STATE OF FLORIDA a AGENCY FOR HEALTH CARE ADMINISTRATION ~ eS . STATE OF FLORIDA Oe AGENCY FOR HEALTH CARE jenee oe: ADMINISTRATION, rd Au . Petitioner, Vs. Case Nos. 2004006753 2003008107 DELTA HEALTH GROUP, INC., d/b/a GLEN OAKS HEALTH CARE, OS: - OSU q Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter Agency), by and through the undersigned counsel, and files this Administrative Complaint against DELTA HEALTH GROUP, INC., d/b/a GLEN OAKS HEALTH CARE, (hereinafter Respondent), pursuant to §§ 120.569, and 120.57, Fla. Stat., (2004), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine and survey fee in the amount of $23,500.00 and assign a conditional licensure status commencing July 14, 2004, based upon one cited widespread State Class I deficiency and one cited isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Fla. Stat. (2004). 2. Venue lies pursuant to Fla. Admin. Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended); Chapter 400, Part II, Florida Statutes, and; Fla. Admin. Code R. 59A-4, respectively. 4. Respondent operates a 76-bed nursing home located at 1100 Pine Street, Clearwater, Florida, 33756, and is licensed as a skilled nursing facility, license number 1173096. 5. 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 (1) through (5) as if fully set forth herein. 7. That pursuant to law, a facility must develop and implement policies and procedures that prohibit mistreatment, neglect, and abuse of residents ... The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of an unknown source, ...are reported immediately to the administrator of the facility and to other officials in accordance with state law through established procedures (including to the State survey and certification agency). A facility must ...prevent further potential abuse while the investigation is in progress. 42 CFR § 483.13(c). A facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to, inter alia, assess resident care practices and develop plans of action to correct and respond quickly to identified quality deficiencies. Section 400.147(1), Fla. Stat. (2004). Further, each resident has a right to be receive adequate and appropriate protective services, § 400.022(1)(1), Fla. Stat. (2004), and the right to be free from mental and physical abuse. § 400.022(1)(o), Fla. Stat. (2004) and 42 CFR § 483.13(b). 8. That based upon observation, interviews, and review of records, the Respondent facility failed to implement abuse prohibition policies and procedures for the components of reporting abuse for one resident and failed to develop and implement a policy for the protection of the resident for one resident who had been threatened with sexual assault. 9. That said failures placed all sixty-six residents in the facility, of whom twenty-nine are considered vulnerable, at risk and presented a situation in which immediate corrective action is necessary because the facility’s non-compliance has caused, or is likely to cause, serious injury, harm, impairment or death to a resident and resulted in findings of immediate jeopardy. 10. That on or about July 14, 2004, the Petitioncr Agency completed an annual survey of the Respondent's facility. 11. That Petitioner’s representatives reviewed the Respondent’s records. 12. That the records of resident number four, including but not limited to, an undated Cumulative Diagnosis List, and a quarterly assessment and care plan dated May 24, 2004, reflect the following: a. That the resident is a twenty-seven years old disabled adult; b. That the resident suffers from Huntington’s Chorea, neuropathy, anxiety, and psychosis; c. That the resident has short and long term memory deficits; d. That the resident has severely impaired decision making capability; e. That the resident required extensive assistance to total dependence for activities of daily living; f. That the resident has bilateral limitation of range of motion in the neck, legs, hands, arms, and feet with partial loss of voluntary movement; ies) g. That the resident suffers from a communication deficit; h. That staff must anticipate the resident’s needs. 13. That the Petitioners representative observed resident number four, who was wheelchair bound in the dining room on July 12, 2004, at which time the resident did not respond to the Petitioner’s representative’s questions. 14. That the records of resident number sixteen, including but not limited to, a comprehensive assessment dated June 17, 2004, reflect the following: a. That the resident is fifty-four years old; b. That the resident was admitted to the Respondent facility on June 17, 2004; c. That the resident has short term memory deficit; d. That the resident had no long term memory deficit e. That the resident had modified independence for decision making; f. That the resident was independent for ambulation and transfer; g. That the resident was the resident’s responsible party; h. That the resident exhibited no mood or behavior symptoms since the resident’s admission. 15. That on July 12, 2004, at approximately 8:30 a.m., the Petitioner’s survey team observed law enforcement and representatives of Adult Protective Services enter the Respondent facility. 