STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vv. AHCA No.: 2016011025 File No.: 11953432 EDEN GARDENS, LLC d/b/a EDEN License No.: 8209 GARDENS ALF Provider Type: Assisted Living Facility Respondent. / ADMINISTRATIVE COMPLAINT The Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), files this Administrative Complaint against the Respondent, Eden Gardens, LLC d/b/a Eden Gardens ALF (“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 impose fines totaling $46,000.00 against the Respondent and to revoke the Respondent’s license to operate an assisted living facility. 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. (2015); 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. 2. The Respondent was issued a license by the Agency to operate an assisted living facility (‘the Facility”) located at 12221 W. Dixie Highway, North Miami, Florida, 33161, and was at all times material required to comply with the applicable state statutes and rules. § 429.11, Fla. Stat. (2016). COUNT I Resident Supervision 3. Under Florida law: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: (a) Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the resident. (c) Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. Rule 58A-5.0182(1), F.A.C. (2015). Facts Resident #1 4. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 5. Based on record review and interview, the Agency determined that the Respondent failed to maintain a general awareness of the residents. 6. On or about August 24, 2016, the Agency interviewed Respondent’s Administrator. The Administrator stated that Resident #1 had left the facility on Monday, August 22, 2016 at about 9 pm and that he had been found dead in a nearby canal on Tuesday August 23, 2016 at about 5 pm. 7. On or about August 24, 2016, the Agency interviewed Respondent’s employee Staff E. Staff E stated that she worked the night of August 22, 2016 as a med tech. Staff E said that as far as she knows Resident # 1 did not get the resident’s night medications on the 22™, which are normally passed out beginning at 8 p.m. Staff E stated that she believes Staff J was the last person to see Resident #1 at the facility. 8. On or about August 24, 2016 the Agency interviewed Respondent’s employee Staff J. Staff J stated that she saw Resident #1 at dinner time on August 22, 2016, where the resident was acting normal. Staff J further stated that she went to Resident #1’s room during rounds and found the resident’s bed was not made and the room empty. Staff J said that the bed not being made was weird for the resident. 9. Staff J subsequently stated that she alerted her supervisor, Staff E, about Resident #1 not being found in the room. StaffE also stated that Resident #1 was on the list of residents that are allowed to go out. 10. _—‘ Finally, Staff J stated that when she made her next round at 9 p.m. Resident #1’s bed was still the same, which she told Staff E about again. Staff J stated that when she left the Facility at 11 p.m. on August 22, 2016, Resident #1 had not come back yet. 11. On or about August 24, 2016, the Agency interviewed Respondent’s employee Staff K. Staff K stated that she saw Resident #1 around 2:40 p.m. Staff K further stated that Resident #1 was always walking or sitting at the dining room. 12. Staff K stated to the Agency that the person at the front desk leaves at 8 p.m. and then employees sit one hour each from 8 to 9, 9 to 10 and 10 to 11 p.m. Staff K said that she did the 10 to 11 p.m. shift at the front desk on August 22, 2016, but and Resident #1 was already reported as gone. 13. Staff K finally stated that Resident #1 did not go out that much but he was always walking around the facility. Staff K stated that she last saw Resident #1 at the snack time around 8 p.m. on August 22, 2016. 14. On or about August 24, 2016 the Agency conducted a record review of Resident #1’s medical records. The review showed that 8:00 p.m. medications for Resident #1 on August 22, 2016 were signed for by Staff E. A review of the medication bubble pack for Resident #1’s 8:00 p.m. medications on August 22, 2016 showed that the medications were gone. 15. On August 24, 2016, the Agency interview Staff E again. Staff E stated that she got nervous because Resident #1 was missing, and she got confused and signed the medications. 16. On or about August 25, 2016, the Agency interviewed the detective in charge of Resident #1°s case. The detective stated that his department received an anonymous call from a person saying there was a body floating in the canal, around 120" street and West Dixie Highway. The detective also stated that resident’s father had also filed a missing person report. The Detective said there had not been a rule on the cause of death of Resident #1. 17. On or about August 26, 2016 the Agency interviewed Respondent’s employee Staff F. Staff stated that Resident #1 would be up all night pacing between the living room and his bedroom. Staff further stated that Resident #1 would go out sometimes, to the store, but he usually came back. 18. Onor about August 26, 2016 the Agency interviewed Respondent’s employee Staff C. Staff C stated that Resident # 1 did have a decrease of Benzetropine about a month ago, and the doctor added Restoril (Temazepam 30 mg) for insomnia. 19, Staff C confirmed that two months before the staff reported Resident #1 was unable to sleep, So Staff C called Resident #1’s doctor and the doctor added sleeping medication. Staff C stated that she may have forgotten to document that Resident #1 was not sleeping well. 20. During further interview on August 29, 2016 Staff C stated that she informed the Facility’s general practitioner about Resident #1's change of condition. Staff C stated that she told the Practitioner that Resident #1 was not sleeping well. Staff C also stated that Resident #1 was seen by a nurse when the resident’s insurance changed, but the psychiatrist was a separate doctor. 21. The Agency reviewed Resident #1’s medication records, but found no evidence of a change of condition. 22. On or about August 29, 2016 the Agency interviewed Resident #32. Resident #32 stated that Resident #1 was his roommate until 2 months ago. Resident #32 stated that Resident #1 was up and down all night pacing. 23. Resident #32 further stated that he had told staff what was going on and asked staff to move him from the room shared with Resident #1, but the Facility moved Resident # 1 instead. Resident #32 finally stated that he does not believe Resident #1 was taking prescribed medication at all. 24, The Agency reviewed the Facility’s elopement policy, which showed that residents were to be re-evaluated annually to assess elopement risk. 25. Resident #1’s most recent elopement assessment for was completed on September 30, 2013. Resident #2 26. On or about August 25, 2016, Respondent’s employee Staff C stated that Resident #2 was found deceased in a bathroom of natural causes. 27. On or about August 26, 2016, the Agency interviewed Respondent’s employee StaffF. Staff F stated that as part of her duty on the 11 p.m.