STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No.: 2019018937 Facility Type: Assisted Living TYVAL ASSISTED LIVING FACILITY, LLC, 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 Tyval Assisted Living Facility, LLC (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2019), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of three thousand five hundred dollars ($3,500.00) based upon two (2) unclassified deficient practices. JURISDICTION AND VENUE The Agency has jurisdiction pursuant to §§ 20.42, 120.60, and Chapters 408, Part Il, and 429, Part I, Florida Statutes (2019). Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 59A-36, Florida Administrative Code, respectively. Respondent operates a six (6) bed assisted living facility located at 3526 Genevra Avenue, Boynton Beach, FL 33436, and is licensed as an assisted living facility, license number 11128. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. That Florida law provides: Care Provider Background Screening Clearinghouse.- (b) Until such time as the fingerprints are enrolled in the national retained print arrest notification program at the Federal Bureau of Investigation, an employee with a break in service of more than 90 days from a position that requires screening by a specified agency must submit to a national screening if the person returns to a position that requires screening by a specified agency. (c) An employer of persons subject to screening by a specified agency must register with the clearinghouse and maintain the employment status of all employees within the clearinghouse. Initial employment status and any changes in status must be reported within 10 business days. (d) An employer must register with and initiate all criminal history checks through the clearinghouse before referring an employee or potential employee for electronic fingerprint submission to the Department of Law Enforcement. The registration must include the employee's full first name, middle initial, and last name; social security number; date of birth; mailing address; sex; and race. Individuals, persons, applicants, and controlling interests that cannot legally obtain a social security number must provide an individual taxpayer identification number. Section 435.12(2), Florida Statutes (2019). 8. That on or about August 5, 2019, the Agency conducted a re-licensure survey of Respondent and its facility. 10. Ll. 12. 13. 14, 15. 16. That based on record review and interviews, Respondent failed to update its employee roster in a timely manner on the Agency’s for Background Screening Clearinghouse database for 4 of 5 sampled staff members, Staffs “B,” “D," “E,” and “F.” That a review of the facility’s employee roster on August 5, 2019, on the Agency’s background screening clearinghouse database revealed Staff “B,* whose hire date was June 23, 2019, was not registered in the clearinghouse. That further review of the facility's employee roster revealed Staff s “D,” “E, and “F” were listed as employees. That on or about August 5, 2019, during an interview with the Administrator, she stated Staffs “D,” “E, and “F” were ne longer employed with the facility and were not on the facility schedule. That Petitioner’s representative requested exit dates for Staffs D,” “E, and “F” and was informed by the Administrator that those staff members ceased employment with the facility some time ago. That the above reflect Respondent’s failure to maintain an up-to-date employee roster on the Agency’s Background Screening Clearinghouse database as required by law. The Respendent’s actions or inactions constituted a violation of Sections 435.12, Florida Statutes (2019). Under Florida law, in addition te the requirements of part II of Chapter 408, the Agency may deny, reyoke, 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, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screcning 19. 20. 17. 18. under Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Florida Statutes (2019). Under Florida law, regardless of the class of violation cited, instead of the fine amounts listed in paragraphs (a)-(d), the agency shall impose an administrative fine of $500 if a facility is found not to be in compliance with the background screening requirements as provided in s. 408.809. § 429.19(2)(e), Florida Statutes (2019). Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class Il, 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: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Florida Statutes (2019). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of five hundred dollars ($500.00) for each violation for a total sum of two thousand dollars ($2,000.00) against the Respondent. COUNT I The Agency re-alleges and incorporates paragraphs (1) through (5) and Count I, as if fully set forth herein. That Florida law provides: (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 4 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 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: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proofis accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. Section 408.809(2), Florida Statutes (2019). 