ETA: ope ETT ee STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA Case No. 2005000265 MAGNOLIA LTC INC., MAGNOLIA MANOR, a 5 -| q Ve Respondent. ADMINISTRATIVE COMPLAINT AUDNILINID SOS ee COMES NOW the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA”), by and through the undersigned counsel, and files this Administrative Complaint against MAGNOLIA LTC INC., d/b/a MAGNOLIA MANOR (“Respondent”) pursuant to Sections 120.569 and 120.57, Florida Statutes (2004), and alleges: NATURE OF THE ACTION a ee 1. This is an action to impose administrative fines of $2,000, $500, and $500, and order to refund $5,475, for a total of $8,475, pursuant to the various citations, statutes, and rules cited in each of the four counts below. 2. In summary, Respondent was cited as follows: November 5, 2004 Assisted Living Facility financial monitoring visit. Respondent was cited for a Class II violation and three Class III violations. December _10, 2004 Assisted Living Facility financial monitoring visit. Respondent was cited for an uncorrected Class Il violation and three uncorrected Class II violations. Page 1 of 15 JURISDICTION AND VENUE JURISDRI so 3. This tribunal has jurisdiction over Respondent, pursuant to Sections 120.569 and 120.57, Florida Statutes (2004). 4. Venue shall be determined, pursuant to Chapter 28-106.207, Florida Administrative Code (2004). PARTIES 5. Pursuant to Chapter 400, Part Ill, Florida Statutes (2004), and Chapter 58A-5, Florida Administrative Code (2004), AHCA is the licensing and enforcing authority with regard to assisted living facility laws and rules. 6. Respondent is an assisted living facility located at 3339 Highway 17, Green Cove Springs, Florida 32043. Respondent is and was at all times material hereto a licensed facility under Chapter 400, Part Ill, Florida Statutes (2004), and Chapter 58A-5, Florida Administrative Code (2004), having been issued license number 10379. COUNT I(A 100) Respondent failed to maintain the facility on a sound financial basis, which threatens the residents’ health, safety and welfare. § 400.419(2)(b), Fla. Stat. (2004) § 400.4275, Fla. Stat. (2004) Fla. Admin. Code R. 58A-5.021(1) (2004) 7. AHCA re-alleges paragraphs 1-6 above. 8. On November 5, 2004, AHCA conducted an Assisted Living Facility financial monitoring visit at Respondent’s facility. AHCA cited Respondent for a violation, based on the following: a) Areview of the facility financial records on November 4" and 5", 2004, indicate: 1. No Worker’s Compensation Certificate exists for the facility. 2. A review of the Income/Expense statement reflects no lease or mortgage payments for the facility. 3. Payroll checks have been returned for insufficient funds. Page 2 of 15 ace: A AP TS 4. The last two quarters of Unemployment Insurance for 2004 have not been paid. wn Payments for penalties and interest to the IRS are currently being made. 6. An interview with the administrator and owner’s representative on November 4 and 5", 2004 confirmed the above facts. 4. The administrator stated that payroll has been paid late nine times since June of 2004. In addition, he noted that there were several outstanding bills owed by the facility that had not been paid. 8. The Owner’s Representative confirmed that Worker’s Compensation Insurance had not been purchased for the facility from the facility’s inception. 9. In interviews with four employees of the facility, all agreed that payroll checks had been late on numerous occasions. 10. Observations on 11-4-04 revealed the facility lacked an adequate supply of food to provide ongoing nutritional meals. Interviews with the Administrator confirmed that food deliveries were on a cash on delivery (COD) basis due to inconsistent payment to vendors. The interview also revealed that frequent trips to the local supermarket are necessary to make up for the inadequate food supply. 11. Observations in the facility on the afternoon of 11-4-04 revealed that internal temperatures in the common areas of the facility were uncomfortably high. Temperature readings ranged from 81°F to 85°F. Interview with the Administrator revealed that this was due to lack of maintenance to the air conditioning units and the owner’s refusal to complete repairs because of insufficient funds. These practices place all residents in the facility at risk for harm and may lead to the residents not receiving needed services that the facility agreed to provide. 9. Respondent failed to maintain the facility on a sound financial basis, which threatens the residents’ health, safety and welfare, as required b y Section 400.4257, Florida Statutes, and Rule 58A-5.021(1), Florida Administrative Code, which provide, as follows: “400.4275 Business practice; personnel records; liability insurance.