STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2014003859 License No. 7285 SENIOR LIFESTYLES, LLC, d/b/a KIPLING File No. 11911073 MANOR RETIREMENT CENTER, Provider Type: 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, Senior Lifestyles, LLC d/b/a Kipling Manor Retirement Center (“the Respondent”), pursuant to Sections 120.569, and 120.57, Florida Statutes, and alleges as follows: NATURE OF THE ACTION This is an action to revoke the Respondent’s license to operate this assisted living facility, and impose administrative fines of $20,000.00 against the Respondent. PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida. Ch. 408, Part II, and Ch. 429, Part I, Fla. Stat. (2013); Ch. 59A-35, Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules. §§ 408.812, 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2013). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2013). 2. The Respondent was issued a license by the Agency to operate an assisted living facility (“the Facility”) located at 7901 Kipling Street, Pensacola, Florida, 32514, and was at all times material required to comply with the applicable state statutes and rules. § 429.11, Fla. Stat. (2013). In addition, the Respondent had a limited mental health specialty license and a limited nursing services specialty license. The licenses expired on August 26, 2013, but the Respondent was allowed to continue to operate because it had timely submitted a license renewal application. On April 14, 2014, the Agency issued an Immediate Moratorium on Admissions as well as an Emergency Suspension Order effective May 14, 2014, on the Respondent. As a license holder, the Respondent is a “licensee” as defined by Florida law. § 408.803(9), Fla. Stat. (2013). COUNT I Resident Rights 3. Under Florida law, section 429.28(1), Florida Statutes, states in pertinent part: 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 in a safe and decent living environment, free from abuse and neglect... . (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. .... §.429.28(1), Fla. Stat, (2013). Facts 4. On or about April 11, 2014; the Agency conducted a survey of the Respondent. 5. Based upon interview, record review, and information received from other state agencies, the Respondent neglected 6 of 8 sampled residents by failing to ensure the provision of their prescribed medications. (Residents #1 - #6) 2 6. On or about April 8, 2014, the Agency received information about medications and laboratory testing for 8 residents of the Facility. 7. Resident #1’s Medication Observation Record (“MOR”) from March, 2014, revealed that the resident received the following medications throughout the month: Tegretol 200 mg, taken two (2) times a day (this medication is used for the treatment of seizures and psychiatric disorders); Lithium 300 mg, taken two (2) times a day (this medicine is used for the treatment of bipolar disorders); Klonopin 0.5 mg, taken two (2) times a day (this medication is a Benzodiazepine used to treat anxiety). 8. A utine drug screen for Resident #1 was obtained on March 25, 2014. The screening results indicated an absence of Benzodiazepine (Klonopin) and a lithium level of 0.28 in Resident #1. The therapeutic level of lithium is between 0.5-1.2. 9. Resident #2’s MOR from March, 2014, revealed that the resident received the following medication throughout the month: Lorazepam (Ativan) 0.5 mg, taken four (4) times a day (this medicine is a Benzodiazepine used to treat anxiety). 10. A urine drug screen. for Resident #2 was obtained on March 25, 2014. The screening results indicated absence of Benzodiazepine (Lorazepam) in Resident #2. 11. Resident #3’s MOR from March, 2014, revealed that the resident received the following medication throughout the month: Klonopin 1 mg, taken two (2) times a day (this medication is a Benzodiazepine used to treat anxiety). 12. A urine drug screen for Resident #3 was obtained on March 25, 2014. The screening results indicated absence of Benzodiazepine (Klonopin) in Resident #3. 13. Resident #4’°s MOR from. March, 2014, revealed that the resident received the following medication throughout the month: Klonopin 1 mg, taken two (2) times a day (this medication is a Benzodiazepine used to treat anxiety). 14. A urine drug screen for Resident #4 was obtained on March 25, 2014. The screening results indicated absence of Benzodiazepine (Klonopin) in Resident #4. 15. Resident #5’s MOR from March, 2014, revealed that the resident received the following medications throughout the month: Klonopin 1 mg, taken two (2) times a day (this medication is a Benzodiazepine used to treat anxiety). 16. A urine drug screen for Resident #5 was obtained on March 25, 2014. The screening results indicated absence of Benzodiazepine (Klonopin) in Resident #5. 