21. That Florida law provides: (2) Processing Screening Requests, Required Documents and Fees. (a) Providers subject to the screening standards outlined in Section 408.809, F.S., must follow the requirements specified in Section 435.12, F.S. Care Provider Background Screening Clearinghouse and must register and initiate all criminal history checks through the Care Provider Background Screening Clearinghouse before referring an employee or potential employee for electronic fingerprint submission to the Department of Law Enforcement. Providers can access the Care Provider Background Screening Clearinghouse at: http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screenin g/index.shtml. (b) Persons required to undergo Level 2 background screening must submit fingerprints electronically through a Livescan Service Provider(s) contracted through the Agency or approved through the Florida Department of Law Enforcement. Payment for screening services must be made to the Livescan Service Provider at the time of services or through a payment arrangement with the Livescan Service Provider. (c) If the individual’s fingerprints are rejected by the FBI due to illegible prints, the requesting provider will be notified through the Agency’s secure website. The individual must return to the same Livescan Service Provider and submit a second set of fingerprints in accordance with the guidelines established by the FBI. If the fingerprints are not resubmitted within 14 days, the individual will be notified by letter from the Agency. The second set of prints must be submitted within 21 days of the Agency’s request or the screening request will be considered withdrawn. If withdrawn, the individual must submit a new set of electronic fingerprints through a Livescan Service Provider accompanied by the required fee. (d) An Attestation of Compliance with Background Screening Requirements, AHCA Form 3100-0008, January 2017, herein incorporated by reference, available at http://www.flrules.org/Gateway/reference.asp?No=Ref-09106, and available from the Agency for Health Care Administration at: http://ahca.myflorida.com/MCHQ/Central_Services/Background_Screenin g/Regulations_Forms.shtml. This form must be completed by the individual and retained by the provider upon hire to attest that they meet the requirements for qualifying for employment, they have not been unemployed for more than 90 days from a position that requires Level 2 screening, and they agree to inform the employer immediately if arrested for any disqualifying offense. (e) An administrator or chief financial officer must be screened and qualified prior to appointment to the position. (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), F.S. 22. 23. 24, 25; 26. 27; 28. (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. Section 59A-35.090(2), Florida Administrative Code. That on or about August 5, 2019, the Agency conducted a re-licensure survey of Respondent and its facility. That based on record review and interviews, Respondent failed to ensure its staff completed the required Attestation of Compliance form for three (3) of three (3) sampled staff members, Staffs “A,” “B,” and “C,” and/or failed to maintain such forms in the employees’ personnel files. That on or about August 5, 2019, at approximately 1:00 PM, during a review of personnel records, Petitioner’s representative learned that Staff “A,” hired on November 7, 2007; Staff “B,” hired on June 23, 2019; and Staff “C,” hired on December 19, 2018, did not have Background Screening Attestation of Compliance forms (AHCA Form 3100) in their personnel files. That on or about August 5, 2019, at approximately 1:20 PM, during an interview with the Administrator, she acknowledged the findings and provided no additional documentation for review. That the aforementioned facts reflect Respondent’s failure to ensure its staff completed the required Attestation of Compliance form, and/or failed to maintain such forms the employees’ personnel files. The Respondent’s actions or inactions constituted a violation of Sections 435.12, Florida Statutes (2019). Under Florida law, in addition to the requirements of part II of Chapter 408, the Agency may 29. 30. 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, 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, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Florida Statutes (2019). Under Florida law, regardless of the class of violation cited, instead of the fine amounts listed in paragraphs (a)-(d), the agency shall impose an administrative fine of $500 if a facility is found not to be in compliance with the background screening requirements as provided in s. 408.809. § 429.19(2)(e), Florida Statutes (2019). 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: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Florida Statutes (2019). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of five hundred dollars ($500.00) for each violation for a total sum of one thousand five hundred dollars ($1,500.00) against the Respondent. Respectfully submitted this iit hay of December 2019. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION or Nieda ror Nicola L. C. Brown Assistant General Counsel Fla. Bar. No. 492507 Agency for Health Care Administration 525 Mirror Lake Drive N., 330H St. Petersburg, FL 33701 727.552.1946 (office) Nicola.Brown@ahca.myflorida.com NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served on December j%]_, 2019, to Shaddrick A. Haston, Esq., Attorney for Respondent, via electronic mail at shaston@ublawoffices.com. Nicola Brown, Esq. Copy furnished to: Arlene Mayo-Davis, RN Field Office Manager STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: TYVAL ASSISTED LIVING FACILITY, LLC Case No.: 2019018937 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. 10 PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed 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: 11

Docket for Case No: 20-000131