e @ CY DSF STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA NO: 2003001802 WESTMINSTER CARE OR ORLANDO, Respondent. / EE ADMINISTRATIVE COMPLAINT AUNIUNS Ne ee COMES NOW the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA’), by and through _ its undersigned counsel, and files this Administrative Complaint against WESTMINSTER CARE OF ORLANDO, [hereinafter “Respondent”] pursuant to Section 420.569, and 120.57, Florida Statutes (2002), and alleges: RASS NATURE OF THE ACTION 1. This is an action to assign a conditional license to WESTMINSTER CARE OF ORLANDO, pursuant to Section 400.23(7)(b), Florida Statutes (2002), and to assess costs related to the investigation and prosecution of this case pursuant to Section 400.121(10), Florida Statutes (2002). A copy of the conditional license is attached hereto as Exhibit “A” and incorporated herein by reference. JURISDICTION AND VENUE 2 eee 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2002). 3. AHCA has jurisdiction pursuant to Chapter 400, Part Il, Florida Statutes (2002). 4. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code (2002). PARTIES 5. AHCA is the regulatory agency responsible for licensure of nursing homes and enforcement of all applicable Florida laws and rules governing skilled nursing facilities pursuant to Chapter 400, Part Il, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 6. WESTMINSTER CARE OF ORLANDO is a Florida corporation with a principal address of 80 West Lucerne Circle, Orlando, Florida 32801. 7. WESTMINSTER CARE OF ORLANDO is a 420-bed skilled nursing facility located at 830 West 29" Street, Orlando, Florida 32805. WESTMINSTER CARE OF ORLANDO is licensed by AHCA as a skilled nursing facility having been issued license number — SNF1156096, certificate number 10084, with an effective date of February 5, 2003 and an expiration date of September 28, 2003. 8. WESTMINSTER CARE OF ORLANDO is and was at all times material hereto a licensed skilled nursing facility required to comply with Chapter 400, Part Il, Florida Statutes and Chapter 59A-4, Florida Administrative Code, respectively. COUNT! EFFECTIVE FEBRUARY 5, 2003, AHCA ASSIGNED A CONDITIONAL LICENSURE STATUS TO WESTMINSTER CARE OF ORLANDO BASED UPON THE DETERMINATION THAT WESTMINSTER CARE OF ORLANDO WAS NOT IN SUBSTANTIAL COMPLIANCE WITH APPLICABLE LAWS AND RULES DUE TO THE PRESENCE OF ONE (1) CLASS II DEFICIENCY A COMPLAINT SURVEY CONDUCTED ON FEBRUARY 5, 2003. § 400.23(7)(b) and (8)(a) and 400.022(1) Florida Statutes Rule 59A-4.1288; Rule 59-A4.123(1); Rule 59A-4.106(4)(aa), F.A.C. and Rule 59A-109(2), F.A.C., 42 CFR 483.13(c)(1)(i) and 483.25(a) — (m) 9. AHCA re-alleges and incorporates by reference paragraphs one (1) through eight (8) above as if fully set forth herein. 10. The regulatory provisions of the Florida Statutes, Code of Federal Regulations and Florida Administrative Code that are pertinent to these alleged violations read as follows: 400.23 Rules, evaluation and deficiencies; licensure status. — {7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home. (b) Acconditional licensure status means that a facility, due to the presence of one or more class 1 or class I! deficiencies, or class !I! deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class |, class i! or class Il! deficiencies at the time of the follow-up survey, a standard licensure status may be assigned. (8) The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shail be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of the deficiencies as follows: (b) A class II deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class | or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency. -——~-—— 400-022 Residents’ Rights: ~ - ~ . . - me (1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following: (17) Notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. 483.13 Resident behavior and facility practices. (c) Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. (1) The facility must-- (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. 483.25 Quality of care. Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, in accordance with the comprehensive assessment and plan of care. (a) Activities of daily living. Based on the comprehensive assessment of a resident, the facility must ensure that-- (1) A resident's abilities in activities of daily living do not diminish unless circumstances of the individual's clinical condition demonstrate that diminution was unavoidable. This includes the resident's ability to-- (i) Bathe, dress, and groom; ivy) (ii) Transfer and ambulate; (iii) Toilet; (iv) Eat; and (v) Use speech, language, or other functional communication systems. (2) A resident is given the appropriate treatment and services to maintain or improve his or her abilities specified in paragraph (a)(1) of this section; and (3) A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene. (b) Vision and hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the facility must, if necessary, assist the resident-- (1) In making appointments, and (2) By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices. (c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that-- (1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote . healing, prevent infection and prevent new sores from developing. (d) Urinary Incontinence. Based on the resident's comprehensive assessment, the facility must ensure that-- (1) A resident who enters the facility without an indwelling catheter is not catheterized unless the resident's clinical condition demonstrates that catheterization was necessary; and (2) A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible. (e) Range of motion. Based on the comprehensive assessment of a resident, the facility must ensure that-- (1) A resident who enters the facility without a limited range of motion does not experience reduction in range of motion unless the resident's clinical condition demonstrates that a reduction in range of motion is unavoidable; and (2) A resident with a limited range of motion receives appropriate treatment and services to —_-.