- 7 a.m. shift, she checks on the residents several times at night; first when she comes on shift 11 p-m., 3 a.m., and then 6 a.m. 28. Staff F stated that on Saturday, August 20, 2016 she saw Resident #2 in his/her room watching TV and the resident gave her the thumbs up sign. Then, on the following morning of Sunday morning, August 21, 2016 during the 6:30 a.m. check she found the Resident #2 in the bathtub, with the water running, slumped over and unresponsive. Staff F continued to state that Resident #2 did not have any bloody cuts or bruising, and his/her skin was warm to the touch, 29. Additionally, Staff F stated that she did not perform CPR, but went to get help from other staff. Staff F stated that she called the Administrator, called 91 1, and the doctor. Once the Paramedics arrived to attend to the resident, Staff F said they informed her Resident #2 had died. 30. Staff F finally that she had not checked the resident at 3 a.m. 31. Respondent’s employees Staff F, Staff Q, and Staff P confirmed to the Agency that the Facility’s policy is for employees to do rounds every 3 hours. 32, The Agency reviewed the “rounds sheet” for Saturday through Sunday, August 20- August 21, 2016. The sheet showed that Staff F initialed the sheet at midnight, 3 a.m. and 6 a.m. to indicate that she had seen Resident #2 at each of these times. 33. Onor about August 26, 2016, the Agency interviewed the police detective in charge of Resident #2’s investigation. The detective said that there was “no way” that Resident #2 was alive 3 hours before being found. The detective elaborated and stated that Resident #2 had been dead for “a long time” because he/she was unrecognizable, and the police needed to identify him/her in other ways than facial recognition. 34. The detective further stated that he estimated Resident #2 had been dead for more than 10 hours. The detective described Resident #2’s body as “peeling away,”, his/her skin was purple, and when the police tried to lift him/her up, the skin started to fall off. 35. On or about August 26, 2016, the Agency interviewed a worker from the county medical examiner’s office. The medical examiner employee stated that Resident #2 was decomposing, and estimated that he/she had been dead close to 24 hours. 36. The Agency reviewed the Medical Examiner’s report regarding Resident #2. The report shows Resident #2 was found in a modcrate state of decomposition described as “putrefaction decomposition.” The report further documented that Resident #2’s body was bloated, the skin is diffusely slipping, and there is “dark red and green discoloration and venous marbling of the skin” in various places. 37. On or about August 29, 2016, the Agency interviewed Resident #32. Resident #32 stated that Resident #2 was not seen for breakfast, lunch, or dinner Saturday. Resident #32 further stated that he/she notified Staff J after Resident #32 kept knocking on Resident #2’s door without a response. Resident #32 additionally stated that he/she did not observe staff go into Resident #2’s room on August 20, 2016. 38. Finally, Resident #32 stated that Facility staff docs not do rounds or check on people during the day, although sometimes at 3 p.m. they will go into units and check on people, but not usually. 39. On or about August 29, 2016 the Agency interviewed Resident #59. Resident #59 stated that Facility staff used to do bed checks once a day prior to Resident #2’s death. Resident #59 also stated that he/she did not see Resident #2 on Saturday August 20, 2016. 40. On or about August 29, 2016, the Agency interviewed Resident #43. Resident #43 stated that he/she saw Resident #2 keep falling asleep on Friday August 19, 2016, and that was unusual for Resident #2. Resident #43 stated that he/she did not see Resident #2 on Saturday August 20, 2016, Resident #43 further stated that he/she saw Staff knock on Resident #2’s door but not enter the room. 41. | Onorabout August 26, 2016 the Agency interviewed Respondent’s employee Staff H. Staff H stated that he knocked on Resident #2’s door around 7 or 8 at night on Saturday August 20, 2016 but did not enter Resident #2’s room. Staff H stated that he heard Resident #2’s TV on, and that residents in room 48 or 49 said Resident #2 was watching TV. 42. On or about August 29, 2016, the Agency interviewed Respondent’s employee Staff AA. Staff AA stated that she did not see Resident #2 during her shift on August 20, 2016, which was from 7 a.m. until 3 p.m. Staff AA then stated that she asked a fellow resident about Resident #2 at lunch time on Saturday, and was told Resident #2 might be out. 43. On or about August 29, 2016, the Agency interviewed Respondent’s employee Staff DD. Staff DD stated that she marked an “X” on the rounds sheet for the 7 a.m. to 3 p.m. shift for Resident #2 because she was told Resident #2 was attending a funeral outside of the facility. Staff DD stated she knocked on Resident #2’s door but did not enter the room. 44. On or about August 29, 2016, the Agency interviewed Respondent’s employees Staff X, Staff BB, and Staff CC. All three stated that they worked shifts on Saturday August 20, 2016 at the Facility. All three stated that they did not see Resident #2 on Saturday. 45. | Onor about August 29, 2016, the Agency interviewed the listed emergency contact for Resident #2. The emergency contact stated that he had tried to call Resident #2 twice on Saturday August 20, 2016, but Resident #2 did not answer either time. 46. | The Agency reviewed Resident #2’s health care assessment (“1823 form”). The form revealed that Resident #2 required supervision with bathing and daily oversight. 47. On or about august 29, 2016, the Agency conducted an interview with Resident #2’s primary care doctor. The doctor stated that Resident #2 was diagnosed with severe osteoarthritis and morbid obesity. The doctor further stated that Resident #2 had previously walked with assistance from a walker. However, the doctor then stated that she saw Resident #2 on August 17, 2016 and the resident had declined. The Doctor stated that she prescribed a wheelchair for Resident #2 on the August 17" visit. 48. The Agency was unable to find any documentation on this change in Resident #2’s condition in the Facility records, Facility Practices 49. A review of the staff communication log, resident records, the elopement log, and interviews with staff showed that there is a high prevalence of vulnerable residents being out of the facility, even overnight, without staff knowing their whereabouts. 50. On or about August 26, 2016, the Agency reviewed the Facility census. The census showed that there 118 residents, 112 of which were in-facility. 6 other residents were shown as hospitalized. 51. The Agency reviewed the Facility’s staff schedule for August 26, 2016 and found only 3 staff members listed to provide care to 112 residents. 52. On or about August 26, 2016, the Agency interviewed Respondent’s employee Staff Q. Staff Q confirmed only 3 caregivers were scheduled and stated that the 11 p.m. to 7 a.m. shift was always staffed with only 3 people. Staff Q also stated that the employees use their cellphones to communicate with each-other on shift. 