STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA No. 2020009707 License No. 12705 TENDER CARE INC.@WESTFORD DRIVE d/b/a File No. 11968856 TENDER CARE INC. AT WESTFORD DRIVE, Provider Type: Assisted Living Facility Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through the undersigned counsel, and files this Administrative Complaint against the Respondent, Tender Care Inc.@Westford Drive d/b/a Tender Care Inc. at Westford Drive (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes, and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine of five thousand dollars ($5,000.00) based upon one (1) class II violation. JURISDICTION AND VENUE 1, The Agency has jurisdiction pursuant to §§ 20.42, 120.60, and Chapters 408, Part Il, and 429, Part I, Florida Statutes (2019). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. 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 Il, and 429, Part I, Florida Statutes, and Chapter 59A-36, Florida Administrative Code, respectively. 4. Respondent operates a four (4) bed assisted living facility located at 3410 Westford Drive, Apopka, Florida 32712, and is licensed as an assisted living facility, license number 12705. Si 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 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. 7. That on April 29, 2020 the Agency completed an Assisted Living Facility (ALF) survey of Respondent and its facility 8. That Florida law provides: (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (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 infringement upon the rights of other residents. (d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (e) Freedom to participate in and benefit from community services and activities and to pursue the highest possible level of independence, autonomy, and interaction within the community. (f) Manage his or her financial affairs unless the resident or, if applicable, the resident’s representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in s. 429.27. (g) Share a room with his or her spouse if both are residents of the facility. (h) Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather. (i) Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident. G) Assistance with obtaining access to adequate and appropriate health care, For purposes of this paragraph, the term “adequate and appropriate health care” means the management of medications, assistance in making appointments for health care services, the provision of or arrangement of transportation to health care appointments, and the performance of health care services in accordance with s. 429.255 which are consistent with established and recognized standards within the community. (k) At least 45 days’ notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days’ notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. (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. (2) The administrator of a facility shall ensure that a written notice of the rights, obligations, and prohibitions set forth in this part is posted in a prominent place in each facility and read or explained to residents who cannot read. The notice must include the statewide toll-free telephone number and e-mail address of the State Long-Term Care Ombudsman Program and the telephone number of the local ombudsman council, the Elder Abuse Hotline operated by the Department of Children and Families, and, if applicable, Disability Rights Florida, where complaints may be lodged. The notice must state that a complaint made to the Office of State Long-Term Care Ombudsman or a local long-term care ombudsman council, the names and identities of the residents involved in the complaint, and the identity of complainants are kept confidential pursuant to s. 400.0077 and that retaliatory action cannot be taken against a resident for presenting grievances or for exercising any other resident right. The facility must ensure a resident’s access to a telephone to call the State Long-Term Care Ombudsman Program or local ombudsman council, the Elder Abuse Hotline operated by the Department of Children and Families, and Disability Rights Florida. § 429.28(1) and (2), Florida Statutes (2019). That Florida law provides: 59A-36.007 Resident Care Standards. An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. kk OK (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 S9A-36.006, 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 a written procedure to allow 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. (c) The telephone number for lodging complaints against a facility or facility staff must be posted in full view in a common area accessible to all residents. The telephone numbers are: the Long-Term Care Ombudsman Program, 1(888)831- 0404; Disability Rights Florida, 1(800)342-0823; the Agency Consumer Hotline 1(888)419-3456, and the statewide toll-free telephone number of the Florida Abuse Hotline, 1(800)96-ABUSE or 1(800)962-2873. The telephone numbers must be posted in close proximity to a telephone accessible by residents and the text must be a minimum of 14-point font. (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 59A- 36.006, F.A.C. The rules and procedures must at a minimum address the facility’s policies regarding: 1, Resident responsibilities; 2. Alcohol and tobacco use; 3. Medication storage; 4. Resident elopement; 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. (e) Residents may not be required to perform any work in the facility without compensation. Residents may be required to clean their own sleeping areas or apartments if the facility rules or the facility contract includes such a requirement. If a resident is employed by the facility, the resident must be compensated in compliance with state and federal wage laws. (f) The facility must provide residents with convenient access to a telephone to facilitate the resident’s right to unrestricted and private communication, pursuant to section 429.28(1)(d), F.S. The facility must allow unidentified telephone calls to residents. For facilities with a licensed capacity of 17 or more residents in which residents do not have private telephones, there must be, at a minimum, a readily accessible telephone on each floor of each building where residents reside. (g) In addition to the requirements of section 429.41(1)(k), F.S., the use of physical restraints by a facility on a resident must be reviewed by the resident’s physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint. Rule 59A-36.007(1) and Rule 59A-36.007(6), Florida Administrative Code. 10. That based upon review of records, observation and interview, Respondent failed to ensure a safe and decent living environment free form abuse and neglect for residents and failure to provide care and services appropriate for resident needs in Respondent’s failure to implement and maintain adequate infection control procedures including current infection control standards related to COVID-19 and Florida Governor's emergency orders DEM Order 20-006, dated March 15, 2020 placing residents at increased risk for infection, the same being contrary to the requirements of law. 11.‘ That the COVID-19 virus is a transmissible respiratory infection that presents severe risk to persons who are aged, infirm, or suffer from co-morbidities including, but not limited to, immune system deficiency, respiratory disease, diabetes, and obesity. See generally, Publications of the Centers for Disease Control. 