16. That the Respondent’s administrator informed the survey team on J uly 12, 2004, that law enforcement and Protective Services were on site to investigate an incident which occurred on Sunday July 11, 2004, at approximately 10:15 p.m., involving resident number four. 17. That the Petitioner’s representative reviewed the nursing progress notes of resident number four which documented, at 10:15 p.m., that, when the door to resident number four's room was opened and light turned on by the Certified Nursing Assistant (hereinafter CNA). resident number sixteen "...jumped up and pulled [his/her] pants up and left the room". 18. That the Petitioner’s representatives reviewed the Respondent’s abuse prevention program policies and procedures. 19. That the Respondents policies, entitled, "Prevention of Resident Abuse, Neglect, Mistreatment or Misappropriation of Property”, and dated November 2001, requires under the reporting requirements that "...upon suspecting abuse, neglect, or exploitation of a resident, the following procedure is to be followed: immediately notify the Administrator, Director of Nursing, and the Florida Abuse Hotline 1-800-96-ABUSE”. 20, That a review of the training curriculum of the facility regarding abuse reporting found it did contain the requirements for immediate reporting of suspected abuse to the Administrator, Director of Nursing, and the Abuse Hot line. 21. That a review of the personnel records for the two CNA’s, who witnessed the incident and the unit charge nurse contained documentation that they had completed the facility Abuse Training program within the past year. 22. That the petitioner’s interviewed the Respondent’s administrator, director of nursing, a charge nurse, and seven CNAs on July 12 and 13, 2004. 23. That the Respondent’s administrator indicated that at approximately 10:30 p.m. on July 11, 2004, the director of nursing had been phoned by the charge nurse for the north wing and informed that resident number sixteen was found, pants down, straddling resident number four who was lying in bed. Resident number four’s diaper had been pulled aside. 24. That the Respondent’s administrator indicated that he first learned of the incident when notified by Adult Protective Services upon his arrival on July 12, 2004. 25. That the Respondent’s charge nurse for the north wing indicated the following: a. That she was present at the time of the incident; b. That she had not immediately called the Abuse Registry to report the incident; c. That “I didn’t think. | thought I would call the director of nursing”; d. That the director of nursing instructed her that the facility had twenty-four (24) hours to report the incident; e. That the director of nursing instructed her not to call the resident’s mother or police and to wait until the morning when “...we can get more heads together.” 26. That the Respondent’s director of nursing indicated the following: a. That she had learned of the incident via phone call from the charge nurse at approximately 10:30 p.m. on July 11, 2004; b. That she had not reported the incident to the Abuse Registry as her staff had not witnessed actual sexual activity; c. That she had not notified the Respondent administrator, the resident’s attending physician, the resident’s family, or law enforcement at the time that she learned of the incident; d. That she directed the staff to provide one to one monitoring of the residents. 27. That one of the Respondent’s CNA’s indicated the following: a. That she had witnessed the incident; b. That she had not notified the Abuse Registry regarding the incident; c. That she assumed the charge nurse would notify the Abuse Registry after being notified by the charge nurse that she would “...take care of everything.” d. That at approximately 11:00 p.m. on July 11, 2004, upon resuming duties, staff was instructed to provide one to one monitoring to prevent resident number sixteen from entering the room of resident number four; e. That the same would be accomplished by sitting in chairs in hallways or doorways near the resident’s rooms; f. That other full care duties for residents would be maintained; g. That residents four and sixteen’s rooms were not constantly monitored. 28. That a second of the Respondent’s CNA’s indicated the following: a. That he had arrived at resident number four’s room at approximately 10:15 p.m. after hearing the other CNA cry out; b. That he observed resident number sixteen buckling the resident’s belt; c. That he had not notified the Abuse Registry regarding the incident, d. That at approximately 11:00 p.m. on July 11, 2004, upon resuming duties, staff was instructed to provide one to one monitoring to prevent resident number sixteen from entering the room of resident number four, e. That the same would be accomplished by sitting in chairs in hallways or doorways near the resident’s rooms; f. That other full care duties for residents would be maintained; g. That residents four and sixteen’s rooms were not constantly monitored. 29. That five other of the Respondent’s CNA’s indicated the following: a. That all would report suspected abuse to the charge nurse; b. That none would notify the Abuse Registry regarding suspected abuse as required by Florida law and the Respondent facility's policy. 30. That the Respondent facility failed to ensure that the applicable law and internal policy was implemented to require that any suspected resident abuse be immediately reported to the administrator and the Abuse Registry. 