STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, _ Petitioner, D \ my QO | “ vs. AHCA NO: 2005003036 2005002256 BENEVA LAKES HEALTH CARE ASSOCIATES, LLC d/b/a BENEVA LAKES HEALTHCARE AND REHABILITATION CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA”), by and through its undersigned counsel, and files this Administrative Complaint against BENEVA LAKES HEALTH CARE ASSOCIATES, LLC d/b/a BENEVA LAKES HEALTHCARE AND REHABILITATION CENTER (hereinafter “Respondent” or “Beneva”), pursuant to Section 120.569, and 120.57, Florida Statutes (2004), and alleges: NATURE OF THE ACTION 1. This is an action to assign a conditional license to Respondent, pursuant to Section 400.23(7)(b), Florida Statutes (2004), and to assess an administrative fine in the amount of two thousand dollars ($2000.00) pursuant to Section 400.23(8)(c), Florida Statutes (2004). A copy of the original conditional license is attached hereto as Exhibit “A” and incorporated herein by reference. A copy of the conditional renewal license is attached hereto as Exhibit “B” and incorporated herein by reference. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2004). 3. AHCA has jurisdiction pursuant to Chapter 400, Part II, Florida Statutes (2004). 4. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code (2004). 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 II, Florida Statutes (2004), and Chapter 59A-4, Florida Administrative Code (2004). . 6. Beneva Lakes Health Care Associates, LLC d/b/a Beneva Lakes Healthcare and Rehabilitation Center, is a Florida limited liability company with a principal and physical address of 741 S. Beneva Road, Sarasota, FL 34232. 7. Beneva is a 120-bed skilled nursing facility and is licensed by AHCA as a skilled nursing facility having been issued license number SNF 1049096, certificate number 12402, with an effective date of February 24, 2005 and an expiration date of February 28, 2005. A renewal license, with the same license number and certificate number 12403, was issued with an effective date of March 1, 2005, and an expiration date of February 28, 2006. These certificates are for conditional licensure. 8. Respondent is and was at all times material hereto a licensed skilled nursing facility required to comply with Chapter 400, Part II, Florida Statutes and Chapter S9A-4, Florida Administrative Code. COUNT I THE FACILITY FAILED TO PROVIDE ITS RESIDENTS WITH A WELL-BALANCED DIET THAT MET THE DAILY NUTRITIONAL AND SPECIAL DIETARY NEEDS OF EACH RESIDENT, in violation of Rule 59A-4.1288, Florida Administrative Code (2004), incorporating by reference, 42 Code of Federal Regulation 483.35 : CLASS If DEFICIENCY 9. AHCA re-alleges and incorporates by reference paragraphs one (1) through eight (8) above as if fully set forth herein. 10. 42 Code of Federal Regulation 483.35 provides: Dietary services. The facility must provide each resident with a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each resident. (a) Staffing. The facility must employ a qualified dietitian either full-time, part-time, or on a consultant basis. (1) If a qualified dietitian is not employed full-time, the facility must designate a person to serve as the director of food service who receives frequently scheduled consultation from a qualified dietitian. (2) A qualified dietitian is one who is qualified based upon either registration by the Commission on Dietetic Registration of the American Dietetic Association, or on the basis of education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs. (b) Sufficient staff. The facility must employ sufficient support personnel competent to carry out the functions of the dietary service. (c) Menus and nutritional adequacy. Menus must-- (1) Meet the nutritional needs of residents in accordance with the recommended dietary allowances of the Food and Nutrition Board of the National Research Council, National Academy of Sciences; (2) Be prepared in advance; and (3) Be followed. (d) Food. Each resident receives and the facility provides-- (1) Food prepared by methods that conserve nutritive value, flavor, and appearance; (2) Food that is palatable, attractive, and at the proper temperature; (3) Food prepared in a form designed to meet individual needs; and (4) Substitutes offered of similar nutritive value to residents who refuse food served. (e) Therapeutic diets. Therapeutic diets must be prescribed by the attending physician. (f) Frequency of meals. (1) Each resident receives and the facility provides at least three meals daily, at regular times comparable to normal mealtimes in the community. (2) There must be no more than 14 hours between a substantial evening meal and breakfast the following day, except as provided in (4) below. (3) The facility must offer snacks at bedtime daily. (4) When a nourishing snack is provided at bedtime, up to 16 hours may elapse between a substantial evening meal and breakfast the following day if a resident group agrees to this meal span, and a nourishing snack is