STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AHCA No: 2003007013 2003007015 Petitioner, Return Receipt Requested 7002 2410 0001 4236 9410 vs. 7002 2410 0001 4236 9427 STUART OPERATING CORP., d/b/a 2 _u (BD STUART NURSING & RESTORATIVE CARE OS CENTER, Respondent / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”’), by and through the undersigned counsel, and files this Administrative Complaint against Stuart Operating Corp., d/b/a Stuart Nursing & Restorative Care Center (hereinafter “Stuart Nursing & Restorative Care Center”) pursuant to 28-106.111, Florida Administrative Code (2001) (F.A.C.), and Chapter 120, Florida Statutes (Fla. Stat.”) hereinafter alleges: NATURE OF ACTION 1. This is an action to impose an administrative fine in the amount of ten thousand ($10,000) dollars pursuant to Section 400.23 Fla. Stat., and a Survey fee of six thousand ($6,000) dollars pursuant to 400.19(3), Fla. Stat. JURISDICTION AND VENUE 2. This court has jurisdiction pursuant to Section 120.569 and 120.57, Fla. Stat., and Chapter 28-106, F.A.C. 3. Venue lies in Martin County, pursuant to 120.57, Fla. Stat., and Chapter 28-106.207, F.A.C. PARTIES 4. AHCA is the enforcing authority with regard to nursing home licensure pursuant to Chapter 400, Part II, Fla. Stat. and Rule 59A-4 F.A.C. 5. “Stuart Nursing & Restorative Care Center” is a nursing home located at 1500 Palm Beach Road, Stuart, Florida 34994 and is licensed under Chapter 400, Part II, Fla. Stat., and Chapter 59A-4, F.A.C. COUNT I STUART NURSING & RESTORATIVE CARE CENTER FAILED TO PREVENT VERBAL AND/OR PHYSICAL ABUSE 483.13(b), C.F.R., as incorporated by Rule 59A-4.1288 F.A.c. Chapter 400.022(1)(o), Florida Statutes (ABUSE) Class II 6. AHCA re-alleges and incorporates (1) through (5) as if fully set forth herein. 7. Because Stuart Nursing & Restorative Care Center Participates in Title XVIII or XIX it must’ follow the certification rules and regulations found in 42 C.F.R. 483. 8. During an abbreviated survey and complaint investigation conducted on 8/28-29/2003 and based on staff interview and record review, it was determined that facility staff did not prevent the verbal and physical abuse of residents # 1,2,4, and 8. Findings include: (a) During the Agency for Health Care Administration (AHCA) investigation, an Adult Protective Services Investigator (APS) told the AHCA surveyor on August 27, 2003, at 1:30 P.M., of three residents who were allegedly emotionally and physically abused by a nursing assistant (CNA #1) over a lengthy period of time. The APS investigator stated the abuse was witnessed by other nursing assistants and residents. The APS investigator stated the abuse was in the form of (CNA#1) name calling and throwing fruit at a resident and then telling that resident that another resident threw the fruit, thereby trying to incite a fight between the two residents. The APS investigator stated the nursing assistants said they knew about the abuse but never reported it because they were afraid of the nursing assistant (CNA #1) who committed the abuse retaliating against them. The APS investigator stated that the nursing assistants that spoke to her said that there were other nursing assistants who witnessed the abuse as well, but were afraid to come forward. (ob) The DON (Director of Nursing) was interviewed on 8/28/03 in the morning about the events leading to the alleged abuse. It was stated that she overheard on 8/13/03 two nursing assistants telling the staffing coordinator about a nursing assistant’s behavior toward residents. The DON said she told the nursing assistants that they had to report the incident to her. The DON said and documentation verified the incidents were reported at that time, which was August 13, 2003. The DON related the incident information to the surveyor and described the events as a nursing assistant throwing a banana at a resident, pulling hair and twisting the ears of another resident, and putting residents together who are agitated and fight when put together, and calling a resident a name he didn't like to provoke him. The DON related that the staff did not report the abuse because the nursing assistant (CNA#1) told the other staff members who witnessed the incidents that she was a friend of the DON and she would fire them. The DON further stated that she was told during this 8/13/03 interview of the CNA's who witnessed the abuse that the nursing assistant (CNA#1) threatened to slash their tires and would be waiting for them outside. {c) Interviews were conducted by the surveyor on August 28, 2003, starting at 2:50 P.M., with staff involved, who witnessed the alleged abuse by the nursing assistant (CNA#1). CNA #2 was interviewed and stated the incident she observed