STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, . AHCA Nos.: 2005005629 Petitioner, 2005005631 v. Return Receipt Requested: 7002 2410 0001 4234 5377 SENIOR LIVING/LAKE MARY, LLC, 7002 2410 0001 4234 5384 d/b/a GABLES OF LAKE MARY, THE, 7002 2410 0001 4234 5391 Respondent. , QO S- Q l au ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this administrative complaint against Senior Living/Lake Mary, LLC, d/b/a The Gables of Lake Mary (hereinafter “The Gables of Lake Mary”), pursuant to Chapter 400, Part III and Section 120.60, Florida Statutes, (2004), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $45,000.00 pursuant to Sections 400.414 and 400.419(2) (b), Florida Statutes, following the Moratorium imposed on June 17, 2005 (AHCA#2005004291), for the protection of the public health, safety and welfare and a $500.00 survey fee pursuant to Section 400.419(10), and 400.428(3) (c), Florida Statutes. JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57 Florida Statutes, Chapter 28-106, Florida Administrative Code. 3. Venue lies in Seminole County pursuant to Section 120.57 Florida Statutes, Rule 28-106.207, Florida Administrative Code. PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules geverning assisted living facilities pursuant to Chapter 400, Part III, Florida Statutes (2004) and Chapter 58A-5 Florida Administrative Code. 5. The Gables of Lake Mary operates a 102-bed assisted living facility located at 3655 W. Lake Mary Boulevard, Lake Mary, Florida 32746. The Gables of Lake Mary is licensed as an assisted living facility under license number 10007. The Gables of Lake Mary was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I THE GABLES OF LAKE MARY FAILED TO COMPLY WITH THE RESIDENT’S BILL OF RIGHTS IN REGARD TO PHYSICAL ABUSE AND PRIVACY Section 400.428(1), Florida Statutes CLASS I VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Based on observation, interview and reccrd review, the facility failed to ensure that one sampled resident who died on 6/9/05 (#3) in a sample of 11 was protected from physical abuse (hitting and isolation) and that the privacy rights of all residents in the facility receiving care and services from nursing staff were protected. 8. Record review of the chart of resident #3 revealed the resident lived on the Alzheimer's locked unit and nad a diagnosis of Alzheimer's disease. An interview with a local law enforcement officer at 11 AM on 6/15/05 revealed that four facility employees had been interviewed recently by law enforcement about resident #3 being hit with a pillow in the upper body region by staff member #1. The interview revealed that employee #1 was suspended for 3 days by the facility following the incident. 9. Record review at approximately 2:39 PM on 6/15/05 of the personnel chart of staff member #1 revealed no record of the incident involving resident #3 being struck by a pillow. 10. Interview with the administrator at 5:15 PM on 6/15/05 in his/her office revealed the administrator was aware of the incident with the pillow between staff member #1 and resident #3. The administrator stated that a staff member had reported that staff member #1 was taking resident #3 back to his/her room after a meal when the resident began crying out in a loud tone of voice. The staff member stated resident #3 was struck in the upper part of the body with a pillow by staff member #1 in an attempt to quiet the resident. The administrator stated that staff member #1 was suspended from work for 3 days. The Director of Nursing (DON) was made aware of the incident. The administrator stated staff member #1 denied the incident occurred after he/she was confronted by the administrator. The staff member who witnessed the incident decided not tc report the incident to the abuse hotline. The administrator and the DON also decided not to report the incident to the abuse hotline. The administrator could produce no documentation that the facility had investigated the incident. The administrator would not give the name of the staff member making the allegation of the pillow incident. Staff member #1 continued to be employed at the facility, and was observed working on the Alzheimer's unit throughout the 2 days of the survey. 11. An interview with staff member #9 took place at 6:30 PM on 6/16/05 by telephone. The staff member stated that staff frequently put resident #3 in his/her room alone and closed the door when the resident was agitated and yelling out. Staff member #9 also stated; that "things had changed since the present DON was hired." The DON was indifferent to residents. In one case, a resident was observed to cry because the DON repeatedly refused to change the resident's dressing-- kept putting the resident off until the resident became so frustrated he/she began to cry. Staff member #9 also stated that another resident had very frail skin. A CNA assigned to care for the resident did not take care in transferring the resident out of bed. The CNA pulled the resident out of bed by the arms, causing skin tears to the forearms of the resident. 