served. (g) Assistive devices. The facility must provide special eating equipment and utensils for residents who need them. (h) Paid feeding assistants--(1) State-approved training course. A facility may use a paid feeding assistant, as defined in Sec. 488.301 of this chapter, if-- (i) The feeding assistant has successfully completed a State- approved training course that meets the requirements of Sec. 483.160 before feeding residents; and (ii) The use of feeding assistants is consistent with State law. (2) Supervision. (i) A feeding assistant raust work under the supervision of a registered nurse (RN) or licensed practical nurse (LPN). (ii) In an emergency, a feeding assistant must call a supervisory nurse for help on the resident call system. (3) Resident selection criteria. (i) A facility must ensure that a feeding assistant feeds only residents who have no complicated feeding problems. (ii) Complicated feeding problems include, but are not limited to, difficulty swallowing, recurrent lung aspirations, and tube or parenteral/IV feedings. (iii) The facility must base resident selection on the charge nurse's assessment and the resident's latest assessment and plan of care. (i) Sanitary conditions. The facility must-- (1) Procure food from sources approved or considered satisfactory by Federal, State, or local authorities; (2) Store, prepare, distribute, and serve food under sanitary conditions; and (3) Dispose of garbage and refuse properly. (emphasis added) 11. | Respondent was in violation of the above provision. During a follow-up survey conducted on or about February 21-24, 2005, the following was observed: Based on observations of the lunch meal tray lines, review of the facility's approved menu and interviews with the dietary staff, the facility failed to follow the menu for 3 (Resident #4, #8 and #13) of 21 active sampled residents and 4 (Resident #29, #37, #43 and #44) random sampled residents, whose meal trays were observed and all residents in the facility who received the incorrect breakfast food items on 2/21/05, the incorrect portion serving of pork chops on 2/22/05, and the incorrect serving size of chicken on 2/23/05. This has the potential to affect the nutritional intake of all residents in the facility receiving an oral diet. The findings include: 1. During a tour of the facility on 2/21/05 between 9:40 a.m. and 10:30 a.m., the residents were complaining about the breakfast the facility served that morning. The residents stated they received french fries, a piece of sausage and a slice of white toast. The residents asked the surveyors, "Just what kind of breakfast is that? Would you want cold french fries for breakfast?" Review of the approved Cycle I, Week 4, Day 2, Monday menu for breakfast on 2/21/05, revealed the residents should have been served a sausage biscuit with home fries (potatoes). Interview with the Certified Dietary Manager (CDM) on 2/22/05 at approximately 1:00 p.m., concerning the breakfast served on 2/21/05, revealed the cook on the morning of 2/21/05 did not have breakfast prepped. She stated the cook told her the facility did not have home fries and there were no biscuits. She stated the cook replaced french fries for the home fries potatoes and replaced the sausage biscuit with a piece of sausage and a piece of white toast. The CDM further stated she had received numerous complaints about the breakfast that was served. Further interview with the CDM on 2/24/05 at approximately 9:30 a.m., revealed that when she arrived in the kitchen for breakfast on 2/21/05, she noticed that the home fries were not on the tray line. She stated she asked the cook where they were and he replied that he could not find any in the freezer so he had prepared the french fries. The CDM stated that since she did not want to hold the breakfast meal up any longer, she had agreed to send the french fries to the residents, but she knew they would be upset. She further stated, "I went out and apologized for serving them.” The CDM further stated that Monday morning is always a mess in the kitchen because the cook never looks at the menu the day before, to check on the food items that are needed to be prepared for the next morning's breakfast meal. 2. Observation of lunch on 2/22/05 at approximately 12:35 p.m., revealed residents received a pork chop with a bone. The pork chop was sliced paper-thin. Some residents received one pork chop and some received two. The pork chops appeared to vary in size and the amount of bone on the chop appeared to vary. On 2/22/05 at approximately 12:45 p.m., the cook was asked to weigh a pork chop without the bone. One chop the cook weighed was one and a half ounces; a second chop weighed 2 ounces. The cook stated, " I ordered boneless chops that did not come in." He stated the weight of the pork chops was supposed to be 4 ounces before cooking. He further stated he did not know that only the meat had to weigh 3 ounces. Review of the approved Cycle 1, Week 4, Day 3, and Tuesday lunch menu revealed that the residents were to be served 3 ounces of pork cutlet supreme. Interview with the regional Food Service Director, who is the acting Food Service Director in the facility, on 2/23/05 at approximately 10:15 a.m., revealed that the recipe calls for a 4 ounce "pork chopette”, but the vendor sent the wrong item and sent 4 ounce pork chops instead with a bone. Review of the invoice revealed that the pork cutlet was "short shipped" and replaced with "4 ounce center cut pork chop." Further interview with the Food Service Director revealed that there were not any pork chops left in the freezer to verify the portion size that was sent to the facility. 