant Respondent’s records revealed that the owner had an expired nursing license, and the person designated as administrator in the Agency’s records was never present for surveys. 31. The Respondent had no facility or state records that were kept current, and it was evident the facility had been operating without an administrator for months. The owner’s son stated that he will be taking charge of the Respondent Facility; however, he has not obtained the required CORE training for being an administrator. 32, Section 429.26, Florida Statutes, and Rule 58A- 5.019(1), Florida Administrative Code, require that every assisted living facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility, including the management of all staff and the provision of adequate care and services to all residents. Under § 429.26, Florida Statutes, and Rule 58A- 5.019, Florida Administrative Code, the administrator must assess each facility resident for appropriateness of initial residency and continued residency. The purpose of centering these responsibilities in the facility’s administrator is to ensure that the Respondent facility is capable of providing the care and services needed by each resident accepted for residency at the assisted living facility. 33. The Respondent facility violated Rule 58A-5.019, Florida Administrative Code, by failing to provide any administrator who was responsible for the operation and maintenance of the facility. Based upon the Agency surveyors’ observations and interviews, the Respondent facility was apparently being managed by the owner and the owner’s son, neither of whom had current CORE training and neither of whom met other staff level training requirements, including CPR certification. The result was predictable: Respondent's staff abdicated responsibility to the home health agency for providing care and services needed by Resident #1. 10 a ie 34. The Agency determined that the Respondent facility's failure to have an administrator who ensures that each resident receives the care and services need by the resident, provided by trained and qualified staff, constitutes grounds for the imposition of a Class II deficiency in that it is related to the personal care of the residents that directly threatens the health, safety, or security of the residents and cited Respondent for a State Class II deficiency pursuant to §§ 408.813 and 429,19, Florida Statutes (2010). 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 §§ 408.813 and 429.19, Florida Statutes (2010), or such further relief as this tribunal deems just. COUNT IV_A700 35.0 The Agency re-alleges and incorporates paragraphs one (1) through five (5) and paragraphs seven (7) through seventeen (17) and paragraphs twenty-eight (28) through thirty-one (31), as if fully set forth in this count. 36. Rule 58A-5,0182, Florida Administrative Code, provides: . (1) An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. 37. Section 429.26, Fla. Stat., requires: 11 429,26 Appropriateness of placements; examinations of residents. ~- (1) The owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. A determination shall be based upon an assessment of the strengths, needs, and preferences of the resident, the care and services offered or arranged for by the facility in accordance with facility policy, and any limitations in law or rule related to admission criteria or continued residency for the type of license held by the facility under this part. 38. Rule 58A~5.0181, Florida Administrative Code, requires: (5) DISCHARGE. If the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs, as determined by the facility administrator or health care provider, the resident shall be discharged in accordance with Section 429.28(1), F.S. 39, On February 3, 2011, the Agency conducted a biennial licensure survey of Respondent Facility. 40. Based on the Agency’s surveyor’s record review and interview of three (3) sampled resident records on February 3, 2011, the facility failed to ensure that one (1) resident, Resident #1, received care and services appropriate to this resident's needs. 41. Respondent’s records contain no documentation that anyone is providing any personal care services for the resident in the absence of home health. Respondent’s documentation does 12 not provide evidence of improvement or staging or measuring of .the pressure sore. Based on the Agency’s surveyor’s interviews, the owner of Respondent and her son are not aware of the progression of the wound. There is no documentation revealing communication between the Respondent and the home health agency retained by Resident #1 to provide Resident #1 with only every- other-day care. 42, The facility does not have an administrator, and the owner is not current with any staff training. There is no documentation to indicate that any members of Respondent's staff are current with required training. All of Respondent’s employees have expired CPR cards. 43. The Agency determined that this deficient practice of not documenting, and not having personnel who are background screened and trained to be able to provide, care and services needed by Resident #1 was related to the personal care of the resident that directly threatened the health, safety, or security of the resident and cited Respondent for a State Class IL deficiency pursuant to § 429.19(2) (b), Florida Statutes (2010). 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) (bo), Florida Statutes, or such further relief as this 13 tribunal deems just. NOTICE OF RIGHTS Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent. has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, FI, 32308; whose telephone number is 850-412-3630. 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 Administrative Complaint and Election of Rights form have been served by U.S. Certified Mail, Return Receipt No. 7010 0780 0001 9836 0356 to U.S. Mail to Migdalia Gonzalez, Migdalia’s ACLF, 2302 North Linceln Avenue, Tampa, Florida 33607, on March 4 : 2011, es H, Harris, Esq. ‘la. Bar, No. 6817775 Assistant General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330D St. Petersburg, FL 33701 727-552-1944 Facsimile: 727-552-1440. 14 Copies furnished to: Migdalia Gonzalez Migdalia’s ACLF 2302 North Lincoln Avenue Tampa, Florida 33607 (U.S. Certified Mail) James H, Harris, Esq. Agency for Health Care Administration 525 Mirror Lake Drive, 330D St, Petersburg, Florida 33701 (Interoffice) Kathleen Varga Agency for Health Care Administration 525 Mirror Lake Drive, North, 4° Floor St. Petersburg, FL 33701 (Interoffice) 15 HA Kh, SENDER: Gomy i figdalia Gonzalez Migdalia’s ACLF . 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Docket for Case No: 11-005312