17. Resident #6’s MOR from March, 2014, revealed that the resident received the following medication: Lorazepam (Ativan) 1 mg, taken every 6 hours from March 1-17, and then was changed to be taken as needed every 6 hours. 18. _A further review of the facility records revealed documentation that Resident # 6 received Lorazepam on March 18, 19, 20, 22, 23, 24, 25, 26, 28, 29, and 30°, 19. A urine drug screen for Resident #6 was obtained on March 25, 2014. The screening results indicated absence of Benzodiazepine (Lorazepam) in Resident #6. 20. Based upon the foregoing, the Respondent failed to provide its residents a safe and decent living environment, free from abuse and neglect, and failed to provide its residents adequate and appropriate health care consistent with established and recognized standards within the community. 21. Based upon the foregoing actions, the Respondent committed an intentional or negligent act that materially affected the health or safety of a client of its residents and violated the authorizing statutes and applicable rules. 22. Based upon the foregoing, the Respondent committed a class I violation. Sanction 23. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2013). 24. — Under Florida law, in addition to the requirements of Part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of this part, Part II of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under section 408.809, or for the actions of any facility employee: (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility... .(e) A citation of any of the following deficiencies as specified in section 429.19: 1. One or more cited class I deficiencies. § 429.14(1)(a), (e), Fla. Stat. (2013). . . 25. Under Florida law, the Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2)(a), Fla. Stat. (2013). 26. Under Florida law, class I 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 present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. ... The Agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be . levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke the Respondent’s license to operate an assisted living facility and to impose an administrative fine of $10,000.00 against the Respondent. - COUNT H Medical Observation Records I | | 27. Under Florida law, any person who fraudulently alters, defaces, or falsifies any . | medical or other record of an assisted living facility, or causes or procures any such offense to be | committed, commits a misdemeanor of the second degree, punishable as provided in section | 775.082 or section 775.083. § 429.49(1), Fla. Stat., (2013). 28. Under Florida law: ; | The facility must maintain required records in a manner that makes | such records readily available at the licensee’s physical address for review by a legally authorized entity. If records are maintained in an electronic format, facility staff must be readily available to access the data and produce the requested information. For purposes of this section, “readily available” means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request. * * ae (3) RESIDENT RECORDS. Resident records must be maintained on the premises and include: ... 9. (a) Name, address, and telephone number of the health care provider and case manager, if | applicable. (b) A copy of the Resident Health Assessment form, AHCA Form 1823 described in Rule 58A-5.0181, F.A.C. (c) Any | orders for medications, nursing services, therapeutic diets, do not resuscitate orders, or other services to be provided, supervised, or implemented by the facility that require a health care provider’s ; | order. (d) Documentation of a resident’s refusal of a therapeutic i diet pursuant to Rule 58A-5.020, F.A.C., if applicable. (e) The resident care record described in paragraph 58A-5.0182(1)(e), F.A.C. () A weight record that is initiated on admission. Information may be taken from AHCA Form 1823 or the resident’s health assessment. Residents receiving assistance with the activities of daily living must have their weight recorded semi- annually. (g) For facilities that will have unlicensed staff assisting the resident with the self-administration of medication, a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident’s contract. (h) For facilities that manage a pill organizer, assist with self- administration of medications or administer medications for a resident, copies of the required medication records. maintained pursuant to Rule 58A-5.0185, F.A.C. Fla. Admin. Code R. 58A-5.024. 