12. Observation of the second floor nurses’! station at 12:45 PM on 6/15/05 revealed the nurse practitioner on duty with another facility staff person. A resident seated in a wheelchair was observed receiving treatment to the lower body area at this time. A small baby identified as belonging to the nurse practitioner was observed in the exam room behind the nurses' station. The nurses' station was observed to be lecated across from an elevator in which people were observed to be entering and exiting the elevator. Confidential interview with a second floor resident at 3:15 PM on 6/15/05 revealed the resident believed his/her privacy was not being protected. The resident stated that when the nurse practitioner visited the facility once a week, the nurse practitioner would not visit individual residents' rooms. Residents had to go to the nurses' station for treatment as the nurse practitioner had a baby and did not want to leave the nurses' station. The resident stated that private health issues had to be discussed at the nurses' station within earshot of other residents and staff members. The interviewee believed that his/her private health concerns were being discussed openiy and these health concerns provided sources of gossip for staff members and residents. 13. Based on the foregoing, The Gables of Lake Mary violated Chapter 400.428(1), Florida Statutes (2004), herein classified as a Class I violation, which warrants an assessed fine of $5,000.00. COUNT IT THE GABLES OF LAKE MARY FAILED TO ENSURE THAT NO MEDICAL OR OTHER ASSISTED LIVING FACILITY RECORD HAS BEEN FRAUDULENTLY ALTERED, DEFACED, OR FALSIFIED Section 400.449(1), Florida Statutes CLASS II VIOLATION 14. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 15. During the complaint investigation conducted on 6/14 through 6/23/05 and based on record review and interviews the facility failed to ensure that no medical or other assisted living facility record has been fraudulently altered, defaced, or falsified. 16. The June 2005 bowel movement (BM) record for resident #3 was not available for review during the complaint investigation on 6/15/05 and 6/16/05. The administrator stated on 6/15/05 at approximately 5 PM that s/he was sure s/ne had seen it, but with so many people looking in the chart it might have been misplaced and blamed law enforcement officer (who took chart out of the facility) for the missing record. 17. The Lake Mary law enforcement officer stated on 6/16/05 at approximately 11 AM that upon review of resident #2's record the June BM record was not available. 18. On 6/15/05 at approximately 1 PM the Adult Protective Services investigator stated that during her/his review, the June BM record for resident #3 was not available. 19. On 6/16/05 at approximately 4 PM a faxed June BM record was received. The record documented that resident #3 had a small bowel movement on 6/1, 6/3 and 6/5 and an extra large bowel movement on 6/8/05 during the 11-7 shift. The administrator stated in a telephone interview on 6/20/05 at approximately 9 AM that the faxed BM record was not the actual record, but a recreation. S/he got together with the staff and tried to recreate a record, based on their recollections, but before s/he faxed it, forgot to make a notation on it to indicate recreation. Further review of the fax record revealed that only one signature (staff #1) appeared at the bottom of the page, an indication that s/he recreated the document. Staff member #3 stated in a telephone interview on 6/17/05 at 7:15 PM that when s/he saw the 6/05 bowel movement monitoring sheet, it was full of zeros and that the administrator was looking for the bowel monitoring sheet yesterday (6/16/05). 20. Based on the foregoing, The Gables of Lake Mary violated Section 400.449(1), Florida Statutes, herein classified as a Class II violation, which warrants an assessed fine of $5,000.00. COUNT III THE GABLES OF LAKE MARY FAILED TO ENSURE THAT IT PROVIDED THE CARE AND SERVICES APPROPRIATE TO THE NEEDS OF A RESIDENT AND DID NOT SEEK TIMELY MEDICAL INTERVENTION FOR A RESIDENT WHO DIED UNEXPECTEDLY Rule 58A-5.0182, Florida Administrative Code CLASS I VIOLATION 21. