STATE OF FLORIDA FILED HAY 22 03 AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No.: 2002010721 CASE No.: 8-01-0024NH DOAH No.: 01-1651 FOUNTAINS SENIOR PROPERTIES OF Fip> Clos FLORIDA, INC., d/b/a Springs at Lake Pointe Woods, - Respondent FINAL ORDER Having reviewed the Notice of Change to Conditional Licensure Status dated December 14, 2000, (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) finds and concludes as follows: FINDINGS OF FACT 1. The Agency issued a Notice of Change to Conditional Licensure Status dated December 14, 2000 stating a conditional license had been imposed effective November 21, 2000, against the Petitioner, Fountains Senior Properties of Florida, Inc. d/b/a Springs at Lake Pointe Woods, a nursing home facility for a violation of Chapter Page 1 of 4 400, Part II, Florida Statutes, and Chapter 59A-4 Florida Administrative Code. 2. The Petitioner was served with the Notice of Change to Conditional Licensure Status by U.S. Certified Mail. The Petitioner was advised of its right to request an administrative hearing. The Petitioner filed a petition (Ex. 2), denying the allegations of fact contained in the Notice of Change to Conditiona! Licensure Status and requesting to be afforded a formal proceeding, pursuant to 120.57(2), Florida Statutes. 3. On September 14, 2001, Petitioner filed its Notice of Voluntary Withdrawal (Ex. 3). There was no executed settlement agreement. 4. On September 25, 2001, Administrative Law Judge Buckine entered the Order Closing File (Ex. 4). 5. The Agency hereby adopts and incorporates by reference the attached Notice of Voluntary Withdrawal and Order Closing File. 6. There are no remaining disputed issues of fact or law. 7. The facts as alleged and found, establish that: In the survey completed on November 21, 2002, a Class III deficiency was re-cited due to the facility's failure to provide sufficient nursing staff to assist residents with meals and personal care needs. This is a violation of Rule 59A-4-1288 Fl. Admin. Code and is the basis of a conditional license pursuant to Section 400.23(7)(b), Florida Statutes. Page 2 of 4 CONCLUSIONS OF LAW 1. The Agency has jurisdiction over Respondent pursuant to the provisions of Chapter 400, Part II, and Sec. 120.569, Florida Statutes. Based on the foregoing, IT IS ADJUDGED THAT: The above-styled case is DISMISSED and the imposition of the conditional license effective November 21, 2000 is upheld. DONE and ORDERED this LE day of 2X hig , 2003, in Tallahassee, Florida. Kees. his cet Hi M. Med ear fe Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH AGENCY CLERK AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, IN THE DISTRICT COURT OF APPEAL WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Page 3 of 4 Shannon B. Hartsfield, Esq. Holland & Knight LLP Attorney for Springs at Lake Pointe Woods 315 S. Calhoun Street, Suite 600 P.O. Drawer 810 Tallahassee, FL 32301 Elizabeth Dudek The Honorable Fred L. Buckine Deputy Secretary Division of Administrative Hearings Agency for Health Care The De Soto Building Administration 1230 Apalachee Parkway 2727 Mahan Drive MS 9 Tallahassee, FL 32399-3060 Tallahassee, FL 32308 (Interoffice Mail) Joanna Daniels, Esq. Wendy Adams Assistant General Counsel Facilities Intake Unit Agency for Health Care Agency for Health Care Administration Administration 2727 Mahan Drive MS 3 2727 Mahan Drive MS 3 Tallahassee, FL 32308 Tallahassee, FL 32308 (Interoffice Mail) (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was mailed to the above-named addressees on this GQ day of _ Meat 2003. CGhaglene iPr Teg bps € Lealand McCharen, Agency Cl Agency for Health Care Administration 2727 Mahan Drive, Building #3 — _...._Tallahassee,Florida -32303- Re Page 4 of 4 - Sarasota, Florida 34238 MC & HQ/HEADQUARTERS Fax:850-437-6240 - Per 12 200 15:4e P05 _ STATE OF FLORIDA ~ AHICA AGENCY FOR HEALTH CARE ADMINISTRATION CARE ADMINISTRATION : : OA 54 JE8 BUSH, GOVERNOR . RUBEN J. KING-SHAW. JR, SE ae si o a Oo December 14, 2000 EXHIBIT CERTIFIED MAIL . RETURN RECEIPT REQUESTED Administrator | #7099-3400-0013-8446-3832. Springs at Lake Point Woogl# _o =" 7848 Beneva Road Vip : Ol - eS LE: CHANGE OF LICENSE TO CONDITIONAL STATUS Dear Administrator: This conditional license is effective 11/21/00 and is issued Conditional as a result of the survey completed on 11/21/00. During this survey a Class III deficiency was re-cited due to-the facility not providing sufficient nursing staff to assist residents with meals and personal care needs. This Jicense reflects your current license status and must be displayed in a conspicuous place in your facility pursuant to section 400.062(5), F.S. . Pursuant to section 120.57, F.S., you have a right to request an administrative hearing, to be represented by counsel (at your expense), to take testimony, to call or cross-examine witnesses, to have subpoena and subpoena duces tecum issued and to present written evidence or argument ’ in your behalf. Chapter 28, Part V, Florida Administrative Code (F.A.C.), constitutes the Agency’s procedural rules for administrative proceedings resulting from this action. In order to obtain a formal proceeding under section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Chapter 28-5.201, F.A.C., and must state which issues of material fact you dispute. Failure to dispute issues of material fact in your request for a hearing may be treated by the Agency as an election by you for an informal Proceeding under section 120. 