53. On or about August 26, 2016, the Agency interviewed Respondent’s employee Staff F. Staff F stated that some residents insist on going out of the Facility, but the employees try not to let them out. Staff F then stated that some residents insist on going out at around 6:30 a.m. to go to the convenience store, but they usually come back. 34. Staff F specifically mentioned that Resident #57 will leave the Facility all night about once a week. Staff F stated that sometimes he is out on business, and sometimes he does not tell the employees where he is going and they don’t know his whereabouts. 55. On or about August 26, 2016, the Agency observed Resident #9 in the shower alone. Resident #9 was blind. Staff Q stated that he does not need to stay with Resident #9 because the resident will be all right and Staff Q had already laid the resident’s close out for him/her. 56. The Agency reviewed the 1823 records of Resident #10, which listed the resident as having diagnoses of Peripheral Neuropathy, Anxiety, Insomnia, and Psychosis. Resident #10's 1823 also documented slow gait with spasticity and imbalance. The 1823 form finally showed that Resident #10 requires assistance with bathing, dressing, grooming, and toileting. 57. The Facility’s resident observation log documented that Resident #10 had 6 incidents of falls which resulted in a trip to the hospital on the following dates: March 16, 2016; July 17, 2016; July 29, 2016; August 22, 2016; August 29, 2016; and August 30, 2016. Additionally, the Facility observation log listed 1 other falling incident for Resident #10 on August 20, 2016. The Agency found no evidence that the Facility had taken any precaution to prevent Resident #10 from falling other than sending the resident to the hospital after a fall. 58. The Agency reviewed Resident #32’s records, which revealed that Resident #32 10 was admitted to the Hospital on August 22, 2016. Resident #32 was discharged with a recommendation for follow-up with the Primary Care Physician within 1-2 days. 59. | The Agency reviewed the Facility’s progress notes dated August 21, 2016 that indicated that Resident #32 was going out of the Facility to visit a friend. No progress notes were found detailing a hospital visit or follow-up. 60. On or about August 29, 2016, the Agency interviewed Resident #32. Resident #32 stated that he was allowed to come and go from the facility. Resident #32 also stated that he/she had fallen and scraped his/her knee on August 27, 2016. Resident #32 finally stated that the resident informed a caregiver of the wound but that his/her knee was very sore and he/she desired someone to look at it. 61. On or about August 29, 2016, the Agency interviewed the Respondent’s Administrator. The Administrator stated that she had spoken with Resident #32 but was unaware of his/her knee pain. The Administrator also stated that she was unaware that Resident #32’s previous hospitalization. 62. The Agency reviewed Resident #34’s records. Resident #34’s 1823 form revealed a diagnoses of Insulin Dependent Diabetes Mellitus and Psychosis; an order from a medical doctor dated stating that he was able to self-administer his medications including Insulin. The resident has a guardian (for financial affairs only). 63. On August 31, 2016 the Agency interviewed Resident #34. Resident #34 stated that he/she was diabetic and was on insulin until the past month. Resident #34 also stated that he/she doesn't check his/her blood sugar because "I know when it is high." Resident #34 finally stated that he/she has chosen not to take insulin due to it hurting his/her heart. 64. Resident #34 also stated that he/she goes to a primary physician, a cardiologist, and 11 other specialists, but had not informed any physician that he had stopped taking his insulin 65. On or about August 31, 2016, the Agency interviewed Staff C. Staff C stated that she was informed by Resident #34 that he/she was not taking insulin during August and she did not contact any physician or the Resident’s guardian. She further stated, the resident made his/her own decision not to take insulin since he/she had a prescription to self- medicate. 66. Onor about September 2, 2016, the Agency interviewed Resident #34’s physician. The physician stated that the resident has been his patient for a long time and is noncompliant with medications. The physician stated he felt Resident #34 was able to administer his/her own medications but he/she makes poor safety decisions and has a history of not taking his/her medications. 67. The physician further stated that Resident #34 missed his/her last appointment. The physician finally stated that he had not been notified that Resident #34 was not taking his/her insulin or checking his/her blood sugar. 68. On or about August 31, 2016, the Agency reviewed Resident #33’s resident records. The record revealed that Resident #3 was sent to the hospital on August 27, 2016 for pain and lack of appetite. There was no documentation of follow-up or review of the Resident’s condition upon his/her return to the Facility. 69. On or about August 31, 2016, the Agency interviewed the Respondent’s Administrator. The Administrator stated that she was aware that Resident #33 had gone out to the hospital for evaluation. However, the Administrator was unable to provide any documentation of the staff observing or evaluating Resident #33 upon the resident’s return from the hospital. 70. On or about August 25, 2016, the Agency interviewed Staff C. Staff C stated that the residents that go in and out all the time do not sign out, but they come to the nurse’s station to 12 let the Facility know they are leaving. Staff C further stated that if the residents go to an appointment or out with their family the staff will write it down on the Shift Report Book. 71. On or about August 28, 2016, the Agency observed Staff EE enter “unknown” for the status of Residents #58 and #59 in the Shift Report Book after failing to see them at the 12 p.m. and 2 p.m. checks. 72. Onorabout August 25, 2016, the agency interviewed multiple residents about their opinions of the staffing at Respondent’s Facility. Residents #40, #31, and #60 stated that there is not enough staff to take care of people. Resident # 41 was unsure if there was enough staff, and thought the staff played favorites. Resident # 24 stated that there are no phones in the room, if residents need help they have to wait for Staff to pass by. Resident #54 stated that the staff members are busy, and if someone calls their name, they will pass them by without acknowledgment. 73. Finally, Resident # 46 stated that at night there is no help if there is an emergency, and the lady that helps him/her at night is rude. Resident #46 stated that he/she don't ask her for help with adult brief changes because he/she said they will do it themselves. 74. Based upon the foregoing, the Respondent committed a Class I violation. Sanction 75. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2016). 