—The assisted living facility shall be administered on a sound financial basis consistent with good business practices. (1) The administrator or owner ofa that is facility shall maintain accurate business records that identify, summarize, and classify funds received and expenses disbursed and shall use written accounting procedures and a recognized accounting system. (2) The administrator or owner of a facility shall maintain personnel records for each staff member which contain, at a minimum, documentation of background screening, if applicable, documentation of compliance with all training requirements of this part or applicable rule, and a copy of all 1 icenses or certification held by each staff who performs services for which licensure or certification is required under this part or rule. (3) The administrator or owner of a facility shall maintain liability insurance coverage that is in force at all times. (4) The department may by rule clarify terms, establish requirements for financial records, accounting procedures, personnel procedures, insurance coverage, and reporting Page 3 of 15 procedures, and specify documentation as necessary to implement the requirements of this section.” “5gA-5.021 Fiscal Standards. (1) FINANCIAL STABILITY. The facility shall be administered on a sound financial basis in order to ensure adequate resources to meet resident needs. For the purposes of Section 400.447, F.S., evidence of financial instability includes filed bankruptcy by any owner; issuance of checks returned for insufficient funds; delinquent accounts; nonpayment of local, state, or federal taxes or fees; unpaid utility bills; tax or judgment liens against facility or owners property; failure to meet employee payroll; confirmed complaints to the agency or district long-term care ombudsman council regarding withholding of refunds or funds due residents; failure to maintain liability insurance due to non-payment of premiums; non-payment of rent or mortgage; non-payment for essential services; or adverse court action which could result in the closure or change in ownership or management of the ALF. When there is evidence of financial instability, the agency shall require the facility to submit the following documentation:” 10. The foregoing constitutes a Class II violation due to the nature of the violation and the gravity of its probable effect on the residents, to wit: “(b) Class "II" violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than class I violations. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. A fine shall be levied notwithstanding the correction of the violation.” § 400.419(2)(b), Fla. Stat. (2004) 11. On December 10, 2004, AHCA completed an Assisted Living Facility financial monitoring and follow-up visit at Respondent’s facility. AHCA cited Respondent for an uncorrected violation, based on the following: a) A review of the facility financial records on December 10, 2004, indicate: 1. No Worker’s Compensation Certificate exists for the facility. The facility has made no payments for the delinquent payments and no current certificate was available on the day of the survey. 2. A review of the Income/Expense statement reflects no lease or mortgage payments for the facility. 3. The last two quarters of Unemployment Insurance for 2004 have not been paid. There is no written certification of these payments as of December 10, 2004. 4. Payments for penalties and interest to the IRS are currently being made. However, this is continuing and has not been completed. 5. An interview with the administrator and owner’s representative on December 10, 2004 revealed that they have not completed all of the above payments. 6. The Owner’s Representative confirmed that Worker’s Compensation Insurance had not been purchased for the facility from the facility’s Page 4 of 15 inception. He noted that he was working with a leasing company, yet no certificate of Worker’s Compensation was available. 7. Observations in the facility on the morning of December 10, 2004, revealed a continuing problem with one of two HVAC units being inoperable, and one repaired internally that affects the resident common areas. These practices place all residents in the facility at risk for harm and may lead to the residents not receiving needed services that the facility agreed to provide. 8. The foregoing violation constitutes an uncorrected Class II violation pursuant to Section 400.419(2)(b), Florida Statutes (2004) (quoted above), due to the nature of the violation and the gravity of its effect on the residents, and warrants a fine of $2,000. 9. AHCA, in determining the penalty imposed, considered the gravity of the violation, the probability that death or serious harm will result, the uncorrected actions of Respondent and its staff, the financial benefit to the facility of committing or continuing the violation, and the licensed capacity of the facility. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count; 2. Impose a fine in the amount of $2,000 for the referenced violation; and 3. Impose such other relief as this tribunal may find appropriate. COUNT H(A 105) Respondent failed to hold funds received from residents in a separate trust fund and failed to allow access to those funds by the residents. § 400.419(2)(c), Fla. Stat. (2004) § 400.427(4), Fla. Stat. (2004) Fla. Admin. Code R. 58A-5.021(4)(a) (2004) 10. | AHCA re-alleges paragraphs 1-6 above. 