3. During the observation of the lunch meal tray line on 2/23/05 from 11:38 a.m. to 1:10 p.m., the cooks were observed serving varying size pieces of oven fried chicken. The residents were either served a large chicken breast, 1 chicken thigh, 1 small chicken leg and 1 chicken wing, 2 small chicken legs or 3 small chicken legs. None of the pieces of chicken were a uniform size to serve a standardized 3-ounce portion as stated on the menu and the residents were served from 2 to 6 ounces of chicken. Review of the oven fried chicken recipe revealed that the staff should have prepared the chicken using a 5-ounce boneless chicken thigh so that a standardized portion could be served to all residents. 4. During the observation of the lunch meal tray line on 2/23/05 from approximately 12:15 p.m. to 1:10 p.m., the following residents did not receive food items listed on their meal tickets because the dietary staff had not prepared the items prior to the start of the tray line: - Resident #13 had a food preference for pudding. Per the dietary aide, pudding was not made prior to the meal and there was none prepared to put on the resident's lunch tray. - Resident #29 was prescribed enhanced foods with 16 ounces of whole milk. The staff served 8 ounces of milk. - Resident #43 had a request on the meal ticket for gravy on the meat. The staff served the chicken plain without gravy. -Resident #8 had a special meal request for salad with Italian Dressing. The staff served honey french dressing. - Resident #44 had meal preferences listed for sliced tomatoes and yogurt. The resident was not served these items. . - Resident #4 had a meal preference for mayonnaise. The resident was not served mayonnaise with his meal. - Resident #37 had 4 ounces of sugar free punch listed as a meal preference. The staff stated that they had not made any punch for the meal and didn't think that there was any in the kitchen. The resident was served iced tea. Further observations during the meal from noon to 1:10 p.m. on 2/23/05, revealed that when the first tray of fresh fruit was used up on the tray line the dietary aide started putting Jell-O with whipped topping on the trays. The CDM was questioned by the surveyor regarding the substitute. When the CDM asked the aide why she was serving Jell-O, the aide replied that they had run out of fruit. The CDM instructed another dietary aide to remove a sheet pan of fruit from the reach in cooler behind the line and put it.on the rack so the staff could resume serving the correct menu item. The constant stopping of the tray line to prepare missing items or prepare more menu items for which there was an incorrect count slowed down the tray line process. The last cart was scheduled to leave the kitchen at 12:25 p.m., but the tray line did not end until 1:10 p.m. Interview with the Food Service Director on 2/24/05 at approximately 10:30 a.m., revealed that one of the dietary aides had walked off the job prior to the lunch meal on 2/23/05. He confirmed that none of the other aides had been assigned the task of preparing the special request meal items for the Junch meal. 5. Interview with the CDM on 2/23/05 at approximately 12:30 p.m. and 2/24/05 at approximately 9:30 a.m., revealed that she had gone through the residents’meal tickets again following the complaint investigation survey on 1/10/05 and made a list of special request items that needed to be prepared for each meal. Review of the 2/23/05 lunch tray line item sheet revealed that the staff was supposed to prepare numerous special items including 4 small salads with 5 dressings, 5 puddings, 3 mayonnaise packets and 3 yogurts. The list did not include the sugar free punch, sliced tomatoes and specific salad dressings that the residents requested. The CDM further stated that she leaves this list in the kitchen and expects the diet aides to have the items ready at the start of the tray line, but has to remind them daily to complete this task. 12. This was cited as a class III deficiency, which is defined as follows: A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class IJ deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A citation for a class II deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, no civil penalty shall be imposed. Section 400.23(8)(c), Florida Statutes (2004). 