oiaat 1 poh GLY -00RF- STATE OF FLORIDA Palaeren| AGENCY FOR HEALTH CARE ADMINISTRATION '*~ *~ STATE OF FLORIDA 04 AGENCY FOR HEALTH CARE ADMINISTRATION, Aub Petitioner, AHCA NO: 2003007654 vs. AVANTE AT MELBOURNE, INC., 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 AVANTE AT MELBOURNE, INC., (hereinafter “Respondent”) and alleges: Nature of the Action 1. This is an action to impose a conditional licensure status effective September 5, 2003 pursuant to Sections 400.102(1) (a) and (d), 400.23(7) (b), and 400.23(8) (b), Florida Statutes. 2. The Respondent was originally cited for the deficiency during the survey conducted on or about September 5, 2003. Jurisdiction and Venue 3. The Agency has jurisdiction over the Respondent pursuant to Chapter 400, Part II, Florida Statutes. ono . _ 1 4. Venue lies in Brevard County, Division of Administrative Hearings, pursuant to 120.57 Florida Statutes, and Chapter 28, Florida Administrative Code. Parties 5. AHCA, is the enforcing authority with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes and Rules 59A-4, Florida Administrative Code. 6. Respondent is a nursing home located at 1420 South Oak Street, Melbourne, FL 32901. The facility is licensed under Chapter 400, Part II, Florida Statutes and Chapter 59A-4, Florida Administrative Code, having been issued license number #SNF13360961. COUNT I RESPONDENT FAILED TO PROMOTE CARE FOR RESIDENTS IN A MANNER AND IN AN ENVIRONMENT THAT MAINTAINS OR ENHANCES EACH RESIDENT’S DIGNITY AND RESPECT, IN FULL RECOGNITION OF HIS OR HER INDIVIDUALITY. Fla. Admin. Code R.59A-4.1288, ADOPTING BY REFERENCE 42 CFR § 483.15(a) (2002) AND §400.022(1) (n), F.S. (2002) CLASS II DEFICIENCY ISOLATED 7. AHCA re-alleges and incorporates (1) through (6) as if fully set forth herein. 8. On or about September 5, 2003, a survey was conducted at Respondent’s facility. COO 2 9. Based on observation, interview and record review, Respondent failed to prevent psychosocial harm to one random sampled resident (RS#22), 2 sampled residents (#17 & #18), and non-sampled residents with cognitive impairment ina sample of 21. 000 Findings : Random sampled resident RS #22 had diagnoses of arteriosclerotic heart disease, traumatic brain injury and hypoxia encephalopathy. The resident was an independent individual living, in his/her own home prior to admission in April 3, 2003. Review of the history section in the resident's chart revealed that the resident sustained anoxic encephalopathy. "The resident was extubated after transfer to the nursing home and a peg tube was placed for feeding." Review of the admission minimum data set (MDS), dated April 23, 2003, revealed the resident had both impaired short and long-term memory. A review of the resident's medication administration record (MAR) revealed Ativan was prescribed for "extreme fear" and “panic”. Review of the grievance log, dated May 9, 2003, revealed that certified nursing assistant (CNA) #1 verbally abused resident RS #22. The CNA was overheard by a therapist to say to the resident: "J thought I told you this morning not to do this ... (expletive) anymore. I am tired of dealing with this ... (expletive) all day long.” Therapist (#1) was in the resident's room behind a curtain when the remark was made by the CNA. The therapist stated in an interview at 11 :20 AM on September 4, 2003, in a therapy office, that the comment to the resident "was not right". Interview with therapist #1 revealed that the therapist thought CNA #1 was getting burned out. The therapist stated that CNA #1 usually goes out of her way with residents "but she gets a little burned out.” The therapist thought that the remark to the resident was inappropriate and an incident report was filed by both therapist #1 and therapist #2. Therapist #2 heard only the last word in the comment to the resident. An interview with therapist #1 and therapist #2 took place in the conference room at 3:30 PM on September 4, 2003. Therapist #2 had just entered resident RS #22's room on May 9, 2003 and only heard the last part of the comment made by CNA #1. Interview with therapist #2 at this time revealed that she had heard the vulgar (expletive) word from CNA #1 on May 9, 2003 in the resident's room. During this interview, therapist #1 repeated what she heard on May 9, 2003, and both therapists confirmed their signatures on the incident report. Interview at 3:45 p.m. on