STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, ve ; : ‘CASE NO. 2013013448 WELLSPRING ASSISTED LIVING FACILITY, LLC, d/b/a WELLSPRING ASSISTED LIVING FACILITY, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Wellspring Assisted Living Facility, LLC, d/b/a Wellspring Assisted Living Facility (“Respondent”), pursuant to Sections 120,569 and 120.57, Fla. Stat. (2013), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility (“ALF”) to impose a $1,500 fine for one State Class If violation (Count I). JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2. Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part II, and 429, Part I, Fla. Stat., and Chapter 584-5, F.A.C., respectively. 4. ‘Respondent operates a 48 bed ALF at 37815 15" Ave. W, Zephythills, FL 33542, Standard : i license #10854, ) 5. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes. COUNT I - $1,500 CLASS II FINE (State Tag A0030: Resident Care - Rights & Facility Procedures) | 6. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. 7. The Agency’s surveyor completed an unannouticed complaint investigation (CCR #2013010195) on 4 October, 2013. 8. The surveyor learned this information during the survey: a. Based on interview and record review, the facility failed to protect Resident#1’s, an 18 year old mentally unstable male, rights to be free from abuse and to be treated with respect and dignity, b. Interview with Resident #1 on 10/1/13 at 11:21 am. He stated he stole $100 from another resident to purchase a cell phone in late September, 2013. After the facility discovered he stole the money to purchase the phone he threw the phone and charger into a retention pond near the facility. On 9/26/13 Staff ‘A? asked him to bring the phone back and he told her the phone was in the pond. He said " Staff ‘A’ had me go in the retention pond and look for it (the phone). I walked out there she (Staff ‘A’) followed me she wanted me to show her which retention pond I threw it (the phone) in. I showed her and then she said, " ‘Don't come back unless you find the phone or unless you are — 2 willing to do chores to pay him (another resident) back.' " He noticed ‘A’ had a pair of goggles in her truck and he asked if he could borrow them. She gave hirn the goggles and Jeft him at the pond. " T just followed her (Staff ‘A’) orders." He got in the pond and searched for the phone, but was not able to find it. The water came above his knees He was surprised he did not get an infection. . c. Interview with Staff ‘A’ on 10/1/13 at 11:39 am. She confirmed that on 9/26/13 she asked Resident #1 to bring the phone back to the facility and that he had told her that the phone was ina pond. She also confirmed that she followed him in her truck to the retention pond. d. Interview with a Zephyrhills Police Department officer on 10/4/13 at 12:45 pm. He stated that on 9/26/13 he responded to a call regarding a resident swimming in a retention pond. He observed Resident #1 in the retention pond with a pair of goggles on his head, wet from head to toe. He interviewed Staff ‘A? who admitted to instructing the resident to get into the pond. e. Review of Zephyrhills Police Department report #2013-0007558. On 9/26/13 - representatives from the local police responded to a call regarding Resident #1 swimming in a retention pond. The police interviewed him on 9/26/13 - resident #1 explained that Staff ‘A’ gave him a pair of goggles and instructed him to, "find the cell phone and don't come back until you do." ‘A’ told him that if he did not find the phone he would be made to perform manual labor to make up for the lost cell phone he stole. "Made contact with [Staff A], she advised she had instructed [Resident #1] to swim in the pond to find the lost cell phone, further stating it was to, " Teach him | [Resident #1 ]a lesson. " f, Review of Resident #1's facility ‘Progress Notes’. A document dated 9/25/13 stated "[After] doing this the staff asked for the phone the prepaid cell phone to be returned he refused so he went down and [throw] the phone in a retention pond." It also stated that on 9/26/13 [Resident | | i I | i | i #1] signed ihe document (a 45 days ' notice to vacate the facility) also signing a document to do chores to pay the debt of a hundred dollars back by: downing (doing) chores around the facility." - 9. Florida’s law regarding residents having the right to a safe and decent living environment free. from neglect is stated as follows: 429.28 Resident bill of rights.— (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. Section 429.28, Fla. Stat, (2013) 58A-5.0182 Resident Care Standards, An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. and other activities within the facility and the community. (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S., ora 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. (b) In accordance with Section 429.28, F.S., the facility shall have a written grievance procedure for receiving and responding to resident complaints, and for residents to recommend changes to facility policies and procedures. The facility noust be able to demonstrate that such procedure is implemented upon receipt of a complaint. (f) Residents may not be required to perform any work in the facility without compensation, except that facility rules or the facility contract may include a requirement that residents be responsible for cleaning their own sleeping areas or apartments. If a resident is employed by the facility, the resident shall be compensated, at a minimum, at an hourly wage consistent with the federal minimum wage law. Rule 58A-5.0182, F.A.C. 10. Insum, the facility denied Resident #1’s rights to be free from abuse and to be treated with respect and dignity by imposing on him unauthorized remedies to address a theft in lieu of, e.g., deferring entirely to law enforcement to handle the matter and/or following facility grievance procedures. In particular, the remedies of 1) entering the pond put his health and safety at risk, and 2) doing chores that staff devised was in direct violation of the Rule set forth above. 11, Respondent was cited for a Class II violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing. Statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, .. Violations shall be classified on the written notice as follows: (b) Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla. Stat. (2013) 12. Florida law states as follows regarding the fine for an ALF Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part Il of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5, 000 for each violation, (3) For purposes of this section, in determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. (c) Any previous violations. (d)_ The financial benefit to the facility of committing or continuing the violation. (¢) The licensed capacity of the facility. Section 429.19, Fla. Stat. (2013) WHEREFORE, the Agency intends to impose a $1,500 fine against Respondent pursuant to Sections 408.813 and 429.19, Fla. Stat. (2013). Si Submitted this /7 day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION $25 Mirror Lake Dr. N., Ste 330 St. Petersburg, FL 33701 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com By _C Edwin D. Selby Assistant General Co Fla. Bar No. 262587 NOTICE OF RIGHTS The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered, The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No.7012 1640 0000 0115 1209 on/ 7 April, 2014, to Administrator Joseph Geetha, Wellspring Assisted Living Facility, 37815 15" Ave. W, Zephyrhills, FL 33542, and by regular U.S. mail to Registered Agent Joseph Joseph, 16205 Indian Mound Rd, Tampa, FL 33618. Edwin D. Selby Ce: Patricia Caufman, AHCA Area 5 Field Office Manager STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE. WELLSPRING ASSISTED LIVING FACILITY, LLC, Case No. 2013013448 d/b/a WELLSPRING ASSISTED LIVING FACILITY, ; ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Hf your Election of Rights with your selected option i is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: (850) 412-3630 Fax: (850) 921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___——s«d':s dispute the allegations of fact contained in the Notice of Intent to. Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. . You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; 2. The file number of the proposed action; 3, Astatement of when you received notice of the Agency’s proposed action; and 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. : License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City _Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: cee eee Se nee ; rage 101 English ‘Customer Service ‘USPS Mobile Register/Sign in @IUSPSCOM OO soc rs con era Page Quick Tools Track i Ship a Package . Send Mall Menage Your Mail : Shop “Business Solutions Enter up to 10 Tracking 4Find . . Find USPS Locatins Buy Stamps: . Schedule a Pigeup . Cust Servis Cath ™ ustomer Service » ont ro iS Tracking Have questions? 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Docket for Case No: 14-002516