76. Under Florida law, in addition to the requirements of part Il 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 13 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: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 77. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 78. Under Florida law, in pertinent part, 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. § 408.813(2)(a), Fla. Stat. (2016). 79. Under Florida law, 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: (a) Class “I” violations are defined in s. 408.813. 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. 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 seeks to impose an administrative fine of $10,000.00 against the Respondent. 14 80. COUNT II Resident’s Rights Under Florida law: (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 Program must 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 must 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 must be able to demonstrate that such procedure is implemented upon receipt of a complaint. * * * (d) The facility must have a written statement of its house rules and procedures that must be included in the admission package provided pursuant to Rule 58A-5.0181, F.A.C. The rules and procedures must at a minimum address the facility’s policies regarding: 1. Resident responsibilities; 2. Alcohol and tobacco; 3. Medication storage; 4. Resident clopement; 5. Reporting resident abuse, neglect, and exploitation; 6. Administrative and housekeeping schedules and requirements; 7. Infection control, sanitation, and universal precautions; and 8. The requirements for coordinating the delivery of services to residents by third party providers. Rule 58A-5.0182(6), F.A.C. (2016). 81. Under Florida law, 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. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (c) Retain and use his or her own clothes and other personal property in his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an 15 infringement upon the rights of other residents. * * * (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. (1) Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. Each facility shall establish a grievance procedure to facilitate the residents’ exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. § 429.28(1), Fla. Stat., (2016). (in pertinent part) Facts 82. | The Agency re-alleges and incorporates by reference all of the facts listed in Count I of this complaint. 83. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 84. Based on record review, interview and observation, the Agency determined that the Respondent failed to honor resident rights to live in a safe and decent living environment, free from neglect and abuse, to be treated with consideration and respect and with due recognition of personal dignity, individuality; and to have access to adequate and appropriate health care consistent with established and recognized standards within the community, for 75 residents. 85. On or about August 26, 2016 the Agency interviewed Resident #54. Resident #54 stated that he/she collects bedbugs off of his/her body and is bitten every night. Resident #54 continued to state that her partner’s mattress was removed but the resident’s mattress had yet to be taken. Resident #54 said the bedbugs had been present for about 4 months and the exterminator is only doing a partial job; the resident felt miserable. 16 86. On or about August 31, 2016 the Agency interviewed Resident #55. Resident #55 stated that every morning about 2 or 3 a.m. he/she gets bitten by bed bugs. The Agency observed marks on the resident’s arm that Resident #55 stated were bed bug bites. 87. On or about August 26, 2016, the Agency reviewed the Facility state health inspection records which showed that the Facility was being treated for a bedbug infestation. 88. On or about August 26, 2016 the Agency reviewed the Respondent’s staff communication book. The communication book revealed that on July 2, 2016, two residents “sot physical” over one resident eating another’s banana. Then on July 3, 2016 a female resident complained that male resident was sexually harassing her. There was no evidence that staff or any Facility representative spoke to the residents about this behavior. 89. On or about August 26, 2016, the Agency observed a resident holding a half full urinal with no privacy screen around. The Agency interviewed Staff Q, Respondent’s employee about this resident, Staff Q responded that the resident uses the urinal at his bedside. 90. The Agency also observed Respondent’s Employee Staff O assisting Resident #27 with bathing. Staff O undressed Resident O without first closing the door. Resident #27 was observed naked in a wheel chair in front of the resident’s roommate and an additional resident in the hallway. 91. Resident #27 was given adult briefs after the shower, but left topless without closing the door or ensuring the resident’s privacy. 92. The Agency finally observed three employees assisting Resident #17 with an adult brief change. The employees changed Resident #17’s adult brief in front of his/her roommate and with the door open. 93. Based upon the incorporated information and foregoing facts, the Respondent 17 commnitted a Class I violation. Sanction 94. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2016). 95. 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 s. 408.809, or for the actions of any facility employee: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 96. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 97. Under Florida law, in pertinent part, 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. § 408.813(2)(a), Fla. Stat. (2016). 98. Under Florida law, 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. 18 The agency shall indicate the classification on the written notice of the violation as follows: (a) Class “T” violations are defined in s. 408.813. 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. 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 seeks to impose an administrative fine of $10,000.00 against the Respondent. COUNT III Staffing Standards 99, Under Florida law, (3) STAFFING STANDARDS. (a) Minimum staffing: 1. Facilities must maintain the following minimum staff hours per week: Number of Residents Staff Hours/Week 0-5 168 6-15 212 16-25 253 26-35 294 36-45 335 46-55 375 56-65 416 66-75 457 76-85 498 86-95 539 For every 20 residents over 95 add 42 staff hours per week. 2. Independent living residents as referenced in subsection 58A- 5.024(3), F.A.C., who occupy beds included within the licensed capacity of an assisted living facility and who receive no personal, limited nursing, or extended congregate care services, are not counted as a resident for purposes of computing minimum staff hours. 3. At least one staff member who has access to facility and resident records in case of an emergency must be in the facility at all times when residents are in the facility. Residents serving as paid or volunteer staff may not be left solely in charge of other residents while the facility administrator, manager or other staff are absent from the facility. 