11. On November 5, 2004, AHCA conducted an Assisted Living Facility financial monitoring visit at Respondent's facility. AHCA cited Respondent for a violation, based on the following: Page 5 of 15 a) 12. Resident #1 provided over $60,000 and Resident #3 provided over $30,000 on August 24, and April 21, 2004 respectively. These monies were provided based on addenda to the lease agreement where these advance payments would allow the residents to live at the facility, rent-free in perpetuity. The facility commingled these monies with the general operating funds. There is no record of a trust fund set up to account for the resident monies. This information was confirmed by the Owner’s Representative, during the interview on November 4, 2004. Operating without separate bank accounts has placed Resident #1 at risk for her continuing health care needs at other facilities. These lease addenda put any potential residents, as well as Residents #1 and #3 at risk for their future needs. The potential risk to Resident #1 is at such a level that a referral was made to the Department of Children and Families, Adult Protective Services for investigation of potential exploitative activity. Respondent failed to maintain the facility on a sound financial basis, which threatens the residents’ health, safety and welfare, as required by Section 400.427(4), Florida Statutes, and Rule 58A-5.021(4)(a), Florida Administrative Code, which provide, as follows: “400.427 Property and personal affairs of residents.—...(4) Any funds or other property belonging to or due to a resident, or expendable for his or her account, which is received by a facility shall be trust funds which shall be kept separate from the funds and property of the facility and other residents or shall be specifically credited to such resident. Such trust funds shall be used or otherwise expended only for the account of the resident. At least once every 3 months, unless upon order of a court of competent jurisdiction, the facility shall furnish the resident and his or her guardian, trustee, or conservator, if any, a complete and verified statement of all funds and other property to which this subsection applies, detailing the amount and items received, together with their sources and disposition. In any event, the facility shall furnish such statement annually and upon the discharge or transfer of a resident. Any governmental agency or private charitable agency contributing funds or other property to the account of a resident shall also be entitled to receive such statement annually and upon the discharge or transfer of the resident.” “S8A-5.021 Fiscal Standards....(4) RESIDENT TRUST FUNDS AND ADVANCED PAYMENTS. (a) Funds or other property received by the facility belonging to or due a resident, including the personal funds described in subsection G3), shall be held as trust funds and expended only for the resident’s account. Resident funds or property may be held in one bank account if a separate written accounting for each resident is maintained. A separate bank account is required for facility funds; co-mingling resident funds with facility funds is prohibited. Written accounting procedures for resident trust funds shall include income and expense records of the trust fund, including the source and disposition of the funds.” 13. The foregoing violation constitutes a Class III violation due to the nature of the violation and the gravity of its probable effect on the residents, to wit: Page 6 of 15 “(c) Class III violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class II violations. A class Til violation is subject to an administrative fine of not less than $500 and not exceeding $1,000 for each violation...” § 400.419(2)(c), Fla. Stat. (2004) 14. On December 10, 2004, AHCA completed an Assisted Living Facility financial monitoring and follow-up visit at Respondent’s facility. AHCA cited Respondent for an uncorrected violation, based on the following: a) Resident #1 provided over $60,000 and Resident #3 provided over $30,000 on August 24, and April 21, 2004 respectively. These monies were provided based on addenda to the lease agreement where these advance payments would allow the residents to live at the facility, rent-free in perpetuity. The facility commingled these monies with the general operating funds. There is no record of a trust fund set up to account for the resident monies. The Owner’s Representative confirmed this information, during the interview on November 4, 2004. In the interview on December 10, 2004 with the Owner’s Representative, it was noted that a new account had been opened by the facility, but none of the resident funds had been transferred from the Operating Account. Operating without separate bank accounts has placed Resident #1 at risk for her continuing health care needs at other facilities. These lease addenda put any potential residents, as well as Residents #1 and #3 at risk for their future needs. The potential risk to Resident #1 is at such a level that a referral was made to the Department of Children and Families, Adult Protective Services for investigation of potential exploitative activity. As of December 10, 2004, no resident funds have been transferred to a separate account and no clear refund for Resident #3 could be determined. 