57@), BS. . All requests for hearings shall be filed with the Agency within twenty-one (21) days of receipt of this letter. The petition should be sent to: Agency for Health Care Administration Mr. Michael Sasso, Esq., Senior Attorney 6800 N. Dale Mabry Hwy., Suite 220 Tampa, Florida 33702 In accordance with the Americans with Disabilities Act, persons needing special accommodation to participate in this proceeding should contact Mr. Sasso no later than seven (7) days prior to the he proceeding or hearing at which such special accommodation i is required. If needed, Mr. Vistt AHCA Online at 2727 Mahan Drive + Mail Stop #33 www fdhe state flus Tallahassee, FL 323 tp ree MC & HQ/HEADQUARTERS Fax :850-487-6240 =~ “ December 14, 2000 Page2 — Sasso may be contacted at (813) 871-7427. Sincerely, . th. Kathy Munn Health Services & Facilities Consultant Long Term Care Health Facility Regulation cc: AHCA Area Office 8 Mr. Mike Sasso, Area Office 6 File Agr 12 2001 “™ 1s:4¢ p08 vee were oe Or * ap STATE OF FLORIDA | . AGENCY FOR HEALTH CARE apaannstaisig FOUNTAINS SENIOR PROPERTIES OF Cay ; FLORIDA, INC. d/b/a The Springs at oy” 1 Lake Pointe Woods, NAR 22 RED Petitioner, Agency for Health Care Administration vs. CASE NO.O1=|LeS[_ AGENCY FOR HEALTH CARE EXHIBIT ADMINISTRATION, - Respondent. PETITION FOR FORMAL ADMINISTRATIVE HEARING Petitioner, Fountains Senior Properties of Florida, Inc., d/b/a The Springs at Lake Pointe Woods, by and through undersigned counsel, and pursuant to Sections 120.569 and 120.57, Florida Statutes, and Rule 28-106.201, Florida Administrative Code, files this Petition for Formal Administrative Hearing to contest a determination by the Agency for Health Care Administration (AHCA) that y Petitioner violated certain state licensure requirements. In support of this Petition, the Facility states: Parties 1. The Petitioner is Fountains Senior Properties of Florida, Inc. d/b/a The Springs at Lake Pointe Woods (the “Facility”. The Facility i isa Florida corporation. For Purposes of this proceeding, the address of Petitioner is that of the undersigned wares eee oe counsel. The Facility’s license number is SNF 1468096. The current certificate number for the Facility’s license is 6608. 2. The Respondent is the Florida Agency for Health Care Administration (‘AHCA’), 2727 Mahan Drive, Tallahassee, Florida 32308. Statement of When and How Petitioner Received Notice 8. The Facility received notice of AHCA’s agency action relating to particular regulatory requirements on or about March 16, 2001, by letter, dated March 5, 2001, from Susan S.B. Acker, RN, Ph.D., the Nursing Services Director of AHCA. A copy of this letter is attached as Exhibit “A.” Background . 4. AHCA is the Florida governmental agency charged with licensure and regulation of nursing homes. 5. Fountains Senior Properties of Florida, Inc. has operated the Facility since July 1, 1997, pursuant to the pertinent AHCA license. 6. On or about October 23, 2000, the Facility underwent a survey by AHCA employees assigned to AHCA’s Area 8 office in Ft. Myers, Florida to determine the Facility’s compliance with various state and federal nursing home statutes and regulations. AHCA also conducted “follow up” or “re-visit” surveys on November 21; 2000, and J anuary 24, 2001 (hereinafter “January survey”). 7. During the January survey, AHCA surveyors prepared a report setting forth their findings. A copy of this Facility’s Statement of Deficiencies and Plan of Correction Form (HCFA 2567L), providing details regarding these alleged deficiencies, is attached as Exhibit “B.” 8. The HCFA 2567L form lists the following alleged observations regarding a nurse referred to herein as “Nurse A”: During an observation of the medication pass on 1/24/01 at approximately 9:10 A.M., the nurse administered one drop of Pilocar 1% into RS Resident #18’s right eye. Observation of the label revealed that one drop of Pilocar 1% is to be administered into the Resident’s left eye. Review of the physician’s order dated 2/28/00, confirmed that the eye drop is to be administered into the Resident’s left eye. 9. The HCFA 2567L form lists alleged observations regarding a nurse referred to herein as “Nurse B.” This nurse was allegedly observed improperly mixing an iron supplement. No improperly mixed supplement was administered to the resident. 