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 22. During the complaint investigation conducted on 6/14 through 6/23/05 and based on record review and interview the facility failed to ensure that it provided the care and services appropriate to the needs of a resident and did not seek timely medical intervention for a resident (#3), who died unexpectedly after repeated voiced concerns from caregivers regarding the resident's frequent complaints of constipation, lower back and abdominal pain and fecal impaction. 23. Resident record review for sampled resident #3 on 6/14/05 at approximately 1 PM revealed the following: 24. Health assessment form 1823 dated 1/22/04 documented resident #3 with a diagnosis of Dementia and needed supervision with ADLs and medications. Further review revealed a Florida DNR dated 12/26/03. An order dated 1/27/04 called for Senokot one tablet every day at bedtime and MOM (Milk Of Magnesia) with Cascara 5cc by mouth daily PRN (as needed) for constipation, along with other medications. 25. Although the ARNP visited the facility every Wednesday, no written evidence is available to indicate that s/he was made aware of the resident's constipation. ARNP notes documented that: (a) dated 2/10/04 resident #3 was new to facility, has history of left hip fracture, seizure disorder, dementia, hypothyroidism, Arthrosclerotic heart disease, and probable PVD, chronic bronchitis, DJD and osteoporosis. "Staff stated that patient is very belligerent and often picks fights with other residents". Per notations Respirdal 0.25 mg every morning was added to her/his medication regimen. (b) dated 3/3/05 treatment of a skin condition, some purple areas that have scabbed over and are healing (c) dated 4/20/05 "the family fears that s/he is over medicated as seems to sleep whenever the visit, however the staff vehemently denies this and stated that she does not need a decrease in her meds as they fear if this happens she will begin screaming and become very agitated". (d) Facility note dated 12/2/04 documented that "resident continent of bowel and bladder" (e) Facility note dated 4/27/05 noted that the daughter was notified that resident needed briefs, gloves and wipes. (£) Pacility note dated 5/6/05: "Resident complained (c/o) lower back pain, no injuries noted. Resident unable to describe, + BS (positive bowel signs). Physician called x-ray of lower back ordered. Order dated 5/6/05" x-ray lower back, c/o severe pain" X-ray report dated 5/6/05 documented degenerative changes, osteopenia and thoralumbar scoliosis. (g) Facility note dated 5/18/05:"Resident c/o severe adb pain, abd x ray ordered .If - (negative sign) Kristalate 20gm qd (daily) ordered. Order dated 5/18/05 "Abd x-ray R/O (rule out) fecal impaction, if -, Kristalate 20 gm qa" (h) X-ray report dated 5/19/05 documented findings: large amount of fecal material noted throughout the colon. The bowel gas is non-specific. No free air or calculi. Impression: Large amount of fecal material noted thought the colon". 26. No written notations were available to indicate what actions were taken after the x-ray report was received by the facility, no indications of who received it, if and how the results were made known to the physician or ARNP and what treatments if any were provided to the resident and the resolution of the "severe abdominal pain" or communication with the resident's responsible party. 27. The medical record clerk at Cyrus Diagnostic Imaging stated on 6/16/05 at approximately 10:45 AM that the x ray reports are sent to the place were the x-ray was taken, in this case back to the facility. The DON (LPN) stated on 6/15/05 at approximately 5:45 PM that after the initial call for the x-ray, s/he no longer had any involvement regarding the issue. The follow up was left to whichever one cf the other nurses received the report. Review of the Director of Resident Care job description on 6/17/05 at approximately 4 PM revealed position summary as "Coordinates and manages the nursing program" and the #1 essential function as "Directly oversees the delivery of care to residents to ensure emotional, physical, psychological and safety needs are met through all program services and activities”. The We_lness Nurse job description documented that "Notifies physicians and/or family members of any change in the resident's health and provides proper documentation". Several unsuccessful attempts were made to contact the other two nurses (LPNs), who may have received the X ray report. 28. Continued record review revealed: Facility note dated 6/9/05 @3:30 PM: "Received call from CNA that resident had expired. “Upon arrival, this writer saw resident lying in bed without any signs of life, family was present. CNA cleaned resident of vomit, changed bed linen and resident gown". The DON stated on 6/15/05 at approximately 5:45 PM that that s/he was “this writer". 