4. In facilities with 17 or more residents, there must 19 be at least one staff member awake at all hours of the day and night. 5. A staff member who has completed courses in First Aid and Cardiopulmonary Resuscitation (CPR) and holds a currently valid card documenting completion of such courses must be in the facility at all times. a. Documentation of attendance at First Aid or CPR courses offered by an accredited college, university or vocational school; a licensed hospital; the American Red Cross, American Heart Association, or National Safety Council; or a provider approved by the Department of Health, satisfies this requirement. b. A nurse is considered as having met the course requirements for both First Aid and CPR. In addition, an emergency medical technician or paramedic currently certified under Chapter 401, Part III, F.S., is considered as having met the course requirements for both First Aid and CPR. 6. During periods of temporary absence of the administrator or manager of more than 48 hours when residents are on the premises, a staff member who is at least 21 years of age must be physically present and designated in writing to be in charge of the facility. No staff member shall be in charge of a facility for a consecutive period of 21 days or more, or for a total of 60 days within a calendar year, without being an administrator or manager. 7. Staff whose duties are exclusively building or grounds maintenance, clerical, or food preparation do not count towards meeting the minimum staffing hours requirement. 8. The administrator or manager’s time may be counted for the purpose of meeting the required staffing hours, provided the administrator or manager is actively involved in the day-to-day operation of the facility, including making decisions and providing supervision for all aspects of resident care, and is listed on the facility’s staffing schedule. 9. Only on-the-job staff may be counted in meeting the minimum staffing hours. Vacant positions or absent staff may not be counted. (b) Notwithstanding the minimum staffing requirements specified in paragraph (a), all facilities, including those composed of apartments, must have enough qualified staff to provide resident supervision, and to provide or arrange for resident services in accordance with the residents’ scheduled and unscheduled service needs, resident contracts, and resident care standards as described in Rule 58A- 5.0182, F.A.C. (c) The facility must maintain a written work schedule that reflects its 24-hour staffing pattern for a given time period. Upon request, the facility must make the daily work schedules of direct care staff available to residents or representatives, for that resident’s care. (d) The facility must provide staff immediately when the agency determines that the requirements of paragraph (a) are not met. The facility must immediately increase staff above the minimum levels established in paragraph (a) if the agency determines that adequate 20 supervision and care are not being provided to residents, resident care standards described in Rule 58A-5.0182, F.A.C., are not being met, or that the facility is failing to meet the terms of residents’ contracts. The agency will consult with the facility administrator and residents regarding any determination that additional staff is required. Based on the recommendations of the local fire safety authority, the agency may require additional staff when the facility fails to meet the fire safety standards described in Section 429.41(1)(a), F.S., and Rule Chapter 69A-40, F.A.C., until such time as the local fire safety authority informs the agency that fire safety requirements are being met. 1. When additional staff is required above the minimum, the agency will require the submission of a corrective action plan within the time specified in the notification indicating how the increased staffing is to be achieved to meet resident service needs. The plan will be reviewed by the agency to determine if the plan increases the staff to needed levels to meet resident needs. 2. When the facility can demonstrate to the agency that resident needs are being met, or that resident needs can be met without increased staffing, modifications may be made in staffing requirements for the facility and the facility will no longer be required to maintain a plan with the agency. Rule 58A-5.0185(2), F.A.C. (2015). Facts 100. The Agency re-alleges and incorporates by reference all of the facts listed in Count I, and Count I] of this complaint. 101. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 102. Based on observation, record review, and interview, the Agency determined that the Respondent failed to ensure adequate staffing to mect resident needs for 75 residents. 103. On or about August 26, 2016 the Agency interviewed Staff Q. Staff Q stated that three people were on duty for the morning shift at the Facility. Staff Q stated that he communicates with other staff members via personal cell phones. 104. Staff Q further stated that he was not aware of the resident census, he just follows 21 the rounds sheet he is given. Staff Q stated that at 5 a.m. the staff members start showering the residents, at which time he is responsible for showering the male residents. 105. On or about August 26, 2016, the Agency observed Staff Q assisting Resident #9, a blind resident, in the shower. Staff Q left Resident #9 alone in the shower the duration of the Agency’s Facility tour, which lasted approximately 45 minutes, 106. Based upon the incorporated and foregoing facts, the Respondent committed a Class I violation. Sanction 107. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2016). 108. 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 s. 408.809, or for the actions of any facility employee: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 109. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 110. Under Florida law, in pertinent part, class I violations are those conditions or 22 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. § 408.813(2)(a), Fla. Stat. (2016). 111. Under Florida law, 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: (a) Class “I” violations are defined in s. 408.813. 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. 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 seeks to impose an administrative fine of $10,000.00 against the Respondent. COUNT IV Elopement Standards 112. Under Florida law: (8) ELOPEMENT STANDARDS. (a) Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. 