___--— increase range-of-motion-and/orto-prevent further decrease in-range-of motion- - aa (f) Mental and Psychosocial functioning. Based on the comprehensive assessment of a resident, the facility must ensure that- (1) A resident who displays mental or psychosocial adjustment difficulty, receives appropriate treatment and services to correct the assessed problem, and (2) A resident whose assessment did not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction and/or increased withdrawn, angry, or depressive behaviors, unless the resident's clinical condition demonstrates that such a pattern was unavoidable. (g) Naso-gastric tubes. Based on the comprehensive asscssment of a resident, the facility must ensure that-- (1) A resident who has been able to eat enough alone or with assistance is not fed by naso-gastric tube unless the resident's clinical condition demonstrates that use of a naso-gastric tube was unavoidable; and (2) A resident who is fed by a naso-gastric or gastrostomy tube receives the appropriate treatment and services to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers and to restore, if possible, normal eating skills. (h) Accidents. The facility must ensure that-- (1) The resident environment remains as free of accident hazards as is possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents. (i) Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident (1) Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible; and (2) Receives a therapeutic diet when there is a nutritional problem. (j) Hydration. The facility must provide each resident with sufficient fluid intake to maintain proper hydration and health. (k) Special needs. The facility must ensure that residents receive proper treatment and care for the following special services: (1) Injections; (2) Parenteral and enteral fluids; (3) Colostomy, ureterostomy, or ileostomy care; (4) Tracheostomy care; (5) Tracheal suctioning; (6) Respiratory care; (7) Foot care; and (8) Prostheses. (I!) Unnecessary drugs-- (1) General. Each resident's drug regimen must be free from unnecessary drugs. An unnecessary drug is any drug when used: {i) In excessive dose (including duplicate drug therapy); or (ii) For excessive duration; or (iii) Without adequate monitoring; or (iv) Without adequate indications for its use; or (v) In the presence of adverse consequences which indicate the dose should be reduced or discontinued; or (vi) Any combinations of the reasons above. (2) Antipsychotic Drugs. Based on a comprehensive assessment of a resident, the facility must ensure that-- (i) Residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition as diagnosed and documented in the clinical record; and {ii) Residents who use antipsychotic drugs receive gradual dose reductions, and behavioral interventions, unless clinically contraindicated, in an effort to discontinue these drugs. (m) Medication Errors--The facility must ensure that-- (1) It is free of medication error rates of five percent or greater; and (2) Residents are free of any significant medication errors. 59A-4.1288 Exception. Nursing homes that participate in Title XVIH or XIX must follow certification rules and regulations found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is ~—incorporated by reference. —Non-certified facitities-must follow the-contents of this rule~and the standards contained in the Conditions of Participation found in 42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference with respect to social services, dental services, infection control, dietary and the therapies. . 59A-4.106(4)(aa) Facility Policies. (4) Each facility shail maintain policies and procedures in the following areas: (aa) Specialized rehabilitative and restoration services. CLASS II DEFICIENCY 11. On or about February 5, 2003, AHCA conducted a complaint survey at WESTMINSTER CARE OF ORLANDO. On or about February 5, 2003, based upon observation, interview and record review the AHCA survey team determined that the facility failed to provide care and services to promote healing of lesions and prevent infection, prevent pain, and monitor catheter output for one of three sampled residents [Resident #1]. On that basis, the AHCA survey team cited WESTMINSTER CARE OF ORLANDO with a Class i deficiency, supported by the following findings: Observation of Resident #1 on 2/05/03 at approximately 11:05 AM, identified the resident with a towel wrapped around the right hand. Interview at this time, with the staff nurse stated, "The resident scratches the wounds.” When the resident was turned to the right side to observe the resident's skin, the resident grimaced in pain. Interview with the resident's certified nursing assistant (CNA) at this time, spoke to the resident in Spanish to inquire if the resident was in pain to which the resident stated "yes." Observation of the resident's lower abdomen area, buttocks and down to the upper thighs, identified opened lesions that were inflamed, bleeding, and weeping fluid. Under the resident's buttocks was a washcloth that was tinged with blood. Interview with the staff nurse, at this time stated: "| didn't know it looked like this, the treatment is done by the evening nurse.” Observation of the resident's supra pubic catheter noted no urine in the catheter bag. Interview with the resident's CNA at this time stated: "I emptied the foley at 9:15 AM." Observation at 11:35 AM, identified no urine in the catheter bag. Interview with the staff nurse at this time stated: "maybe the resident was lying on it”. The nurse indicated if there is a problem they would irrigate the catheter. Review of the physician's orders identified no order for catheter irrigations for Resident #1. Further review of the physician orders, noted an order written on 1/20/03 for "Xenaderm ointment to open areas re-apply daily and as needed x 4 weeks." Review