13. This was an uncorrected class III deficiency as the original complaint survey conducted on or about January 10, 2005 found: Based on observation of the lunch meal tray line, review of the facility's approved menu and interview with the dietary staff the facility failed to follow the menu for 13 (Resident #1 through #13) of 114 residents whose meal trays were observed and all residents prescribed pureed diets and reduced concentrated sweets diets, including Resident #1, #2 and #3 who did not receive the renal diet per the menu; Resident #4 who did not get fortified food as listed on the tray ticket; Resident #5, #6 and #8 who did not receive a vegetable selection; Resident #7, #8, #10 and #11 who did not receive sugar free and diet items listed on their tray tickets; Resident # 9 who was served a regular diet instead of the prescribed pureed diet and Resident #12 and #13 who did not receive a pureed vegetable as listed on the menu. This has the potential to affect the nutritional intake of these residents. The findings include: 1. Observation of the lunch tray line on 1/10/05 from 11:45 AM to 1:05 PM revealed that the dietary staff did not serve the correct portion size of the pureed turkey. Review of the Cycle 1, Week 2, Day 2, Monday approved menu revealed that the pureed turkey serving was a #10 scoop (2/5 cup). The staff used a #12 scoop (1/3 cup) to serve all of the residents on pureed diets. The menu also listed a #30 (1 ounce) scoop for the pureed bread. The staff used a #20 scoop, then a #40 scoop to serve the pureed bread. A #30 scoop was not found and used to serve the pureed bread until the surveyor questioned the portion size being served. 2. Review of the Reduced Concentrated Sweets (RCS) diet extension revealed that the residents were to be served diet pudding. Observation of the cold food cart on 1/10/05 at 11:45 AM revealed that there was no diet pudding to serve to the residents. Interview with the dietary aide on 1/10/05 at 11:45 AM revealed that the diet pudding had not been prepared for the meal. The Certified Dietary Manager (CDM) instructed the staff to serve diet ice cream to the RCS diets instead because there was no time to make the pudding and bring it to an appropriate temperature prior to the start of the meal service. 3. Review of the Renal diet extensions revealed that the residents on renal diets were to be served rice, white bread and vanilla pudding. Review of the resident diet listing revealed that Resident #1, #2 and #3 were prescribed renal diets. The staff did not have rice on the line to serve to these residents. They were served egg noodles instead. There was no white bread prepared for the tray line and the staff served rolls to Resident #1 and #2. Observation of the cold food cart revealed that there was no vanilla pudding. The staff stated that they had prepared rice pudding for the renal diets. Resident #3 who was prescribed a 60 gram protein, 2 gram sodium diet had a dislike for broccoli listed on her meal ticket. The staff had not made an alternate vegetable. The resident was served applesauce instead. 4. Review of Resident #4's tray ticket revealed that she was prescribed super foods with super potatoes listed on the tray ticket. The staff served the resident regular mashed potatoes. Interview with the cook, who prepared the food for the meal at 12:05 PM, revealed that he had made super potatoes and that they were on the steam table. This was not communicated to the staff person serving the tray line. The super mashed potatoes were not substituted for the regular mashed potatoes on Resident #4's meal tray. 5. Resident #5 who was on a pureed, RCS, nectar thick diet had a dislike for broccoli listed on the tray ticket. The cook had not prepared an alternate pureed vegetable for the meal. The resident was served applesauce instead of another vegetable. 6. Resident #6 who was on a Mechanical Soft, No Added Salt (NAS), RCS diet had a dislike for broccoli on the tray ticket. The cook had not prepared an alternate vegetable for the meal. The CDM told the staff to give the resident tomato juice. The dietary aide replied that they did not have any tomato juice to serve to the resident. 7. Resident #7 who was on a RCS, NAS diet had salad with diet dressing listed on the tray ticket. The dietary staff informed the CDM that they did not have any diet salad dressings to serve to the residents on RCS diets. The CDM served the resident a buttermilk ranch dressing that contained com syrup solids. 