happened July 12, 2003, at 8:00 A.M. She stated the resident (#2) was at the dining room table and tried to leave. The nursing assistant (CNA#1) wanted the resident close to her so she could make her mad and wouldn't let her leave. The nursing assistant (CNA#1) was sitting across the table from the resident, feeding another resident when she saw the nursing assistant(CNA#1) throw a banana at the resident and hit the resident in the head, and pulled his/her ear. She further observed the nursing assistant (CNA#1) also put (Residents #1 and #2) together to see if they would fight. The nursing assistant (CNA#2) was in the dining room for one hour while this occurred. The nursing assistant (CNA#2) interviewed stated that was the only time she ever saw incidents involving the nursing assistant (CNA#1). She was asked by the surveyor when did she tell the DON. She stated she told the DON that day (7/12/03). This was unable to be verified as the DON stated she first heard about the incidents on August 13, 2003. The nursing assistant (CNA #2) did not call the abuse hotline. Another nursing assistant (CNA#3) interviewed told this surveyor that she witnessed the nursing assistant (CNA#1) throw a banana at the resident ((#2), and other days, throw fruit at residents. She would also sit two residents (#1 and #2) together who didn't like each other so they would fight. She also witnessed the nursing assistant (CNA#1) twist the ears of resident #8 about two to three weeks ago, and the resident screamed. It was stated by the CNA #3 that this incident happened a couple of days before the nursing assistants told the DON about the resident being hit with a banana. It was also stated by CNA#3 at other times the nursing assistant (CNA#1) would call resident #4 by a name he/she didn't like two to three times just to tick him off. The nursing assistant (CNA#1) would say it was funny to see him get agitated. The nursing assistant (CNA#3) stated that the nursing assistants who witnessed the incidents didn't tell the DON about it because they were afraid of the nursing assistant (CNA#1) that she would hurt them, nor did they call the abuse hotline. The third nursing assistant (CNA#4) interviewed stated she was pushing a cart that day and she saw the nursing assistant throw something at a resident in the dining room. The nursing assistant (CNA#4) did not remember the dates of the incidents. CNA#4 stated that another time, the nursing assistant (CNA#1) put two residents (#1, 2) together to see them fight.. She (CNA#1) told the other nursing assistants "let them fight". Another resident (# 1) had her head pushed sideways by the nursing assistant (CNA#1). CNA#4 stated there was another incident in which the nursing assistant (CNA#1) pulled up her (CNA#1) shirt at the table to show everyone her breasts. CNA#4 said all the incidents happened over about a months time. It was stated by the interviewee (CNA#4) that she didn’t report the incidents because she was afraid. The nursing assistant (CNA#4) failed to call the abuse hotline. The day after the nursing assistant (CNA#1) was fired, the interviewee had her (CNA#4) tires slashed and her car was keyed. (d) The staffing coordinator who the nursing assistants told about the abuse was interviewed. It was stated the nursing assistants (CNA #'s 2, 3 and 4) spoke to her about two weeks ago. Two came to talk to her that day, and another nursing assistant later that day. The nursing assistants told her they saw another nursing assistant (CNA#1) agitate residents on the alzheimer unit. They said she (CNA#1) put residents together who didn't like each other, twisted ears of a resident. The Staffing coordinator stated that the DON came in while they were talking. It was stated by the staffing coordinator that she told the DON why they were there, and the DON called them into her office one by one and spoke to them. (e) Interview was conducted with the Social Service coordinator on August 29, 2003, at 12:00 P.M. It was stated that she/he is responsible for screening, training, prevention (inservice staff), and that her and the DON investigate allegations. It was asked how the staff could be assured that they wouldn't be retaliated against if reporting abuse allegations. It was stated that staff are assured of confidentiality. During inservices, staff are told to report allegations right away. Staff are told they can report to the abuse hotline anonymously as well. Facility policy and procedure for the reporting of abuse was reviewed with the social service director. The policy dictates that staff must report any suspicious acts immediately. (f) Review of the clinical records of the residents who were abused by the nursing assistant (CNA#1) revealed no documentation