1. As part of its resident elopement response policies and procedures, the facility must make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention must be directed towards residents assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease or related disorders assessed at high risk. 2. At a minimum, the facility must have a photo identification of at risk residents on file that is accessible to all facility staff and law enforcement as necessary. The facility’s file must contain the resident’s photo identification within 10 days of 23 admission or within 10 days of being assessed at risk for elopement subsequent to admission. The photo identification may be provided by the facility, the resident, or the resident’s representative. (b) Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: 1. An immediate search of the facility and premises; 2, The identification of staff responsible for implementing each part of the clopement 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. (c) Facility Resident Elopement Drills. The facility must conduct and document resident elopement drills pursuant to Sections 429.41(1)(a)3. and 429.41(1)(), F-S.. Rule 58A-5.0182(8), F.A.C., (2016). Facts 113. The Agency re-alleges and incorporates by reference all of the facts listed in Count I, Count II, and Count III of this complaint. 114. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 115. Based on observation, record review, and interview, the Agency determined that the Respondent failed to follow elopement policies for 35 residents. 116. Onor about August 24, 2016, the Agency reviewed the Facility elopement policies. The Agency found that all residents must be evaluated annually to assess elopement risk. 117. The Agency then reviewed the resident records of 118 current and former residents at Respondents Facility. 118. The Agency found that 27 residents had not had elopement assessments completed. 119, The Agency’s review also found that Residents #1, #9, #35, and #37 had their last 24 elopement assessments updated on September 30, 2013, nearly three years prior. 120. The Agency found that the Facility had identified 23 residents as elopement risks, however only 17 photos were contained in the Elopement Risk Binder. 121. The Agency found that Residents #4, #6, #21 and #50 were identified as elopement risks, but neither resident’s health assessment forms identified them as elopement risks. 122. The Agency found Residents #3 and 19 were not identified as elopement risks, but their health assessment identified them as an elopement risk. 123. The Agency found Residents #18 and #10 had no elopement assessments done, but their health assessments identified both as elopement risks. 124. Residents #22 had no elopement assessment done and was not identified as an elopement risk on his/her health assessment, but was identified on the Facility’s elopement risk list. 125. Per the Facility’s Elopement Risk Assessment form, if a resident had 2 or more Potential Risk Factors, or | Definitive Risk Factor, the resident must be identified as an elopement risk. 126. Resident #35 had 2 Potential Risk Factors and 1 Definitive Risk Factor identified by the Facility. Resident #35 was not identified as an elopement risk. 127. Resident #45 had 2 Potential Risk Factors and 1 Definitive Risk Factor identified by the Facility. Resident #45 was not identified as an clopement risk. 128. Resident #5 had 3 Potential Risk Factors identified by the Facility. Resident #5 was not identified as an elopement risk. 129, Resident #48 had 3 Potential Risk Factors identified by the Facility. Resident #48 was not identified as an elopement risk. 25 130. The Facility’s last documented Elopement Drill was conducted on December 8, 2015. 131. Based upon the foregoing, the Respondent committed a Class II violation. Sanction 132. 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 s. 408.809, or for the actions of any facility employee: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 133. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (6) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 134. Under Florida law, 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. § 408.813(2)(b), Fla. Stat. (2016). 135. | Under Florida law, 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. § 429.19(2)(b), Fla. Stat. (2016). 26 WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $5,000.00 against the Respondent. COUNT V Medication Storage and Disposal 136. Under Florida law: (6) MEDICATION STORAGE AND DISPOSAL. (b) Centrally stored medications must be: 1. Kept in a locked cabinet, locked cart, or other locked storage receptacle, room, or area at all times; 2. Located in an area free of dampness and abnormal temperature, except that a medication requiring refrigeration must be refrigerated. Refrigerated medications must be secured by being kept in a locked container within the refrigerator, by keeping the refrigerator locked, or by keeping the area in which refrigerator is located locked; 3. Accessible to staff responsible for filling pill-organizers, assisting with self-administration, or administering medication. Such staff must have ready access to keys or codes to the medication storage areas at all times; and 4. Kept separately from the medications of other residents and properly closed or sealed. Rule 58A-5.0185(6)(b), F.A.C., (2016). Facts 137. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 138. Based on record review, interview and observation, the Agency determined that the Respondent failed to appropriately secure centrally stored medications, including narcotics and diabetic supplies. 139. On or about August 26, 2016, the Agency observed the Facility’s nurse’s station, where ali centrally stored medications were located, unlocked and open to the main rooms of the Facility. Inside the nurse’s station, the Agency observed large blue bins holding medications delivered by the pharmacy for the entire month of September 2016. Narcotics were among the 27 medications in the blue bins, along with diabetic insulin inside a refrigerator. Continued observation found medical supplies were on the counter, including a filled biohazard waste container with used needles and syringes. Finally, the Agency observed numerous medication cards on desk tops, propped against the floor, and on counter tops. 140. The Agency further observed residents freely entering the nurse’s station to retrieve toilet paper rolls, as well as residents lining up and being brought into the room. 141. On or about August 27, 2016, the Agency again observed the nurse’s station door wide open, with client charts out and medication cabinets unlocked. The Agency observed a resident enter the room and pour herself a cup of water into a cup from a pitcher kept on the medication cabinet. 142. On or about August 27, 2016 the Agency interviewed Resident #43. Resident #43 stated that there are always pills on the floor in the nurse’s station and anyone could pick them up and take them. 143. On or about August 29, 2016, the Agency observed the medication room door open with medication bubble packs on counters. No facility staff were present in the room. 144. On or about August 31, 2016, the Agency interviewed the Respondent’s Administrator. The Administrator stated that the room was being used as a nurse’s station and medication room, as well as the area for Home Health Nurses to administer insulin to diabetic residents. The Administrator further stated that her expectations were for the door to remain closed and locked when staff members are not present in the room. 145. The Administrator continued to state that the stacks of medication cards were the September medications, which were being organized by the Assistant Administrator. The Administrator stated that organizing the medication cards could take days. 28 146. The Administrator finally stated that the room remained locked and the residents did not have access to the narcotic medications in the open bins, 147. Onor about September 3, 2016, the Agency observed medications on a desk in the nurse’s station which included Oxycodone, Tramadol, and other narcotics. 