September 4, 2003 in the conference room with the administrator, revealed that the former administrator reviewed the incident 000 report shortly after May 9, 2003. The decision made by the former administrator at that time was that the incident should be classified as "unfounded". CNA #1 was not disciplined or found to have done anything wrong. No written documentation of the rationale for the decision of the past administrator was produced for review. Review of the CNA #1's personnel file found no mention of the May 9, 2003 incident. A review of CNA #1's personnel file revealed that on August 11, 2003, CNA #1 became involved in another incontinence issue involving another resident under her care. According to facility documentation, on August 11, 2003, at around 12 noon, CNA #1 entered the therapy room and angrily confronted therapy staff in front of other residents. CNA #1 wanted to know why therapy staff had put resident #1 back to bed. Therapy staff explained to CNA #1 that resident #1 had been brought to therapy, but smelled like he/she had soiled himself/herself. The resident had also stated to therapy staff that he/she had to go to the bathroom. Therapy staff explained they had returned the resident to his/her room to be toileted. CNA #1 explained angrily that the resident was checked for toileting and had not soiled himself/herself. For breaching the confidentiality of the resident, CNA #1 was given a written reprimand and counseled according to an interview with nursing and administration at 10:25 a.m. on September 4, 2003 in the conference room. Resident #17 had both an intact short-term and long-term memory according to the most recent MDS dated July 29, 2003. Resident #17 lived on the north wing. Interview with the resident at 11 AM on September 4, 2003 revealed several issues regarding disrespectful treatment of residents by CNAs, especially on the 3-11 shift. Resident #17 stated that several CNAs, especially on the south wing, were visibly unhappy about having to assist with the evening meal in the main dining room on many occasions. He/she stated that they have a bad attitude and make it known to the residents by speaking to them and handling their food in a disrespectful manner. Review of the grievance log revealed this to be true as the resident complained on May 2, 2003 of three cans of soda being thrown onto a table where the resident was sitting, after requesting the sodas. The resident stated: "after all, we didn't do anything wrong and we don't know why they act that way towards us." Interview revealed resident #17 had also observed his/her roommate being put back to bed immediately after dinner because it was easier for the CNAs to get their work done. He/she had commented to the CNAs that they shouldn't be putting this resident back to bed so early since he/she gets up only periodically during the day and it is a long night for him/her when he/she goes to bed so early. The CNAs did not respond to resident #17 when he/she confronted them about this. He/she stated that he/she had also made complaints to the administration about the noise level the CNAs generate at night and that often he/she is unable to sleep. This issue had not been resolved. A second interview with cognitively alert resident #17 took place on September 4, 2003 at 1:15 p.m. This interview revealed that the resident perceived comments by staff members to be sarcastic and inappropriate. The resident stated that within the past 6 months, a CNA yelled at a cognitively impaired resident: "shut the ... (expletive) up." Resident #17 said: "T don't think it's fair" in reference to the treatment of dependent and cognitively impaired residents. He/she stated that CNA #2 speaks inappropriately and told a resident to "shut up" during this past weekend. CNA #2 worked on the second shift (3-11). The resident also stated that CNA #2 speaks inappropriately to residents who "can't help themselves. She tells them to "shut up" or "you don't need that". Interview with resident #RS 23 of the south wing took place on September 4, 2003 at 2:30 p.m. During the interview, the resident stated a CNA told a non- sampled resident to "shut up" over the past weekend. The cognitively alert resident stated that CNAs verbally abuse residents who can't take care of themselves, the vulnerable residents. The resident stated that he/she had not been abused because he/she