as to what happened. (g) Review of the facility investigation reveals one nursing assistant who knew about an incident of verbal abuse, which occurred on June 15, 2003. (h) Facility policy is for staff to report to the administrator, DON, or abuse coordinator any suspicious acts immediately, as per the abuse coordinator (social services director), who was interviewed on August 29, 2003, at 12:00 P.M. Facility policy was given to the surveyor for review. Section "d" dictates that the facility must “ensure that all alleged violations are reported to the administrator of the facility". Page two of the document states "it is everyone's responsibility to observe and report any suspicious acts immediately". (i) The residents involved all have dementia and behavioral problems. Facility staff did not report knowledge of abuse of four residents, resulting in continued abuse. The four residents were not free from mental and physical abuse. 9. Based on the foregoing, “Stuart Nursing & Restorative Care Center” violated 483.13(b), C.F.R., and incorporated by Rule 59A-4.1288, F.A.C., herein classified as a Class II violation, which carries, in this case, an assessed fine of $5,000. COUNT II STUART NURSING & RESTORATIVE CARE CENTER FAILED TO PROVIDE ADEQUATE SUPERVISION TO PREVENT FALLS 483.25(h) (2), C.F.R., as incorporated by Rule 59A-4.1288, F.A.C. (QUALITY OF CARE) CLASS II 10. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein, 11. During the abbreviated survey and complaint investigation conducted on 8/28-29/2003 and based on interview with staff and record review, it was determined that the facility did not provide adequate supervision to a resident (resident #3 in the survey sample) at risk for falls, resulting in a fall and fractured pelvis. Findings include: (a) Review of the clinical record for resident #3 reveals the resident was admitted July 25, 2003, for depression, GERD, overdose on synthroid and celexa, macular degeneration, hypothyroidism. Admission nursing assessment, dated July 25, 2003, shows the resident to be ambulatory with assistance. The 7/29/03 minimum data set admission assessment documents the resident to be continent of bowel, usually continent of bladder. The fall risk assessment, dated July 25, 2003, documents the resident to be a high risk for falls due to intermittent confusion, being ambulatory/incontinent, legally blind, problems, decreased muscular coordination, and osteoporosis. The initial plan of care for the residents safety, dated July 28, 2003, included interventions of raising the right full bedrail, and 1/2 of the left bedrail for repositioning and transfers, to increase bed mobility. On August 04, 2003, another intervention was added for the residents safety. The intervention was "requires 24 hour a day sitter to prevent falls". Through interview with the Director of Nursing (DON) on 8/29/03 at 12 noon and through review of the social worker documentation, it was revealed that the facility social worker arranged to have sitters for the resident, provided by the POA (Power of Attorney). The record documents the resident made attempts to get out of bed on July 26, 2003, at 6:30 A.M., July 28, 2003, on the 3:00 P.M. to 11:00 P.M. shift, July 29, 2003, at 5:30 A.M., and August 04, 2003, at 8:00 A.M. On August 05, 2003, at 3:15 P.M.-4:45 P.M., the nurses document "Day nurse _ ss Gave _~ me report that sitter was leaving at 5:00 P.M, today and new sitter in at 7:00 P.M.. When sitter left, she reported leaving and 10 (a case manager) from Help from the Heart came in and had (resident) sign some papers. I told __—s (Help from the Heart employee) we would try to keep resident with us. Would take her to dining room for supper. Nursing assistants instructed to keep her close to them. —— (Case manager) took resident to hall 1 dining room". The next entry is from 5:45 P.M.-6:15 P.M., Documentation in the nurses notes states "Ate supper in Hall 1 dining room. Found on floor in room 107 on right side complaining of severe pain in back and right hip". It was documented in the nurses notes that the POA and physician were notified, and the resident was sent to a local hospital. The note also states " (Resident) stated she had to go to the bathroom and thought she could do it herself, took walker, she stated to toilet, and forgot to use walker to return". (b) Interview was conducted August 28, 2003, at 3:50 P.M., with the nurse on duty on the unit the resident was housed on. She was asked about the events the day the resident fell. It was stated that she "saw the sitter with the resident. Came and told me she was going to leave about 5:00 P.M. This was approved by her company representative. No one came until 7:00 P.M. I asked the sitter to bring her