12. That on March 1, 2020, the Governor of the State of Florida issued Executive Order 20- 51 designating a Public Health Emergency as a result of COVID-19 and its impact. Pursuant to that authority, emergency orders have been issued by the Florida Division of Emergency Management to implement the protections necessary to assure the health, safety, and well-being of Florida's citizenry, including those most vulnerable to the effects of infection. Among those emergency orders was DEM Order 20-006, dated March 15, 2020, delineating minimum screening standards for persons entering identified residential facilities. 13. That the "State of Florida Division of Emergency Management Emergency Order," dated March 15, 2020, reads: a. Cc. "Whereas, the Governor of the State of Florida issues Executive Order No. 20-52 in response to the COVID-19 Public Health Emergency, which poses a severe threat to the entire State of Florida and requires that timely precautions are taken to protect the communities, critical infrastructure, and general welfare of this State ..., “2, Individuals seeking entry to the facility under the above section 1 will not be allowed to enter if they meet any of the screen criteria listed below... b. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including fever, shortness of breath or sore throat... “5. The following documentation must be kept for visitation within a facility: (1) a. Individuals entering a facility subject to the screening criteria above may be screened using a standard questionnaire or other form of documentation. (2) b. The facility is required to maintain documentation of all non-resident individuals entering the facility. Documentation must include: (a) 1. Name of the individual; (b) 2. Date and time of entry; and (c) 3. The documentation used by the facility to screen the individual showing the individual did not meet any of the enumerated screening criteria, including the screening employee's printed name and signature..." 14. That the Agency for Health Care Administration (AHCA) has issued guidance and clarification on DEM Order 20-006 to providers, and on March 18, 2020, issued an alert notifying all staff and other individuals in a residential facility must don face masks and that caregivers must wear gloves when providing resident care. 15. That while the treatment and management of residents with infectious disease and the implementation of isolation precautions for such events are long-standing health care issues faced by residential facilities, the ease of contagion and the effects of infection presented by COVID-19 mandate that providers exert meticulous practice and procedure to identify resident symptoms and take immediate prophylactic procedures to both assure appropriate treatment of a potentially infected resident and protect the remainder of a facility's population from the risk of spread of the infection. 16. That Petitioner’s representative entered and toured Respondent’s facility with a representative of Florida’s Department of Health on April 29, 2020 commencing at 9:10 a.m. and noted as follows: a. Respondent’s care giver staff member “A” opened the facility's front door and allowed the surveyor and department of health representative entry into the facility's dining room. b. Staff member “A” wore a mask. c. One (1) resident ambulated independently without a mask, walked right up to and stood next to the surveyor and department of health representative, not maintaining social distancing of at least six (6) feet. d. Staff member “A” had to redirect the resident to go and sit down in the living room. e. Staff member “A” did not conduct any additional COVID-19 screening, such as using a questionnaire or other form of documentation. f. Staff member “A” then produced an oral thermometer with thin plastic probe covers. g. Staff member “A” made no attempt to clean and disinfect the probe (piece placed in the mouth to obtain the temperature reading) with a germicidal wipe, so a screening temperature was not conducted. h. When questioned, staff member “A” stated that she did not have any type of questionnaire form, and she did not have any documentation of resident, staff or visitor temperatures. 17. That Petitioner’s representative telephonically interviewed Respondent’s shareholder on April 29, 2020 at 9:20 a.m. who indicated: a. The facility is licensed for four (4) residents and there were currently three (3) residents residing at the facility. b. The assisted living facility did not have any gowns or face shields, and they only a one (1) day supply of facemasks for staff use. c. She had called the Emergency Operations Center, but the Emergency Operations Center would not give her any personnal protective equipment. d. She did not contact the Department of Health for assistance in obtaining personal protective equipment. e. Resident temperatures were being taken once a day but were not recorded. f. "I only have two (2) staff, and the two (2) owners are the only ones who enter the facility, so no screening forms or documentation of temperatures were being completed." 18. That the above reflects Respondent’s failure to provide a safe and decent living environment free form abuse and neglect for residents and failure to provide care and services appropriate for resident needs including the failure to implement and maintain infection control mechanisms to protect from a known threat. 19. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class J violations. 20. That the same constitutes a Class II offense as defined in Florida Statute § 408.813(2)(b), Fla. Stat. (2019). WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(b), Florida Statutes (2019). _ Respectfully submitted this 29 day of June 2020. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Florida 33701 Telephone: (727) 552-1947 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 by U.S. Certified Mail, Return Receipt No. 7019 2970 0001 3240 6276 on June 24, 2020, to Dotlyn Coleman, Administrator and Registered Agent for Tender Care Inc.@Westford Drive d/b/a Tender Care Inc. at Westford Drive, 3410 Westford Drivey Apopka, Florida 32712. T. J. Walsh II Copy furnished to: Theresa DeCanio Field Office Manager Agency for Health Care Administration 10 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: AHCA v. Tender Care Inc.@Westford Drive d/b/a Tender Care Inc. at Westford Drive AHCA No. 2020009707 ELECTION OF RIGHTS This Election of Rights form is attached to an Administrative Complaint. The Election of Rights form 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 received the Administrative Complaint. If your Election of Rights form with your selected option (or request for hearing) is not timely received by the Agency Clerk, the right to an administrative hearing to contest the proposed agency action will be waived and an adverse Final Order will be issued. In addition, please send a copy of this form to the attorney of record who issued the Administrative Complaint. (Please use this form unless you, your attorney or your qualified representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 28, Florida Administrative Code.) The address for the Agency Clerk is: Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3, Mail Stop #7 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 I 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 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: USPS Tracking: Tracking FAQs_ Track Another Package + Track Packages Anytime, Anywhere Get the free Informed Delivery® feature to receive automated notifications on your packages Learn More Remove Tracking Number: 70192970000132406276 Your package is moving within the USPS network and is on track to be delivered to its final destination. It is currently in transit to the next facility. Status In-Transit June 30, 2020 In Transit to Next Facility Get Updates In-Transit

Docket for Case No: 20-004032