of the resident's treatment administration record (TAR) identified the treatment was done every evening at 7:00 PM, with no documentation that the ointment was applied as needed. Observation of the tube of Xenaderm ointment identified the tube was empty and had no label. Interview with a staff nurse on 2/05/03 at approximately 11:45 AM, stated: “I don't do the treatment, so | wouldn't know it was empty.” Further interview on where the cream came from, the nurse stated: "I don't know | guess the pharmacy.” interview with the pharmacist on 2/05/03 at approximately 1-00 PM, stated: “I just” received the order today (2/05/03) for the Xenaderm, there was no order prior to this time.” Interview with the wound care nurse on 2/05/03 at approximately 10:00 AM, prior to tour, on wounds that were identified to be in-house acquired stated: "I take care of the wounds in the facility, the resident had a wound to the left outer ankle that is resolved. The resident has Pemphigus which | do not treat, the nurses take care of the treatment.” Observation again of Resident #1 with the wound care nurse and administrative staff on 2/05/03 at approximately 1:10 PM, the wound care nurse stated: "Oh my, 1 wasn't told it looked like this, 1 will start taking care of this treatment.” Interview with administrative staff regarding the treatment stated: “the order was faxed to the pharmacy on 4/20/03, | don't know why it wasn't filled. We had a tube here probably from another resident we were using.” A short time later, a nurse from another Unit found another tube of Xenaderm that was unlabeled. Interview with this nurse at this time stated: "I found the tube on another unit, | don't know who it belongs to.” "we received the order on 1/20/03 but the facility Interview again with the pharmacy stated: s why it wasn't sent out." The tube of indicated they had some and | would guess that’ Xenaderm ointment that was observed was empty. Observation of the resident on 2/05/03 at approximately 1:15 PM, identified the catheter was changed/irrigated and 10 cc. of urine was obtained. Clinical record review for Resident #1 revealed a report from the Wound Healing Centers dated 1/20/03 indicating: "Dressing orders: Xenaderm to open areas. Re-apply daily and as needed.” Review of the resident's care plan dated 1/07/03 identified the resident's problem as “Potential for pain.” Goals included: "pain will be relieved to a level that resident personally desired/tolerate."_ Interventions included: "Pain management as ordered.” Further clinical record review identified no pain management in place. Interview with a staff nurse on 2/05/03 at approximately 1:30 PM, stated: "I medicate the resident for pain with Tylenol.” Review of the resident's medication administration record (MAR) identified for the months of January and February, the resident was not medicated for pain. Confidential interview on 2/04/03 at approximately 8:00 PM, stated: "The resident is in pain every time I'm in there. The last two weeks they didn't have the cream the doctor ordered to put on the wounds. They're getting worse, bleeding all the time. They were using Vaseline, not the antibiotic that was ordered. The urine is always dark in the catheter bag and it has things floating in it." Another confidential interview on 2/05/03 at approximately 1:45 PM. stated: "the urine is usually dark and it looks like sand is in the bag.” 12. Based upon the foregoing, the Respondent violated Florida Administrative Code Rule 59A-4.1288, which required the Respondent to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property, including physical abuse. That rule incorporates by reference 42 CFR § 483.13 (c)(1)(}). 13. The foregoing also constitutes a violation of § 400.022, Fla. Stat., which requires the Respondent to ensure the residents’ right to receive adequate and appropriate health care and protective and support services. 14, The foregoing also constitutes an intentional or negligent act materially affecting the health or safety of residents of the facility as defined by § 400.102 (1)(a), Fla. Stat. and is subject to a fine under § 400.121 Fla. Stat. 45. The foregoing constitutes a Class II deficiency as defined by § 400.23(8)(b) Fla. Stat. as follows: A class Il deficiency is a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class t or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine shall be levied notwithstanding the correction of the deficiency. 16. The above referenced violation constitutes the grounds for the imposed Class tl deficiency and for which the imposition of a conditional license is authorized pursuant to § 400.102(1)(d), and 400.23(7)(b) Fla. Stat. CLAIM FOR RELIEF WHEREFORE, AHCA requests this Court to order the following relief: A. Make factual and legal findings in favor of AHCA on Count I, B. Uphold the issuance of the conditional license attached hereto as Exhibit “A”. DISPLAY OF LICENSE Pursuant to §§ 400.062(5) and 400.23(7)(e), Fla. Stat., Respondent shall post its current license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility. NOTICE The Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Specific options for administrative action are set out in the attached Explanation of Rights (one page) and Election of Rights (one page). All requests for hearing shall be made to the attention of AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, MAIL STOP #3, TALLAHASSEE, FL 32308. WESTMINSTER CARE OF ORLANDO IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. SA Respectfully submitted this Fé —__ day of May 2003. Respectfully submitted, DONNA RISELLI Fla. Bar. No. 325821 Counsel for Petitioner Agency for Health Care Administration Building 3, Mail Stop #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 921-5873 (office) (850) 921-9313 (fax) EXHIBIT LIST Exhibit “A” CONDITIONAL LICENSE License #SNF13047 1008; Certificate #9091 Effective Date: 07/25/2002 Expiration Date: 11/11/2002 10

Docket for Case No: 03-003598