out to me or a nursing assistant, but she never brought her out of the room. I continued working. The nursing assistants called me later on and said she was on the floor. I never saw (The case manager). ll No one let us know she was unattended. fo ocalled (case manager) later and she said she should have stayed". An interview was conducted with the nursing assistant who found the resident on the floor. The interview was on August 29, 2003, at 11:00 A.M., It was stated that " I found the resident on the floor in her room. She was conscious. She was able to make her needs known. Stated she was in pain and could I help her off the floor. She said she was sorry to bother me that she needed to go to the bathroom and fell, but she didn't know why (she fell). f was doing a split shift and was at the bottom of the hall, but the resident was not assigned to me. I saw her earlier with another woman in the dining area who assigns sitters for her. She sat at a table. The meal cart came and the woman asked me for a meal tray if it was ready. It wasn't on the cart. The next time I saw her (the case manager), she was outside the residents room. We talked about the residents meal tray. The woman (case manager) took the resident back to the dining area, and I brought her tray to her and left. When I collected other trays later on, I saw the resident outside her room. She asked me if that was her room and I said yes. I was never given report, I only knew she had private care". (c) Review of the facility documentation from 8/20/03 reveals a phone call to , case Manager from "help from the heart", who provided the sitter to the resident. Further 12 documentation review revealed the call made to the representative shows that she had arranged for a sitter for the 7:00 A.M. to 7:00 P.M. shift. The documentation also revealed the sitter notified the representative of the need to leave early. The note documents ("The case manager) arrived at facility 4:10 P.M., and was with the resident until 5:40 P.M. During the time in the facility, she (case manager) spoke with the charge nurse on that unit, and informed her of lack of coverage and told her she had affairs to work out with the resident, and she would be leaving and the evening sitter should be there by 7:00 P.M." Per nursing note," (the nurse) informed (the case manager) that she would have the staff take her to the main dining room and keep an eye on her. This seemed to be an area of misunderstanding between the (charge nurse), and (Case manager for Help from the Heart), in that the resident was accustomed to eating in the hall 1 lounge area outside her room with his/her sitters. She (case manager) informed me (DON) that she took the resident to the lounge/dining area on hall 1 just outside her room to a table where they reviewed bills and signed checks. She stated that the nursing aids were in the area and then the residents tray was delivered to her at the table where they were sitting. She (Case manager) finished her business and left without telling the nurse manager or the aides that she was leaving at that time and signed out at 5:40 P.M.". (d) Another note by the DON, dated August 21, 2003, documents " I also spoke with (Nursing assistant) who stated that she told (Case manager) that she had to leave the hall and needed to take the resident to the main dining room for supervision. (Case manager) told her that she would be with her and help her finish her dinner. (Nursing assistant) left the hall to help feed resident. (Case Manager) removed our ability to supervise this resident by leaving her unsupervised and refusing to have her taken to the main dining room as planned. The facility had taken measures to have her supervised 24 hours a day and was providing this care in the absence of the sitters; by not informing someone that she was leaving the resident, she placed her in harms way". A facility interview with a Licensed Practical Nurse (LPN) working on a different hall reveals the following documentation: "___ (LPN) states that on August 05, 2003 during the 7-3 shift, she was working on hall 2. The private duty aide approached her after lunch and stated that she needed to leave at 5:00 P.M. and someone would be back at 7:00 P.M. (LPN) told her that you cant tell me because I am not on at that time, you have to speak to the 3-11 nurse. She said OK. Then (LPN) did not see her 4 again. Then when ___- (nurse in charge) came on, __ (LPN) told her that the private duty aide had told her that she had to leave and she had been told that she had to talk to ___ {nurse in charge)". (e) The facility administrator was interviewed on August 29, 2003, at 9:50 A.M. He was asked if there was any policy for the monitoring of sitters. It was