29. The administrator stated on 6/15/05 at approximately 4:30 PM that on 6/9/05 at approximately 3 or 4 AM received a call from DON that informed her/him that while staff did initial rounds resident #3 appeared fine. During the next round 1 or 3 hrs later, resident did not look right. They went back to check on resident (time not known) and resident had vomited and were still breathing, called 911 and the medics decided not to perform CPR since resident had a DNR. 30. The DON stated on 6/15/06 at approximately 5:45 PM that s/he had worked that evening until 1 AM. S/he had just gctten home, when she received a call from the facility that the resident was dead. The resident death was very unexpected, s/he stated, because the resident had been herself during the day. S/he further stated that, per CNA, the resident had been OK at start of shift (11-7). When doing rounds again the two staff noted that resident was breathing as if she was dying, and staff called 911. Several attempts were made from 6/14/05 to 6/17/05, to contact staff #6, the caregiver assigned to the secure unit on 6/9/05, to no avail. 31. A staff (#7) stated on 6/17/05 at approximately 1 PM that on the night of 6/9/05 s/he was working on the second floor of the facility, not the memory care unit. Unsure of the time, but stated that the staff working the secure unit came and got her/him because resident #3 was not well. When they got to the resident's room, the resident had shallow breathing 12 and brown "stuff" coming out of the mouth and nose, sfhe then called 911. S/he stated that they (the staff) did not perform CPR because the resident had a DNR. S/he also stated thaz s/he was aware that the resident had a constipation problem, but seemed that whenever the nurses were informed their response was always "I know, I know ". 32. The Lake Mary police report dated 6/9/05 documented that the call to 911 was received at 3:22 and upon arrival, the Lake Mary Fire Dept was there, "they advised that they witnessed resident pass away after confirming the appropriate DNR paperwork and appeared that she passed away of natural causes." 33. Continued resident record review revealed Broward Removal Services, Inc. documented that the body was removed from The Gables of Lake Mary on 6/9/05 at 4:15 and indicated the time of death as 2 AM. 34. The BM record form is inconsistent and contained blank spaces therefore it is difficult to ascertain if there was no BM or was it lack of documentation. 35. The BM records documented absent BM from 1/25/05 to 1/27/05, then again on 2/10/05 to 2/14/05 buz MOM was not documented as given either time. The MOR documented that MOM was given on 3/2 at 7 PM although, the March BM record documented a "small BM" on 3/1 and 3/2/05. Again, BM record documented absent BM on 5/4 to 5/6, 5/14 to 5/18 on, but MOM 13 was not documented as given. A large BM was documented on 5/19, extra large on 5/20, large on 5/21, medium on 5/22, however the May MOR documented that MOM was given on 5/22 @ 6:15 PM, although BMs were present that day and the prior days. June 2005: Not available for review during facility survey. 36. Medication Observation Record (MOR) review revealed the inconsistencies with the BM log and the administration of MOM. When surveyors inquired regarding a constipation policy, the administrator, an RN, stated on 6/15/05 at approximately 5 PM, that a written policy was not available, but a nursing standard was if there was no BM in three (3) days then there was constipation and that was the standard used by the facility. The DON stated on 6/15/05 at approximately 5:45 PM that other alternatives to MOM were used sometimes, e.g. increased water intake and warm prune juice, but these palliative measures would not be documented. 37. On 6/16/05 at approximately 4 PM a Fax of the June BM record was received. The record documented that resident has a small bowel movement on 6/1, 6/3 and 6/5 and an extra large on 6/8/05 during the 11-7 shift. The administrator stated in a telephone interview on 6/20/05 at approximately 9 AM that the faxed BM record was not the actual record, but a recreation. S/he got together with the staff and tried to recreate a record, based on their recollections, but before s/he faxed it, forgot to make a notation on it to indicate recreation. Staff member #3 stated in a telephone interview on 6/17/05 at 7:15 PM that when s/he saw the 6/05 bowel movement monitoring sheet, it was full of zeros and that the administrator was looking for the bowel monitoring sheet yesterday (6/16/05). 