10. Asa result of the January survey, AHCA surveyors determine that 18 of 19 previously-cited deficiencies had been corrected. The surveyors alleged, however, that one deficiency, related to pharmaceutical services and identified by the “ID Prefix Tag” of F426, had not been corrected. Additionally, the surveyors ‘ alleged thata second deficiency, Tag F332, existed. With respect to this deficiency, the surveyors concluded that the Facility hada medication error rate of five percent Peis tanec or greater. “Both of these ‘deficiencies w were ‘Gesignated : as 3 “Class Ill” deficiencies. 11. On March 2, 2001, AHCA held an informal dispute resolution at the F acility’ 8 yequest regarding the ‘deficiencies cited-during the January-survey—As-a— _ - ae cme im oe result of this proceeding, AHCA removed the F426 deficiency based on its finding that “[t]his was not a pharmaceutical services error.” Exhibit “A” contains AHCA’s findings as a result of the informal dispute resolution proceedings. AHCA elected to uphold the F332 deficiency. 12. The Facility has been subject to various penalties as a result of ) | deficiencies cited in the various surveys listed above, including denial of Medicaid | payment for new resident admissions. | Statement of Ultimate Facts that Warrant Reversal 13. At the time of the January survey, the Facility was in compliance with all applicable licensure requirements. 14, There is substantial evidence to suggest that Nurse A intentionally sabotaged the Facility’s survey. Just prior to the January survey, Nurse A had tendered her resignation in order to go work for a competing facility. January 24, 2001, the day of the survey, was to be her last day at the Facility. 15. Onthe morning of January 24, 2001, Nurse A told several facility employees that she had contemplated sabotaging the survey, and also expressed concerns about losing her license if she did that. “16. Nurse A had performed medication ‘passes many times prior to J anuary 24 without incident, In fact, "Nurse A actually conducted an inservice at the Facility on December 6, 2000, to train other employees regarding reading labels prior to the administration of medication. Additionally, Nurse A attended an inservice on medication administration ¢ on n December 12, 2000, and received satisfactory marks during a documented observation of her medication pass skills on November 16, 2000. 17. Nurse A’s actions necessitated an extended survey of the Facility’s medication pass procedures. Nurse B allegedly committed her error during the extended portion of the survey. 18. After the survey, the facility provided inservice training to both nurses. Nurse A, however, was acting in an extremely unprofessivaal manner. She was. - emotionally distraught, argumentative, and interrupted her training to make personal phone calls. The Facility sent her home immediately after this. Because Nurse A had already resigned from the Facility and January 24 was to be her last day, she did not return to work at the Facility. 19. Nurse A’s actions do not constitute a medication “error” because her failure to properly administer the medication was intentional. When it discovered that Nurse A had made statements to fellow employees about sabotaging the survey, the Facility reported Nurse A’s actions to the Board of Nursing, AHCA, and the Abuse Hotline. ; ‘20. . "Assuming Nurse B actually. committed a , medication error during the J anuary survey, ‘her single error does not support a finding that the Facility had a me f five percent 0 or ‘greater. “iPherefore, Tag F332 should not have been cited, and the Facility should have been found is in 2 compliance with all applicable licensure requirements. Ie 21. Two complaint surveys conducted after the January survey, on February 20 and March 5, 2001 (attached as Exhibits “@” and “D”), have resulted in findings that the Facility is in compliance with state and federal requirements for skilled nursing facilities. Petitioner’s Substantial Interests 22. Petitioner is and has been substantially affected by AHCA’s decision to uphold the Class III deficiency designated by Tag F332. A violation of provisions of Chapter 400, Florida Statutes, or related rules, “shall be grounds for action by the agency against a licensee.” §400.102, Fla. Stat. (2000). 23. Upon information and belief, AHCA’s refusal to withdraw the F332 deficiency has resulted in continued imposition of penalties, including denial of Medicaid payment for new resident admissions. 