31. That Petitioner’s representatives observed on July 12, 2004, from 6:50 a.m. to 7:15 a.m., that no staff of Respondent was visible in the hallway of the north wing, where residents number four and sixteen reside, monitoring resident behavior or whereabouts. 32. That no chairs were observed at or near the rooms of residents number four or sixteen. 33. That the door to the room of resident number four was closed. 34. That the Petitioner’s representatives interviewed the Respondent’s administrator, director of nursing, and a detective for local law enforcement on July 12, 2004. 35. That the Respondent’s administrator indicated that the facility policy was that door to the room of resident number four was to be left open due to the resident’s inability to utilize a call bell. 36. That the director of nursing indicated that the Respondent facility had no policies regarding one to one monitoring of residents. 37. That a detective for local law enforcement indicated that he had assigned an officer to stand by the room of resident number sixteen as the facility had no staff monitoring resident number sixteen’s behavior or location. 38. That the Respondent facility failed to develop and implement procedures to prevent further potential abuse of residents and failed to respond quickly to identify and correct deficiencies in violation of law. Further, the Respondent facility failed to provide adequate and appropriate services to prevent resident abuse or neglect in violation of law. 39. That the above constitutes an imminent danger to the residents of the Respondent facility or a substantial probability that death or serious physical or emotional harm would result there from. 40. That resident number sixteen was arrested by law enforcement in the afternoon of July 12, 2004, and removed from the facility. 41. That the CNA who witnessed the incident was counseled and re-educated on the reporting of resident abuse or neglect in the evening of July 13, 2004. No other staff were provided training. 42. That the Petitioner’s representative's notified the Respondent administrator of it’s finding of immediate jeopardy on July 14, 2004, at 3:20 p.m. 43. That on July 14, 2004 at 3:20 p.m., the Respondent facility began to initiate a plan to re- educate staff on policies and procedures regarding identifying, reporting, and protecting residents from abuse. The facility began in-servicing the management including the director of nursing and unit nursing managers and all direct care staff as they reported to duty on July 14, 2004. 44. That the Respondent facility failed to develop and implement procedures to prevent further potential abuse of residents and failed to respond quickly to identify and correct deficiencies in violation of law. 45. That the agency determined that the above constitutes grounds for the imposition of a Class I deficiency in that it presents an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result there from, pursuant to Section 400.419(2)(a), Florida Statutes (2004), and pursuant to Section 400,23(8)(a), Florida Statutes, the foregoing is a “widespread” class I deficiency and as such, presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in the facility. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency and $15,000 for a widespread deficiency. A fine shall be levied notwithstanding the correction of the deficiency. The Agency is authorized to impose a fine in the amount of fifteen thousand dollars ($15,000) as a widespread State Class I deficiency. 46. That the Agency provided Respondent with the mandatory correction date for this deficient practice of July 17, 2004. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $15,000.00 against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(a) and 400.102, Fla. Stat. (2004), and assess costs related to the investigation and prosecution of this case, pursuant to § 400.121(10), Fla. Stat. (2004). COUNT II 47. The Agency re-alleges and incorporates paragraphs (1) through (37) as if fully set forth herein. 48. That pursuant Florida law, a facility must immediately inform the resident; consult with the resident’s physician; and if know, notify the resident’s legal representative or an interested family member when there is — (A) an accident involving the resident which results in injury and has the potential for requiring physician intervention; (B) A significant change in the resident’s physical, mental, or psychosocial status. 42 CFR § 483.10(b){11). 49. That based upon observation, interview and record review, the facility failed to immediately notify the physician and family of resident number four regarding an incident involving possible scxual abuse of the resident. 50. That the Petitioner’s representatives reviewed the Respondent’s records on July 12, 2004. 51. That a facility report, dated July 11, 2004, indicated that, on July 11, 2004 at 10:15 p.m., resident number four, who is totally dependent upon staff and unable to use a call bell, was observed lying in bed. Resident number sixteen, with pants pulled down, was seen straddling resident number four whose incontinence brief had been pulled to the side. The entry reflects that the resident’s room door was closed at the time of the observation. §2. That the incident involving resident number four constitutes an accident involving a resident which has the potential for requiring physician intervention or a significant change in the resident’s physical, mental, or psychosocial status. 