38. Monthly nursing summaries completed by RN's dated from 12/04 to 5/05 documented that resident was incontinent of bladder and bowel, however they make no reference regarding the resident's bowel pattern, the complaints of abdominal pain, the provision of x-rays and outcome of the x-rays or communication with the physician. Nursing assessments were not performed in accordance with the Nursing Standards of Practice to include information collected from observation of and interaction with the resident, the resident's record, and any other relevant sources; the analysis of the information; and make recommendations for modification of the resident's care as any prudent RN would have done. Instead, per staff interviews the "nurses don't respond". Phone interview with an anonymous caller on 10/24/05 at 10:30 AM revealed the person to be an employee of the facility. It was stated that on the day of 6/8/05 Resident #3 was neglected. The resident was in tremendous pain and crying. Resident #3 was taken to the nurse who said s/he couldn't help because the ARNP was already gone. The resident was taken back to the room without 1S any assessment or treatment. The staff of the next shift took the resident to the nurse again in the evening because resident #3 was still crying and holding her belly in pain. Again no assessment was performed and the physician was not notified. The resident expired in the early morning hours of 6/9/05 with no care or services being provided by nursing staff. 39. Staff #9 stated on 6/16/05 at approximately 7 PM that there were times when assigned to the secure unit. Occasionally worked with resident #3, who complained of constipation. When resident went to bathroom, would cry for help and s/he would tell resident to push. 40. S/he recalled that staff #1 told ARNP to see resident #3, but ARNP left without seeing the resident. Seemed that like the ARNP does not have time for the residents now that's/he brings baby to work. 41. Staff #12 stated on 6/16/05 at approximately 6 PM that sometime at end of April or beginning of May, staff # 3 called her because resident # 3 was complaining of lower back pain and calling out for "the white one". When arrived at the facility resident was screaming in pain, wanted back rub. S/he asked staff #3 what was protocol for 911. Staff #3 stated that the DON was called first for approval. The DON was called and stated not send to hospital and not to call staff # 12 again. Another staff (med tech) came to the resident's room and stated the resident was not going out (to hospital) and that resident was "impacted" and that if s/he stayed in bed "it may come down". To her knowledge resident was given warm prune juice and other meds (unknown) to help with the constipation or CNA would manipulate feces and nurses would do it sometimes. 42. Interview with staff member #3 was conducted by telephone on 6/17/05 at 7:15 PM. S/he stated that resident #3 always yelled out a lot and that the resident stopped eating, lost weight and s/he wondered why the resident was not eating. S/ne observed a nurse trying to disimpact the resident in late May or early June. S/he stated that the evening before resident #3 died, s/he noticed that the resident's condition was not right in that s/he felt limp. S/he brought another staff (med tech) in to look at the resident and later their observations were reported to a nurse (name unknown). They were told by the nurse that the resident was "just impacted". They (caregivers) felt that resident should have been sent to the hospital. Whenever s/he approached the DON with concerns about the resident, the DON stated that the family had to make the decision about sending the resident to the hospital. When asked why didn't s/he called 911, s/he stated that s/he would be "chewed out" by the DON and it was the understanding that the family had to be called first before calling 911 because the family could sue the facility. 17 43. Based on the foregoing, The Gables of Lake Mary violated Rule 58A-5.0182, Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. COUNT IV THE GABLES OF LAKE MARY FAILED TO ENSURE THAT THE RESIDENT’S HEALTH CARE PROVIDER AND OTHER APPROPRIATE PARTY WERE CONTACTED WHEN RESIDENT #3 EXHIBITED A SIGNIFICANT CHANGE Rule 58A-5.0182(1) (d), Florida Administrative Code CLASS I VIOLATION 44, AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 45. During the complaint investigation conducted on 6/14 through 6/23/05 and based on record review and interview the facility failed to ensure that the resident's health care provider and other appropriate party (resident's family, guardian, health care surrogate, or case manager) were contacted when the resident (#3) exhibited a significant change, persistent constipation, abdominal and lower back pain and x rays and repeatedly voiced concerns from the caregivers. 