29. Under Florida law, Section 429.34, Florida Statutes, states that in addition to the requirements of section 408.811, any duly designated officer or employee of the department, the Department of Children and Family Services, the Medicaid Fraud Control Unit of the Office of the Attorney General, the state or local fire marshal, or a member of the state or local long-term care ombudsman council shall have the right to enter unannounced upon and into the premises of any facility licensed pursuant to this part in order to determine the state of compliance with the provisions of this part, part II of chapter 408, and applicable rules. Data collected by the state or local long-term care ombudsman councils or the state or local advocacy councils may be used by the Agency in investigations involving violations of regulatory standards. Facts 30. The Agency re-alleges and incorporates by reference the allegations in Count I. 31. On April 11, 2014, the Agency received information from a sister agency that while conducting an investigation at the Facility earlier in the day for an allegation of failure to provide medications as ordered to Resident #9, the API investigator observed the Administrator altering a medication record. 32. The API instructed the Facility Administrator stop the alteration of the record immediately. 33. Based upon the foregoing, the Respondent committed a class I violation. The Agency cited the Respondent with a class I violation for these actions. 34. Based upon the foregoing, the Respondent fraudulently altered,. defaced, or ’ falsified a medical. or other record of an assisted living facility, or causes or procures any such offense. 35. Based upon the foregoing, the Respondent failed to maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity. 36. Based upon the foregoing actions, the Respondent committed an intentional or negligent act that materially affected the health or‘safety of a client of its residents and violated the authorizing statutes and applicable rules. Sanction 37. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2013). 38. Under Florida law, in addition to the requirements of Part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of this part, Part II of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under section 408.809, or for the actions of any facility employee: (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility: ...(e) A citation of any of the following deficiencies as specified in section 429.19: 1. One or more cited class I deficiencies. § 429.14(1)(a), (e), Fla. Stat. (2013). 39. Under Florida law, the Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2)(a), Fla. Stat. (2013). . 40. Under Florida law, class I 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 present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. ... The Agency shall impose an administrative fine as provided by law for a-cited class I violation. A fine shall be levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2013). 41. Under Florida law, the Agency shall impose an administrative fine for a cited Class I violation ‘in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2)(a), Fla. Stat. (2013). | WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke Respondent’s license to operate an assisted living facility and-to impose an administrative fine of $10,000.00 against the Respondent. COUNT Il Intentional and Negligent Acts 42. The Agency re-alleges and incorporates by reference the allegations in Count I and Count II. 43. The Agency has cited the Respondent with two Class I deficiencies for violating resident’s rights and for modifying medical observation records. 44. The Respondent negligently failed to ensure its residents are receiving their required medications, and then has intentionally and fraudulently modified the Medical Observation Records of those resident’s to. manufacture an appearance that the residents did receive their medications. Sanction 45. Under Florida law; in addition to the grounds provided in authorizing statutes, 9 | I | | | | grounds that may be used by the Agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: .. . (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of Part II, Chapter 408, Florida Statutes, the authorizing statutes, or the applicable rules. § 408.815(1)(b)-(c), Fla. Stat. (2013). 46. In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee: (e) A citation’ of any of the following deficiencies as specified in s. 429.19: One or more cited class I deficiencies. § 429.14(1)(e), Fla. Stat. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke the Respondents license to operate an assisted living facility. 10 CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of F lorida, Agency for Health Care Administration, seeks to enter a final order that: 1. Renders findings of fact and conclusions of law as set forth above. 