15. The foregoing violation constitutes an uncorrected Class III violation pursuant to Section 400.419(2)(c), Florida Statutes (2004) (quoted above), due to the nature of the violation and the gravity of its effect on the residents, and warrants a fine of $500. 16. | AHCA, in determining the penalty imposed, considered the gravity of the violation, the probability that death or serious harm will result, the uncorrected actions of Respondent and its staff, the financial benefit to the facility of committing or continuing the violation, and the licensed capacity of the facility. Page 7 of 15 WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count, 2. Impose a fine in the amount of $500 for the referenced violation; and 3. Impose such other relief as this tribunal may find appropriate. COUNT II (A 1004) Respondent failed to ensure that all appliances, including HVAC units, were functional and in good working order. § 400.419(2)(c), Fla. Stat. (2004) Fla. Admin. Code R. 58A-5.023(1)(b) (2004) 17. AHCA re-alleges paragraphs 1-6 above. 18. On November 5, 2004, AHCA conducted an Assisted Living Facility financial monitoring visit at Respondent’s facility. AHCA cited Respondent for a violation, based on the following: a) During a tour of the facility, it was noted that the temperature in the general area of the nurse’s station and activity room was 81 degrees and the temperature in the main dining area was 85 degrees. b) In an interview with the administrator, he stated that he had repeatedly asked to have the AC units repaired and the owner’s representative refused based on lack of funds. c) Tour of the food storage areas revealed a walk-in freezer that was not operational; therefore, reducing the storage capacity for food needed for residents. The nonfunctional units pose a potential health risk to the residents. 19. Respondent failed to ensure that all appliances, including HVAC units, were functional and in good working order, as required by Rule 58A-5.023(1)(b), F lorida Administrative Code (2004), which provides, as follows: “58A-5.023 Physical Plant Standards. (1) GENERAL REQUIREMENTS ....(b) The facility’s physical structure, including the interior and exterior walls, floors, roof and ceilings shall be structurally sound and in good repair. Peeling paint or wallpaper, missing ceiling or floor tiles, or torn carpeting shall be repaired or replaced. Windows, doors, plumbing, and appliances shall be functional and in good working order. All furniture and furnishings shall be clean, functional. free-of-odors, Page 8 of 15 and in good repair. Appliances may be disabled for safety reasons provided they are functionally available when needed.” 20. The foregoing violation constitutes a Class III violation pursuant to Section 400.419(2)(c), Florida Statutes (2004) (quoted above), due to the nature of the violation and the gravity of its probable effect on the residents. 21. On December 10, 2004, AHCA completed an Assisted Living Facility financial monitoring and follow-up visit at Respondent’s facility. AHCA cited Respondent for an uncorrected violation, based on the following: a) Observations on 12-10-04 revealed that one HVAC unit providing heat and air to the nurses station area, the activity room, and a day room is not operational and still non-functioning as previously noted in the November 5, 2004 citation. This was confirmed by the owner’s representative during an interview. The nonfunctional unit poses a potential health risk to the residents. 22. The foregoing violation constitutes an uncorrected Class III violation pursuant to Section 400.419(2)(c), Florida Statutes (2004) (quoted above), due to the nature of the violation and the gravity of its effect on the residents, and warrants a fine of $500. 23. | AHCA, in determining the penalty imposed, considered the gravity of the violation, the probability that death or serious harm will result, the uncorrected actions of Respondent and its staff, the financial benefit to the facility of committing or continuing the violation, and the licensed capacity of the facility. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count; 2. Impose a fine in the amount of $500 for the referenced violation; and 3. Impose such other relief as this tribunal may find appropriate. Page 9 of 15 COUNT IV Respondent failed to provide a refund within 45 days of discharge or death of a resident. — § 400.424(3)(a), Fla. Stat. (2004) 24, AHCA re-alleges paragraphs 1-6 above. 25. On November 5, 2004, AHCA conducted an Assisted Living Facility financial monitoring visit at Respondent’s facility. AHCA cited Respondent for a violation, based on the following: a) Resident record review revealed that Resident #3 died in August, 2004. The resident was formally discharged on September 1, 2004. The facility agreed that the facility has $19,800 that needs to be refunded to the appropriate people. The 45th day was on October 16, 2004. b) No refund has been made based on resident and facility financial information. c) This information was confirmed in an interview with the Owner’ Representative. The failure to provide refunds as required, places the potential for harm to the family of the resident or the next of kin. 26. Respondent failed to provide a refund within 45 days of discharge or death of a resident, as required by Section 400.424(3)(a), Florida Statutes (2004), which provides, as follows: “400.424 Contracts.