24. Ifthis Class III deficiency is allowed to stand, it may delay or prevent the issuance of a standard license to the facility. See §400.23(7)(a), Fla. Stat. (2000). ‘If the deficiency 3 is found to be uncorrected on a subsequent survey, the Facility. could be subject to o civil fines and other penalties. Furthermore, this deficiency relates to quality of care, and the Facility is subject to © unjustified harm to its reputation and good name if allowed to stand. “Applica e Statutes, Rules, and Policies that Require Reversal 25. The Facility was in compliance with applicable laws and rules during the Ji anuary survey. Two subsequent surveys have confirmed that the Facility is in Focerrreren- mtr ETE compliance. Deficiencies stemming from the seemingly intentional and unprofessional acts of Nurse A should not be a basis for penalizing the Facility. The actions of Nurse B, standing alone, would not support a finding that the facility had a medication error rate of five percent or greater. 26. Section 120.569, Florida Statutes, requires that an entity whose substantial interests are affected be afforded a notice of availability of an administrative hearing to challenge an agency decision. The entity must also be given information regarding the procedure to be followed to obtain a hearing, including the applicable time limits. See §120.569(1), Fla. Stat. (2000); see also Fla. Admin. Code Ann. R. 28-106.111. To date, although the Facility has been given the opportunity to participate in an informal dispute resolution process, the Facility has received no point of entry to challenge the underlying deficiencies. 27. Florida Administrative Code Rule 59A-4.1200 requires nursing homes participating in Medicare and Medicaid to comply with rules and regulations found in 42 C.F.R. 483. Section 483.25 of the Code of Federal Regulations, incorporated by reference into Rule 59A-4.1200, requires skilled nursing facilities to be “free of - medication error rates of five percent or greater.” One medication pass error out of 40, coupled with an intentional administration of medication incorrectly, does not constitute an error rate of five percent or greater. Statement of Disputed Issues of Material Fact 28. The disputed issues of material fact of which the Petitioner is aware at ~ —this time include, but-are not limitedto:—-- --— — wen were 29. Ge Whether, on January 24, 2001, the Facility had a medication error rate of five percent or greater; Whether, on January 24, 2001, the Facility was in compliance with applicable state licensure requirements; Whether Nurse A intentionally sabotaged the survey that took place at the Facility on January 24, 2001; Whether AHCA has grounds to continue to impose, or -..- recommend the imposition of, penalties against the Facility, including, but not limited to, denial of payment for new Medicaid admissions; and Whether AHCA’s decision to uphold the deficiency designated by Tag F332 was proper. Relief Requested Petitioner requests that AHCA: a. forward this Petition to the Division of Administrative Hearings for assignment to an Administrative Law Judge to preside over . ‘a formal administrative hearing on the issues set forth above; enter a final order requiring AHCA to resume payment for new ia: Medicaid residents admitted to the Facility, and lift or recommend the lifting of any other applicable penalties; and ener C. enter a final order determining that the Facility was in compliance with all applicable licensure requirements on January 24, 2001. ou. ; 7 Respectfully submitted this ‘ 2° day of March, 2001. HOLLAND & KNIGHT LLP Jerome W. Hoffman, Esq. Florida Bar No. 0258830 Shannon B. Hartsfield Florida Bar No. 055130 Post Office Drawer 810 Tallahassee, Florida 32302 (850)224-7000 Attorneys for Petitioner CERTIFICATE OF SERVICE I HEREBY CPRUFY that the original of the foregoing has been furnished by hand delivery this Us day of March, 2001, to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Room 3431, Tallahassee, Florida, 32308, with a duplicate delivered Via overnight mail to Michael Sasso, Esq., Senior Attorney, Agency for Health Care Administration, 6800 N. Dale Mabry Hwy, Suite 220, Tampa, Florida 33702. Por . seetan - wee ae . see il = Shannon B. Hartsfield ee vere ae STATE OF FLORIDA oF 9 DIVISION OF ADMINISTRATIVE HEARINGS FOUNTAINS SENIOR PROPERTIES OF FLORIDA, INC., d/b/a SPRINGS AT LAKE POINTE WOODS, Petitioner, vs. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. NOTICE OF VOLUNTARY WITHDRAWAL Petitioner, Fountains Senior Properties of Florida, Inc., abla Springs at Lake Pointe Woods, hereby voluntarily withdraws its Petition for Formal Administrative 7 Hearing filed on 1 March 21, 2001. . Respectfully submitted this 14th day of September, 2001. HOLLAND & KNIGHT LLP Hasan B. Hartsfield ; ween" Florida Bar No. 055130. Mount vs west ons Post Office Drawer 810° wegen 0°. «+: Tallahassee, Florida 32302 ; (850)224-7000 Attorneys or Petitioner es CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail this 14th day of September, 2001, to Pury Lopez Santiago, Esgq., Assistant General Counsel, Agency for Health Care Administration, 8355 NW 53rd Street, Miami, Florida 33166. Shannon B. Hartsfield TAL] #240586 v1

Docket for Case No: 01-001651