2. Grants the relief set forth above. SUBMITTED this 21st day of April, 2014. AGENCY FOR HEALTHCARE ADMINISTRATION By: Kaas put Che Richard Jogeph Saliba, Esquire Assistant General Counsel Florida Bar No. 0240389 By: Andrew B. Thornquest, Esquire Assistant General Counsel Florida Bar No. 0104832 2727 Mahan Drive, Building #3, MS #3 Tallahassee, Florida 32303 (850) 412-3666 Telephone (Direct) (850) 922-6484 Facsimile Richard.Saliba@ahca.myflorida.com Andrew.Thornquest@ahca.myflorida.com 11 NOTICE OF RIGHTS Pursuant to Section 120.569, F.S., any party has the right to request an administrative hearing by filing a request with the Agency Clerk. In order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), F.S., however, a party must file a request for an administrative hearing that complies with the requirements of Rule 28-106.2015, Florida Administrative Code. Specific options for administrative action are set out in the attached Election of Rights form. ; The Election of Rights form or request for hearing must be filed with the Agency Clerk for the Agency for Health Care Administration within 21 days of the day the Administrative Complaint was received. If the Election of Rights form or request for hearing is not timely received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a hearing will be waived. A copy of the Election of Rights form or request for hearing must also be sent to the attorney who issued the Administrative Complaint at his or her address. The Election of Rights form shall be addressed to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630, Facsimile (850) 921-0158, Any party who appears in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel or other qualified representative, Mediation under Section 120.573, F.S., is available if the Agency agrees, and if available, the pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement.. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to the below named persons/entities by the method designated on this 2 day of April, 2014. Efquire Assistant General Counsel Florida Bar No. 0104832 12 2727 Mahan Drive, Building #3, MS #3 Tallahassee, Florida 32303 (850) 412-3666 Telephone (Direct) (850) 922-6484 Facsimile Richard.Saliba@ahca.myflorida.com Andrew. Thornquest@ahca.myflorida.com Administrator Senior Lifestyles, LLC d/b/a Kipling Manor Retirement Center 7901 Kipling Street ") Pensacola, FL “32514 (Certified Mail — 7012 1010 0003 2438 2101) Elaine Williams, Registered Agent Senior Lifestyles, LLC d/b/a Kipling Manor Retirement Center 505 James River Road Gulf Breeze, FL 32561 (Certified Mail - 7012 1010 0003 2438 2118) John E. Terrel, Esquire Law Office of John E. Terrel 1700 North Monroe Street, Suite 11-116 Tallahassee, FL 32301-0501 (Certified Mail - 7012 1010 0003 2438 2125) 13 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: Senior Lifestyles, LLC, d/b/a Kipling Manor Retirement Center ELECTION OF RIGHTS This Election of Rights form is attached toa Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of int. Your Election of Rights may be , but must be filed with the A. ency Clerk within 21 days by 5:00 p.m., Eastern Time, of the day that you receive the attached proposed agency your selected option is not received by AHCA within 21 days of the day that you received this proposed agency action, you will have waived your right to contest the proposed agency action and a Final Order will be issued. ; (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 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 Telephone: 850-412-3630 Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS —E—E— EL OF THESE 3 OPTIONS OPTION ONE (1) I waive the right to a hearing to contest the allegations of fact and conclusions of law contained in the Administrative Complaint. 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 fine, sanction or other agency action. 14 AHCA No. 2014003859 | PLEASE NOTE: Choesing 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 befoie 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 agency 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. The name, address, telephone number, and facsimile number (if any) of the Respondent. 2. The name, address, telephone number and facsimile number. of the attorney or qualified representative of the Respondent (if any) upon whom service of pleadings and other papers shall be made. 3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. . 4. A statement of when the respondent received notice of the administrative complaint. 5. A statement including the file number to the administrative complaint. Licensee Name: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. ____ Fax No. E-Mail (Optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: 15 “ sho Aine “| 1 ge wuo4 Sd (leqey somes wow sajsue4)) E J9quUNN e1onay @ © uses D4! 4S Gundry VObL pe 0 eo | i nes = ee 4+ iensiiasy 5 ee mjorws ina wsseic ew ‘Auioud Ey elle panied’ ‘a oe : _ odie INAS. “S OLDS SIHL 313 7GNOD *USQNAS | Mia) ee 20 Mj) [ ite eras) ‘serbisay 201425 ali $0 > eu) 2) pied 3 10K 0} reo uy dung SENDER: COMPLETE THIS’ SECTION. ECTION ON: DELIVERY: : | COMPLETE:THIS: ‘ElAgent wee m4 if Restrict ‘El Addressee _ Of Dplivery zy

Docket for Case No: 14-002547