8. Resident #8 was prescribed a 1500 calorie, RCS, NAS diet. Her tray ticket listed a dislike for broccoli and a special request for sugar free punch. The cook had not made an alternate vegetable for the meal. The CDM served the resident applesauce. The dietary aide also told the CDM that she had not prepared any sugar free punch for the tray line. The resident was served iced tea. 9. At approximately 12:45 PM, Resident #9’s spouse entered the kitchen with the resident's lunch meal tray. The spouse was angry regarding the incorrect tray that the resident received. The spouse stated that the resident was supposed to receive a pureed diet. He further stated, "What's the matter can't you people read!" Observation of the tray revealed that the resident was served a regular diet. Review of the tray ticket noted that the resident was on a pureed diet. 10. Resident #10 was prescribed a RCS, NAS diet. Review of the resident's tray ticket revealed a special request for sugar free punch. The staff had not made any sugar free punch for the tray line. The resident was served diet ginger ale. 11. Resident #11 was prescribed a RCS, NAS diet. The resident's tray ticket listed a preference for salad with diet dressing. The resident was served a regular buttermilk ranch salad dressing that contained corn syrup solids. The CDM stated that there was no diet dressing in the kitchen and this was the only substitute she could offer the resident. 12. At approximately 12:55 PM, the staff used the last of the pureed broccoli. There was no alternate pureed vegetable prepared for the meal and no additional pureed broccoli. The staff did not serve Resident #12 a vegetable selection. Review of the resident's tray ticket revealed a special request for 3 ounces pureed prunes. Interview with the dietary aide at this time revealed that they were not prepared for the meal. 13, Resident #13 was prescribed a pureed diet. The staff did not serve the resident any pureed vegetable because they had run out of it towards the end of the tray line. 14. Interview with the CDM on 1/10/05 at 1:05 PM revealed that she had gone through the residents' meal tickets and made a list of special request items a few weeks ago and provided it to the former Food Service Director so that the food items could be prepared prior to the meal service. She stated that she did not know where the list had gone and she confirmed that the kitchen was not using a food production sheet to tabulate the special request items prior to the meal. The CDM further confirmed that an alternate vegetable should have been prepared for the meal as well as sufficient quantities of the food items listed on the menu for the meal. 14. Respondent was given a correction date of February 10, 2005 which it did not meet as evidenced by paragraph 11 above. 15. 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 persuasive throughout the facility. Section 400.23(8), Florida Statutes (2004). As this was a patterned uncorrected class III deficiency, a fine of two thousand dollars ($2000.00) is appropriate under Section 400.23(8)(c), Florida Statutes (2004). 16. The deficiency also supports conditional licensure status as defined in Section 400.23(7)(b), Florida Statutes (2004), which reads as follows: A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III 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 tules adopted by the agency. If the facility has no class I, class Ii, or class Ii] deficiencies at the time of the followup survey, a standard licensure status may be assigned. 10 CLAIM FOR RELIEF WHEREFORE, the Agency respectfully requests the following relief: 1) Make actual and legal findings in favor of AHCA on Count J; 2) Uphold the ‘issuance of the conditional license with an effective date of February 24, 2005 and the renewal conditional license with an effective date of March 1, 2005, copies of which are attached hereto as Exhibits “A” and “B”; and 3) Assess an administrative fine against Respondent in the amount of two thousand dollars ($2000.00) pursuant to Section 400.23(8)(c), Florida Statutes (2004). DISPLAY OF LICENSE Pursuant to Section 400.23(7)(e), Florida Statutes (2004), Beneva 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 Beneva hereby 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 and explained in the attached Explanation of Rights. 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. i Respectfully submitted on ihigAf day of April, 2005. dunsel for Petitioner Agency for Health Care Administration 2295 Victoria Ave. Room 346C Fort Myers, FL 33901-3884 (239) 338-3203 (office) (239) 338-2372 (fax) CERTIFICATE OF SERVICE I HEREBY CERTIFY that an original Administrative Complaint and Exhibit “A” has been sent by U.S. Certified Mail Return Receipt Requested (return receipt # 7004 1160 0002 9081 1075) to Christopher Tetrault, Administrator, Beneva Lakes Health Care Associates, LLC d/b/a Beneva Lakes Healthcare and Rehabilitation Center, 741 S. Beneva Road, Sarasota, FL 34232, and by U.S. Certified Mail Return Receipt Requested (return receipt # 7004 1160 0002 9081 1082) to Beneva Lakes Health Care Associates, LLC d/b/a Beneva Lakes Healthcare and Rehabilitation Center, 10210 Highland Manor Drive, Suite 250, Tampa, FL 33610 thigdlp day of April 2005. en pr FOWLER, ESQUIRE COPY TO: Elizabeth Dudek Deputy Secretary Managed Care and Health Quality Assurance Agency for Health Care Administration 2727 Mahan Drive, M.S. #9 Tallahassee, Florida 32308 (via interoffice mail) 12

Docket for Case No: 05-002019