46. Resident record review for sampled resident #3 on 6/14/05 at approximately 1 PM revealed the following: (a) Facility note dated 5/6/05: "Resident complained (c/o) lower back pain, no injuries ncted. Resident unable to describe, + BS (positive bowel signs). Physician called x-ray of lower back ordered. Order dated 5/6/05 "x-ray lower back, c/o severe pain" (b) X-ray report dated 5/6/05 documented degenerative changes, osteopenia and thoralumbar scoliosis. (c) Facility note dated 5/18/05: “Resident c/o severe adb pain, abd x ray ordered .If - (negative sign) Kristalate 20 gm qd (daily) ordered. Order dated 5/18/05 "Abd x-ray R/O (rule out) fecal impaction, if -, Kristalate 20 gm qd." The medical record clerk at Cyrus Diagnostic Imaging stated on 5/16/05 at approximately 10:45 AM that the x ray reports were sent back to the facility. X-ray report dated 5/19/05 documented findings: large amount of fecal material noted thought the colon. The bowel gas is non-specific. No free air or calculi. Impression: Large amount of fecal material noted thought the colon". 47. No written notations were available to indicate what actions were taken after the x-ray report was received by the facility, no indications of who received it, if and how the results were made known to the physician or ARNP and what treatments if any were provided to the resident and the outcome of the condition and contact with the resident's responsible party regarding the health condition changes and X-ray results. 48. Although the ARNP visited the facility every Wednesday, no written evidence is available to indicate that s/he was made aware of the resident's constipation. ARNP notes dated 2/10/04, 12/21/04 and 3/3/05 make no mention of concerns regarding constipation. Note dated 2/10/04 "Presents to get established with practice". Note dated 12/21/04 " Presents for routine evaluation". Note dated 3/3/05 "Staff stated s/he has had some scabbed areas to right face now for the last several days ". 49. Monthly summaries dated from 12/04 to 5/05 documented that resident was incontinent of bladder and bowel, however they make no reference regarding the resident's bowel pattern, the complaints of abdominal pain, the provision of x- rays and, outcome of the x-rays or communication with the physician. 50. The DON (LPN) stated on 6/15/05 at approximately 5:45 PM that after the initial call for the x-ray, s/he no longer had any involvement regarding the issue. The follow up was left to whichever one of the other nurses received the report. 51. Staff stated during telephone interviews that resident #3 experienced constipation and often cried out in pain and that the nurses were made aware of their concerns but the nurses simply ignore them. 52. Staff (#7) stated on 6/17/05 at approximately 1 PM that on the night of 6/9/05 s/he was aware that the resident had a constipation problem, but seem that whenever the nurses 20 were informed their response was always "I know, I know”, so you just let it be at that". 53. Staff #9 stated on 6/16/05 at approximately 7 PM that there were times when assigned to the secure unit. Occasionally worked with resident #3, who complained of constipation. When resident went to bathroom, would cry for help and s/e would tell resident to push, was all s/he could do. 54. Staff #12 stated on 6/16/05 at approximately 6 PM that sometime at end of April or beginning of May, staff # 3 called her because resident # 3 was complaining of lower back pain and calling out for "the white one". Another staff (med tech) came to the resident's room and stated the resident was not going out (to hospital), and that resident was "impacted" and s/he stayed in bed "it may come down". 55. Staff member #3 stated on 6/17/05 at 7:15 PM that resident #3 always yelled out a lot and that the resident stopped eating, lost weight and s/he wondered why the resident was not eating. S/he observed a nurse tried to disimpact the resident in late May or early June. S/he stated that the evening before resident #3 died, s/he noticed that the resident's condition was "not right in that s/he felt limp". S/he brought another staff (med tech) in to look at the resident and later their observations were reported to a nurse 21 (mame unknown). They were told by the nurse that the resident was "just impacted”. 