53. That in the section identifying the date and time that resident number four’s physician was notified, the form annotated that "ARNP notified 7/12/04 at 10:00 a.m." 54, That in the section identifying what date and time that resident number four’s representative was notified, the form documented that mother "was notified 7/12/04 at 10:05 a.m." 55. That in the section identifying what date and time the facility director of nursing was notified, the form recited that the director "was notified 7/11/04 at 10:30 p.m." 56. That following the physician’s notification by the facility, the physician issued new medication orders and ordered laboratory tests for resident number four. 57. That the Petitioner's representatives interviewed the Respondent’s charge nurse on July 14, 2004. 58. That the charge nurse related the following: a. That she was on duty at the time of the incident; b. That she called the Respondent’s director of nursing at 10:30 p.m.: c. That the Respondent's director of nursing directed the charge nurse not to contact resident number four’s mother or the police and wait until morning when “we can get more heads together.” 59. That the Respondent facility waited near twelve hours from the time of a possible sexual assault on resident number four to notify the resident’s physician and family. 60. That the delay was intentional and was contrary to the applicable regulatory requirement that said notification be immediate. 61. That the Agency determined Respondent had not provided the necessary care and services and had 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 and cited this deficient practice as an isolated State Class II deficiency. The Agency is authorized to impose a fine in the amount of two thousand five hundred dollars ($2,500) as an isolated State Class IT deficiency. 62. That the Agency provided Respondent with the mandatory correction date for this deficient practice of August 14, 2004. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $2,500.00 against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(b) and 400.102, Fla. Stat. (2004), and assess costs related to the investigation and prosecution of this case, pursuant to § 400.121(10), Fla. Stat. (2004). COUNT III 63. The Agency re-alleges and incorporates paragraphs (1) through (5), (7) through (46), (48) through (62) as if fully set forth herein. 64. That as a result of the Agency’s annual survey of July 14, 2004, the Respondent was cited for one widespread Class | deficiency and one isolated Class II deficiency. 65. That pursuant to the provisions of law, the Petitioner agency must conduct a survey of the Respondent facility every six months for two year period following the survey of July 14, 2004. § 400.419(3) (2004). 66. That the Petitioner Agency shall impose a fine of six thousand dollars ($6,000.00) to the facility which is subject to such a six month survey cycle. § 400.419(3), Fla. Stat. (2004). 67. That said fee must be assessed though the survey will occur in the future. See, Agency for Health Care Administration v. Luz Home for the Elderly, Inc., d/b/a/ Luz Home for the Elderly, Case No. 02-263PH (Agency for Health Care Administration). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration requests the Court to order relief with a fine and survey fee against the Respondent pursuant to Sections 400.419(3), Florida Statutes (2004), in the amount of six thousand dollars ($6,000.00). COUNT IV 68. The Agency re-alleges and incorporates paragraphs (1) through (5), (7) through (46), (48) through (62) as if fully set forth herein. 69. Based upon Respondent’s one cited widespread State Class I deficiency and one cited isolated State Class Il deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(b), Fla. Stat. (2004). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(7) commencing July 14, 2004 and ending July 22, 2004. fas J. Waish, IL, Esquire Fla. Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1525 (office) 727.552.1440 (fax) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2003), Respondent shall post the most 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. 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 Election of Rights (one page) and explained in the attached Explanation 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, 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. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been served by certified mail, return receipt no: 7003 1010 0003 0279 4294 on January If! , 2005 to Regina L. Cooks, Administrator, Glen Oaks Healthcare, 1100 Pine Street, Clearwater, Florida, 33756, and by U.S. Mail to Sondra McCrory, Registered Agent, Glen Oaks Healthcare, 2 North Palafox Street, Pensacola, Florida, 32502. Tho A Waish, I, Esq. Copies furnished to: Regina L. Cooks Administrator Glen Oaks Healthcare 1100 Pine Street Clearwater, FL 33756 (Certified U.S. Mail) Sondra McCrory Registered Agent Glen Oaks Healthcare 2 North Palafox Street Pensacola, FL 32502 (U.S. Mail) Thomas J. Walsh, TI Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive, #330G St. Petersburg, FL 33701 (Interoffice Mail)

Docket for Case No: 05-000549