is alert and can defend himself/herself. The resident stated that confused and defenseless residents were targeted for verbal abuse because they could not defend themselves. During the group interview on September 3, 2003, at 9:45 a.m., a cognitively alert resident living on the south wing stated that he/she had waited 45 minutes to go to the bathroom after using the call light. The cognitively alert resident stated that it was difficult to get assistance at this time due to the shift change at 11 p.m. The second shift (3-11) delayed care in order to have third shift personnel provide the continence care. The resident stated that his/her roommate also watched the clock and timed the incident on this night. During the group interview on September 3, 2003, at 9:45 a.m., two cognitively alert residents stated a CNA took off her shoe and scratched her foot in the dining room during a meal. The CNA then proceeded to assist residents with their meals without first washing her hands. The residents were specific in that it occurred on Saturday, August 30, 2003. This incident was reported to the director of nursing (DON). Interview with the DON at 10:00 a.m. on September 5, 2003 in the conference room confirmed the fact that residents had reported the incident to the DON. Observation during an interview with resident RS #22 in his/her room at 1 PM on September 4, 2003, revealed a staff member opened the door without knocking first. Four residents lived in the room. Resident #17 stated that he/she had also made complaints to administration about the noise level the CNAs generate at night and that often he/she was unable to sleep. This issue had not been resolved. 10. The above actions or inactions are a violation of 42 CFR 483.20(k) (2002), which requires the facility to promote care for residents in a manner and in an environment that maintains or enhances each resident’s dignity and respect in full recognition of his or her individuality. 11. The above actions or inactions are a violation of Section 400.022(1)(n), Florida Statutes (2002), which requires the facility to treat its residents courteously, fairly and with the fullest measure of dignity. 12. Pursuant to Section 400.23(8) (b), Florida Statutes, the foregoing is an “isolated” class II deficiency and as such, 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. 13. The above referenced violation therefore, constitutes the grounds for the imposed Class II deficiency authorized pursuant to Sections pursuant to Sections 400.102(1) (a) and (d), and 400.23(8) (b), Florida Statutes. 14. The Agency seeks to impose a Conditional Licensure Status effective September 5, 2003 through September 30, 2003, based on the Class II deficiency, as authorized under Sections 400.102(1) (a) and (d), 400.23(7) (b), and 400.23(8) (b), Florida Statutes. 000 6 WHEREFORE, AHCA requests this Court to order the following relief: A. Make factual and legal findings in favor of the Agency on Count I; B. Recommend that the change of licensure status effective September 5, 2003 through September 30, 2003, from Standard to Conditional be upheld; and Cc. Reasonable attorney’s fees and costs; and D. All other general and equitable relief allowed by law. DISPLAY OF LICENSE Pursuant to Section 400.23(7) (e), Florida Statutes, AVANTE AT MELBOURNE, INC., shall post the 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 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: Lealand McCharen, Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted, Katrina D. Lacy, Esquire Florida Bar No. 0277400 Senior Attorney Office of the General Counsel Agency for Health Care Admin. 525 Mirror Lake Drive North, 330G St. Petersburg, Florida 33701 OFFICE: (727) 552-1525 FAX: (727) 552-1440 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Certified Mail Return Receipt No. 7003 1010 0003 4303 8555 to Corporation Service Company, 1201 Hays Street, Tallahassee, FL 32301-2525 dated on November /F/* 2003. atrina D. Lacy, Tetuixe Copies furnished to: Corporation Service Company. Registered Agent for Avante at Melbourne, Inc. 1201 Hays Street Tallahassee, FL 32301-2525 (U.S. Certified Mail) Thomas L. McDaniel, Administrator Avante at Melbourne, Inc. 1420 South Oak Street Melbourne, FL 32901 (U.S. Mail) Katrina D. Lacy AHCA - Senior Attorney 525 Mirror Lake Drive Suite 330G St. Petersburg, FL 33701

Docket for Case No: 04-000023