56. Based on the foregoing, The Gables of Lake Mary violated Rule 58A-5.0182(1)(d), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. COUNT V THE GABLES OF LAKE MARY FAILED TO ENSURE TO MAINTAIN A WRITTEN RECORD, UPDATED AS NEEDED OF ANY SIGNIFICANT CHANGES IN THE RESIDENT #3 NORMAL APPEARANCE OR STATE OF HEALTH Rule 58A-5.0182(1) (e), Florida Administrative Code CLASS II VIOLATION 57. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 58. During the complaint investigation conducted on 6/14 through 6/23/05 and based on record review and interview the facility failed to ensure it maintained a written record, updated as needed, of any significant changes in the resident's (#3) normal appearance or state of health (persistent constipation, abdominal and lower back pain) after repeatedly voiced concerns from the caregivers for a resident whe died unexpectedly. 59. Staff stated during telephone interviews that they were all aware that resident #3 experienced constipation and often cried out in pain and that the nurses were made aware of 22 their concerns but they were simply ignored. These interviews were conducted by telephcne. 60. Staff #7 stated on 6/17/05 at approximately 1 PM that on the night of 6/9/05 s/he was aware that the resident had a constipation problem, but seem that whenever the nurses were informed their response was always "I know, I know”, so you just let it be at that". 61. Staff #9 stated on 6/16/05 at approximately 7 PM that there were times when assigned to the secure unit. Occasionally worked with resident #3, who complained of constipation. When resident went to bathroom, would cry for help and s/he would tell resident to push, was all s/he could do. 62. Staff #12 stated on 6/16/05 at approximately 6 PM that sometime at end of April or beginning of May, staff # 3 called her because resident # 3 was complaining of lower back pain and calling out for "the white one" (It was common knowledge among the staff, that the white one was staff #12). Staff #3 contacted the DON regarding his/her concerns, who instructed him/her not to send resident to the hospital. Another staff (med tech) came to the resident's room and stated the resident was not going out (to hospital), and that resident was "impacted" and s/he stayed in bed "it may come down". 63. Staff #3 stated on 6/17/05 at 7:15 PM that resident #3 always yelled out a lot and that the resident stopped eating, lost weight and s/he wondered why the resident was not eating. S/he observed a nurse tried to disimpact the resident in late May or early June. S/he stated that the evening before resident #3 died, s/he noticed that the resident's condition was not right in that s/he felt limp. S/he brought another staff (med tech) in to look at the resident and later their observations were reported to a nurse (name unknown) . They were told by the nurse that the resident was "just impacted". 64. Monthly summaries dated from 12/04 to 5/05 documented that resident was incontinent of bladder and bowel, however they make no reference regarding the resident's bowel pattern, the complaints of abdominal pain or the concerns voiced by staff. 65. Further review revealed that no written notations were available to indicate that the nurses documented the staff concerns regarding the resident's bouts of constipation, cries for help and complaints of pain. The only notations that make reference to pain are dated 5/6/05: "Resident complained (c/o) lower back pain, no injuries noted. Resident unable to describe, + BS (positive bowel signs). Physician called x-ray of lower back ordered" and 5/18/05:"Resident c/o severe adb pain, abd x ray ordered .If - (negative sign) Kristalate 20gm qd (daily) ordered. Order dated 5/18/05 "Abd 24 x-ray R/O (rule out) fecal impaction, if -, Kristalate 20 gm qa" 66. The administrator stated on 6/15/05 at approximately 4:30 PM that no further written documentation was available and did not know why no notations were available. 67. Based on the foregoing, The Gables of Lake Mary violated Rule 58A-5.0182(1)(e), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $5,000.00. COUNT VI THE GABLES OF LAKE MARY FAILED TO ENSURE THAT NURSING SERVICES WERE AUTHORIZED BY A HEALTH CARE PROVIDER’S ORDER, RECORDED IN NURSING PROGRESS NOTES AND IN ACCORDANCE WITH THE PREVAILING STANDARDS OF PRACTICE IN THE NURSING COMMUNITY Rule 58A-5.030(8)(c), Florida Administrative Code CLASS I VIOLATION 68. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 69. During the complaint investigation conducted on 6/14 through 6/23/05 and based on record review and interview the facility failed to ensure that nursing services were authorized by a health care provider's order, recorded in nursing progress notes and in accordance with the prevailing standards of practice in the nursing community: allowed the performance of digital manipulation of feces (disimpaction) by nurses without a physician's. order, did not document disimpaction on nurses notes, did not administer a medication 25 according with the physician's order (MOM for constipation) and allowed non-licensed staff to perform nursing duties (manual disimpaction) . 70. Resident record review for sampled resident #3 on 6/14/05 at approximately 1 PM revealed the following: (a) Health assessment form 1823 dated 1/22/04 documented resident with a diagnosis of Dementia and needed supervision with ADLs and medications. Further review revealed a Florida DNR dated 12/26/03. An order dated 1/27/04 called for Senokot one tablet every day at bedtime and MOM (Milk Of Magnesia) with Cascara 5cc by mouth daily PRN (as needed) for constipation, along with other medications. (b) Medication Observation Record (MOR) review revealed the inconsistencies with the BM log and_ the administration of MOM. When surveyors inquire regarding a constipation policy, the administrator, an RN, stated on 6/15/05 at approximately 5 PM that a written policy was not available, but a nursing standard was if there was no BM in three (3) days then there was constipation. S/he also stated that this was the standard used by the facility. {c) The May BM record documented absent BM on 5/4 to 5/6, 5/14 to 5/18 on, but MOM was not documented as given. A large BM was documented on 5/19, extra large on 5/20, large on 5/21, medium on 5/22, however the May MOR documented that 26 MOM was given on 5/22 at 6:15 PM, although BM s were present that and the prior days. (d) The DON stated on 6/15/05 at approximately 5:45 PM that other alternatives to MOM were used sometimes, e.g. increased water intake and warm prune juice, but’ these palliative measures would not be documented. (e) Monthly summaries dated from 12/04 to 5/05 documented that resident was incontinent of bladder and bowel, however they make no reference regarding the resident's bowel pattern. (£) Staff #12 stated on 6/16/05 at approximately 6 PM that to her knowledge resident was given warm prune juice and other meds (unknown) to help with the constipation or CNA would manipulate feces and nurses would do it sometimes. Anonymous caller on 6/24/05 at 10:30 am stated s/he had to do stool removal for resident #3. S/he was trying to help because the nursed didn't respond. Interview with staff member #3 was conducted by telephone on 6/17/05 at 7:15 PM. S/he observed a nurse try to disimpact the resident in late May or early June. 71. Based on the foregoing, The Gables of Lake Mary violated Rule 58A-5.030(8)(c), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $10,000.00. 27 SURVEY FEE Pursuant to Section 400.419(10), Florida Statutes, AHCA may assess a survey fee of $500.00 to cover the cost of conducting monitoring visits conducted under Section 400.428(3) (c) to verify the correction of the violations. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court tc order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against The Gables of Lake Mary on Counts I through VI. 2. Assess an administrative fine of $45,000.00 against The Gables of Lake Mary on Counts I through VI for the violations cited above. 3. Assess a survey fee of $500.00 against The Gables of Lake Mary, pursuant to Section 400.419(10), and 400.428 (3) (c), Florida Statutes. 4, Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2004). Specific options for administrative action are set out in the attached Election of Rights and explained in the attached Explanation of Rights. 28 All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE te Uoen elson E. Rodney, Esq. Assistant General CounSel Agency for Health Care Administration Spokane Bldg., Suite 103 8350 N. W. 52™4 Terrace Miami, Florida 33166 Copies furnished to: Joel Libby Field Office Manager Agency for Health Care Administration 400 West Robinson Street, Suite $309 Orlando, Florida 32801 (U.S. Mail) Jean Lombardi Finance and Accounting Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 (Interoffice Mail) Assisted Living Facility Unit Program Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 (Interoffice Mail) 29 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Julie S. Fernandez, Administrator, The Gables of Lake Mary, 3655 W. Lake Mary Boulevard, Lake Mary, Florida 32746, Senior Living/Lake Mary, LLC, 10 Woodbridge Center Drive, Suite 420, Woodbridge, New Jersey 07095, and to NRAI Services, Inc., 2731 Executive Park Drive, Suite 4, Weg 1 Florida 33331 on this pm day of 7 , 2005. cee pe 30

Docket for Case No: 05-003134