stated no. The administrator stated the policy provided was developed after the incident with the resident. It was also stated that sitters now have to sign in and out. The administrator stated the staff have been lax about the sitters. In interview with the administrator on 8/29/03 at 9:50 AM he indicated that following the incident noted above with resident #3, that the facility institued a new policy to include Maintating a file containing sitters qualification and screening/background checks. He further stated that sitters will now be required to sign in and sign out. (f£) The facility had no way to ascertain the qualifications of the sitters tending the residents, nor any way to monitor the sitters as to their assignment times. The facility did not provide adequate Supervision for the resident, who needed 24 hour supervision to prevent fails. Lacking specific policy and procedures for sitters, the facility did not know if the person who was with the resident was qualified to 1S Sit with the resident and provide supervision. The facility abrogated their responsiblity to adequately monitor the resident as the person who was with the resident last waS a case manager who assigned sitters, not a sitter herself, and should not have been given responsibility for monitoring the resident or delivering the resident to a staff member when she was through with her task. The facility staff did not adequately monitor the whereabouts of a resident who was to be provided twenty four hour supervision to prevent falls. The staff did not ensure that a qualified person was with the resident when the sitter had to leave early. The resident had a fall and was transported to a local hospital, where it was discovered he/she had a fractured pelvis as revealed by documentation review. 12. Based on the foregoing, “Stuart Nursing & Restorative Care Center” violated 483.25(h) (2), C.F.R., and incorporated by Rule 59A-4.1288, F.A.C., herein classified as a Class II violation, which carries, in this case, an assessed fine of $5,000. COUNT III ADDITIONAL FINE UNDER SECTION 400.19(3), FLORIDA STATUTES 13. This facility had a Class II deficiency found in Survey completed 7/29/2003. Because the facility has had two Class II deficiencies arising from separate surveys within a 60- day period, they are subject to a 6-month survey cycle. The 16 Agency, in addition to any administrative fines imposed, may assess a survey fee. The fine for the 2-year period shall be $6,000, one half to be paid at the completion of each survey. PRAYER FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: A. Make a factual and legal findings in favor of the Agency on Counts I and II and B. Assess against “Stuart Nursing & Restorative Care Center” an administrative fine of $10,000 for the Class II violations in Counts II, in accordance with Section 400.23(8) (bo) Fla. Stat and I. Cc. Assess a survey of $6,000 in accordance with Section 400.419(3), Pla. Stat. D. Award the Agency for Health Care Administration costs related to the investigation and Prosecution of the case in accordance with Section 400.121(10), Fla. Stat. E. Grant such other relief as the court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2001). Specific options for administrative action are set out in the attached Election of Rights and explained in the attached Explanation of Rights. All requests 17 for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, Lealand McCharen, Drive, Mail Stop #3, Tallahassee, #(850) 922-5873, Agency Clerk, 2727 Mahan Florida 32308. Telephone RESPONDENT IS FURTHER NOTIFIED THAT FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT, PURSUANT TO THE ATTACHED ELECTION oF RIGHTS, WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted. Copy to: Nelson Rodney, Assistant General Counsel Agency for Health Care Administration Manchester Building 8355 NW 53°° Street Miami, Florida 33166 Diane Reiland, Field Office Manager Agency for Health Care Administration 1710 East Tiffany Drive, Suite 100 West Palm Beach, Florida 33407 Long Term Care Program Office Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 18 Rodney Assistant General Counsel Agency for Health Ca 8355 NW 53° Street Miami, Florida 33166 Administration Jean Lombardi, Finance and Accounting Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 CERTIFICATE OF SERVICE NE BD ERV ICE I. HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S, Certified Mail, Return Receipt Requested to Joseph M, Murray, Administrator, Stuart Nursing & Restorative Care Center, 1500 Palm Beach Road, Stuart, Florida 34994, and to Joseph Ficocelio, Register Agent, 7300 Oleander Avenue, Port Saint Lucie, Florida 32952 on Colbie. Io _, 2003. Nelson Rodney 19

Docket for Case No: 03-004683