148. On or about September 3, 2016, the Agency interviewed Staff #43 who stated that the medications on the desk were Resident #33’s. Staff #43 stated that Resident #33 self- administers his/her medication and he/she had recently delivered them, but they had not been placed in the storage cabinet yet. 149. Based upon the foregoing, the Respondent committed a Class II violation. Sanction 150. 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 s. 408.809, or for the actions of any facility employee: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 151. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 152. Under Florida law, class “II” violations are those conditions or occurrences related 29 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. § 408.813(2)(b), Fla. Stat. (2016). 153. | Under Florida law, the Agency shall impose an administrative fine for a cited Class IJ violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. § 429.19(2)(b), Fla. Stat. (2016). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $5,000.00 against the Respondent. COUNT VI Physical Plant & Environment 154. Under Florida law: (3) OTHER REQUIREMENTS. (a) All facilities must: 1. Provide a safe living environment pursuant to Section 429.28(1)(a), F.S.; 2. Be maintained free of hazards; and 3. Ensure that all existing architectural, mechanical, electrical and structural systems, and appurtenances are maintained in good working order. (b) Pursuant to Section 429.27, F.S., residents must be given the option of using their own belongings as space permits. When the facility supplies the furnishings, each resident bedroom or sleeping area must have at least the following furnishings: 1. A clean, comfortable bed with a mattress no less than 36 inches wide and 72 inches long, with the top surface of the mattress at a comfortable height to ensure easy access by the resident; 2. A closet or wardrobe space for hanging clothes; 3. A dresser, chest or other furniture designed for storage of clothing or personal effects; 4. A table or nightstand, bedside lamp or floor lamp, and waste basket; and 5. A comfortable chair, if requested. (c) The facility must maintain master or duplicate keys to resident bedrooms to be used in the event of an emergency. (d) Residents who use portable bedside commodes must be provided with privacy during use. (c) Facilities must make available linens and personal laundry services for residents who require such services. Linens provided by a facility must be free of tears, stains and must not be threadbare. 30 Rule 58A-5.023(8), F.A.C. Facts 155. The Agency re-alleges and incorporates by reference all of the facts listed in Count T and Count II of this complaint. 156. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 157. Based on record review, interview and observation, the Agency determined that the Respondent failed to provide a safe living environment for 75 residents. 158. On or about August 25, 2016, the Agency observed the Facility’s TV room. The rooms chairs were ripped and had holes in them. 159. On or about August 29, 2016 the Agency observed debris-wood, broken TV screens, and used oil in the back area of the Facility. The Agency further observed an odor of urine in Room #29. 160. The Agency also observed 3 cats inside the facility, including one on Room #56’s bed. No evidence of immunization was provided for the cats. 161. On or about August 31, 2016, the Agency observed the toilet for Room #26 was clogged and not functional. There was no shower curtain, the electrical outlet was missing a cover, and the bathroom floor was dirty in Unit #26. The Agency further observed a damaged and chipped away wall near Room #29. 162. On or about August 26, 2016, the Agency reviewed the Facility state health inspection records which showed that the Facility was being treated for a bedbug infestation. 163. On or about August 29, 2016 the Agency interviewed Resident #60. Resident #60 stated that on days when it rains the residents get wet entering the dining room due to a lack of 31 rain gutters. 164. On or about September 2, 2016 the Agency interviewed the Facility Administrator. The Administrator stated that Resident #30 was out of the Facility with the resident’s parents and did not allow the Facility to have a key to his/her room. The Administrator further stated that Resident #30’s father was supposed to bring the key to the room back 2 days prior, but has not brought the key back. 165. The Facility did not have a duplicate key or access to Resident #30’s room while the resident was away. 166. Based upon the foregoing, the Respondent committed a Class II violation. Sanction 167. 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 s. 408.809, or for the actions of any facility employee: an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.14(1)(a), Fla. Stat. (2016). 168. Under Florida law, in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (b) An intentional or negligent act materially affecting the health or safety of a client of the provider. (c) A violation of this part, authorizing statutes, or applicable rules. § 408.815(1)(b) & (c), Fla. Stat. (2016). 169. Under Florida law, class “II” violations are those conditions or occurrences related 32 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. § 408.813(2)(b), Fla. Stat. (2016). 170. Under Florida law, 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. § 429.19(2)(b), Fla. Stat. (2016). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $5,000.00 against the Respondent. COUNT Vil Background Screening Break in Service 171. Under Florida law, (2) Every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section 33 proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: (6) the person subject to screening has not had a break in service from a position that requires a level 2 screening for more than 90 days. § 408.809(2)(b), Fla. Stat., (2016) Facts 172. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 173. Based on record review, interview and observation, the Agency determined that the Respondent failed to ensure an eligible Level II background screening result for one staff member. (Staff H). 174. On or about August 26, 2016 the Agency reviewed Staff H’s employee file. The employee file contained a Level II background screening result dated October 15, 2014. 175. On or about August 26, 2016, the Agency interviewed Staff H. Staff H stated their hire date was June 7, 2016, almost two years after their background screening date. 176. On or about September 9, 2016, the Agency interviewed the Respondent’s Administrator. The Administrator stated that Staff H worked in a restaurant prior to beginning work at the Facility. 