—...(3)(a) The contract shali include a refund policy to be implemented at the time of a resident's transfer, discharge, or death. The refund policy shall provide that the resident or responsible party is entitled to a prorated refund based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee. For the purpose of this paragraph, the termination date shall be the date the unit is vacated by the resident and cleared of all personal belongings. If the amount of belongings does not preclude renting the unit, the facility may clear the unit and charge the resident or his or her estate for moving and storing the items at a rate equal to the actual cost to the facility, not to exceed 20 percent of the regular rate for the unit, provided that 14 days' advance written notification is given. If the resident's possessions are not claimed within 45 days after notification, the facility may dispose of them. The contract shall also specify any other conditions under which claims will be made against the refund due the resident. Except in the case of death or a discharge due to medical reasons, the refunds shall be computed in accordance with the notice of relocation requirements specified in the contract. However, a resident may not be required to provide the licensee with more than 30 days' notice of termination. If after a contract is terminated, the facility intends to make a claim Page 10 of 15 against a refund due the resident, the facility shall notify the resident or responsible party in writing of the claim and shall provide said party with a reasonable time period of no less than 14 calendar days to respond. The facility shall provide a refund to the resident or responsible party within 45 days after the transfer, discharge, or death of the resident. The agency shall impose a fine upon a facility that fails to comply with the refund provisions of the paragraph, which fine shall be equal to three times the amount due to the resident. One-half of the fine shall be remitted to the resident or his or her estate, and the other half to the Health Care Trust Fund to be used for the purpose specified in s. 400.418.” [Emphasis added] 27. On December 10, 2004, AHCA completed an Assisted Living Facility financial monitoring and follow-up visit at Respondent’s facility. AHCA cited Respondent for an uncorrected violation, based on the following: a) Resident record review revealed that Resident #3 died in August 2004. The resident was formally discharged on September 1, 2004. The facility agreed that the facility has $19,800 that needs to be refunded to the appropriate people. The 45th day was on October 16, 2004. No refund has been made for Resident #3. A check was written to the Children’s Miracle Network, the beneficiary of Resident #3’s will, but there was no confirmation that the money has been transferred as of December 10, 2004. b) Resident record review of one closed record for Resident #4 and an interview with the administrator, noted that Resident #4 was discharged on September 20, 2004. A refund was due on November 5, 2004, but has not been paid as of December 10, 2004. The amount of the refund that is due is $1,825.00. c) This information was confirmed in an interview with the Owner’ Representative. The failure to provide refunds as required, places the potential for harm to the family of the resident or the next of kin. 28. Respondent’s failure to refund Resident # 4’s money within 45 days of his discharge warrants the imposition of a fine equaling three times the amounts due the residents, which is $5,475. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this count; 2. Impose a fine in the amount of $5,475, which is three times the refund due, pursuant to Section 400.424(3)(a), Florida Statutes (2004), which shall be divided one half to the estate of resident #4, and one-half to the Health Care Trust Fund; and Page 11 of 15 3. Impose such other relief as this tribunal may find appropriate. NOTICE Respondent, MAGNOLIA LTC INC., d/b/a MAGNOLIA MANOR, is note De Os Key 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 Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, 2727 Mahan Dr., Bldg. 3, MSC 3, Tallahassee, Florida, 32308; Attention: Agency Clerk. RESPONDENT IS FURTHER NOTIFIED, IF THE REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED. Submitted on this A 3rd day of ro a os 2005, Trg — fp. Cent Timo IB. Evfiott, Senior Attomey Fla. Bar No. 210536 Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, MSC #3 Tallahassee, FL 32308 Phone: (850) 922-5873 Fax: (850) 921-0158 or 413-9313 Page 12 of 15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original Administrative Complaint, Explanation of Rights form, and Election of Rights forms have been sent by U.S. Certified Mail, Return Receipt Requested (receipt# 7004 1160 0003 3739 7517) to Magnolia Manor, Attention: Administrator, 3339 Highway 17, Green Cove Springs, Florida 32043. Submitted on this .23 rel day of Felner. 2005. ~ Ch. Timothy B- Elliott, Senior Attorney Agency for Health Care Administration Page 13 of 15

Docket for Case No: 05-001926