177. Staff H had a more than 90-day break from a position requiring a Level II background screen prior to starting work at the Respondent’s Facility. The Agency found no evidence that Staff H was rescreened prior to starting work at the Facility. 34 Sanction 178. 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 Part I or Chapter 429, Part II of Chapter 408, or applicable rules. § 429.14(1)(f), Fla. Stat. (2016). 179. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: (b) violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2016). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT VHlI Background Screening Attestation 180. Under Florida law: (3) Results of Screening and Notification. (a) Final results of background screening requests will be provided through the Agency’s secure website that may be accessed by all health care providers applying for or actively licensed through the Agency that are registered with the Care Provider Background Screening Clearinghouse. The secure website is located at: apps.ahca.myflorida.com/SingleSignOnPortal. (b) If a Level 2 criminal history is incomplete, a certified letter will be sent to the individual being screened requesting the arrest report and court disposition information. If the letter is returned unclaimed, a copy of the letter will be sent by regular mail. Pursuant to Section 435.05(1)(d), F.S., the missing information must be filed with the Agency within 30 days of the Agency’s request or the individual is subject to disqualification in accordance with Section 435.06(3), FS. 35 (c) The eligibility results of employee screening and the signed Attestation referenced in subsection 59A-35.090(2), F.A.C., must be in the employee’s personnel file, maintained by the provider. Rule 59A-35.090(3), F.A.C., (2016) Facts 181. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 182. Based on record review, interview, and observation, the Agency determined that the Respondent failed to ensure an eligible background screening attestation for 29 staff members. 183. On or about August 31, 2016 the Agency reviewed the Facility’s staff schedule, which showed 29 staff members on schedule. 184. The Agency reviewed the staff files and found no evidence that the 29 staff members had attestations of compliance with their background screening results. 185. On or about August 31, 2016, the Agency interviewed the Facility’s Administrator. The Administrator stated that the 29 staff members were employees of the Respondent and worked in the Facility. The Administrator stated these 29 employees did not have attestations of compliance in their files at the time of survey. Sanction 186. 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 Part I or Chapter 429, Part II of Chapter 408, or applicable rules. § 429.14(1)(f), Fla. Stat. (2016). 187. Under Florida law, the Agency may impose an administrative fine for a violation 36 that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: (b) violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2016). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent COUNT IX Revocation 188. 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, any person subject to level 2 background screening under s. 408.809, or any facility staff: (e) A citation for any of the following violations as specified in s. 429.19: 1. One or more cited class I violations. 2. Three or more cited class II violations. § 429.14(1)(e), Fla. Stat., (2016). (emphasis added). 189. The Agency re-alleges and incorporates by reference all of the facts listed in Count I, Count II, Count III, Count IV, Count V, and Count VI of this complaint. 190. On or about August 24, 2016 through September 6, 2016 the Agency conducted a survey of the Respondent’s facility. 191. The Agency properly cited the Respondent with three (3) Class I violations during this visit. 192. The Agency properly cited the Respondent with three (3) Class IJ violations during this visit. 37 WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke the Respondent’s license to operate an assisted living facility. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, 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. Respectfully Submitted, + Assistaht General Counsel Florida Bar No. 0104832 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #7 Tallahassee, Florida 32303 Telephone: 850-412-3679 Facsimile: 850-922-9634 andrew.thornquest@ahca.myflorida.com 38 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 | Stay of Vo Vew\o4 &% 2016. A: B. Thornquest; Assistant General Counsel Florida Bar No. 0104832 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #7 Tallahassee, Florida 32303 Telephone: 850-412-3679 Facsimile: 850-922-9634 andrew.thornquest@ahca.myflorida.com 39 Imogen Robinson, Administrator Eden Gardens ALF 12221 W. Dixie Highway North Miami, Florida 33161 Certified Mail (#9171999991703322452655) 9 7199 9991 7033 2245 2655 Laura Manville, Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) “Peter A. Lewis, Esquire Counsel for Respondent Arlene Mayo-Davis, Field Office Manager Local Field Office- Region 11 Agency for Health Care Administration (Electronic Mail) 40 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: Eden Gardens, LLC d/b/a Eden Gardens ALF AHCA No. 2016011025 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed agency 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 may be returned by mail or by facsimile transmission, but must be filed with the Agency Clerk within 21 days by 5:00 p.m., Eastern Time, of the day that you receive the attached proposed agency action. If your Election of Rights with 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 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. OPTION TWO (2) I admit the allegations of fact contained in the Administrative Complaint, but wish to be heard at an informal hearing (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, sanction or other agency action should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Administrative Complaint and request a formal hearing (pursuant to Section 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 41 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 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) Thereby 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: 42 English Customer Service USPS Mobile Register / Sign In E2USPSCOM’ Still Have Questions? USPS Tracking® Browse our FAQs > ae Get Easy Tracking Updates > Sign up for My USPS, Tracking Number: $171999991703322452655 Product & Tracking Information Available Actions Postal Product: Features: Certified Mail™ Text Updates DATE & TIME STATUS OF ITEM LOCATION Email Updates November 18, 2016 , 12:16 Delivered, Front pm Desk/Reception MIAMI, FL 33461 Your item was delivered to the front desk or reception area at 12:16 pm on November 18, 2016 in MIAMI, FL 33161. 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Docket for Case No: 17-006437