Division of Administrative Hearings STATE OF FLORIDA p AGENCY FOR HEALTH CARE ADMINISTRATI STATE OF FLORIDA. oT > uf . AGENCY FOR HEALTH CARE Date 24-06 ADMINISTRATION, Petitioner, AHCA Nos.: 2006004378 (FINE) 2006004379 (CL) vs. SV/JUPITER PROPERTIES, INC. d/b/a Ole DUUY DOCTORS LAKE OF ORANGE PARK, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “Agency”), by and through the undersigned counsel, ‘and files this Administrative Complaint against SV/TUPITER PROPERTIES, INC. d/b/a DOCTORS LAKE OF ORANGE PARK (“Respondent”), pursuant to Sections 120.569, and 120.57, Florida Statutes (2005), and alleges: NATURE OF THE ACTION 1. This is an action to impose administrative fines of FIFTEEN THOUSAND DOLLARS ($15,000.00), and a survey fee of SIX THOUSAND DOLLARS ($6,000.00) pursuant to Sections 400.23(8)(a), and 400.19(3), Florida Statutes (2005), respectively. 2. This is an action to uphold the assignment of a conditional licensure rating pursuant to Section 400.23(7)(b), Florida Statutes (2005). 3. The Respondent was cited for a violation during an extended survey on or about February 27, 2006. The extended survey was performed as a result of the licensure survey which had commenced on or about February 21, 2006. Accordingly, the Respondent was cited for one Class I deficiency and assigned conditional licensure status for the period starting February 27, 2006, until the standard license was assigned on April 20, 2006. JURISDICTION AND VENUE 4, The Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2005) and 28-106, Florida Administrative Code (2005). 5. The State of Florida, Agency for Health Care Administration, has jurisdiction over Respondent pursuant to Chapter 400, Part Il, Florida Statutes (2005). 6. Venue shall be determined pursuant Section 120.57, Florida Statutes (2005), and to Rule 28-106.207, Florida Administrative Code (2005). PARTIES 7. 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 {1, Florida Statutes (2005), and Chapter 59A-4, Florida Administrative Code (2005). 8. Respondent is a 120-bed skilled nursing facility located at 833 Kingsley Ave., Orange Park, Clay County, Florida 32073. Respondent is and was at all times material hereto, a licensed facility under Chapter 400, Part II, Florida Statutes (2005), and Chapter 59A-4, Florida Administrative Code (2005), having been issued license number SNF1237096. 9. Respondent was assigned by AHCA a conditional licensure status with an effective date of February 27, 2006, and certificate number 13454 (Exhibit “A”). Nw Subsequently, the Respondent was assigned by AHCA a standard licensure status effective April 20, 2006, and certificate number 13457 (Exhibit “B”). COUNT I THE RESPONDENT FAILED TO ENSURE THAT THE RESIDENTS’ RIGHTS TO BE FREE FROM MENTAL AND PHYSICAL ABUSE, CORPORAL PUNISHMENT, EXTENDED INVOLUNTARY SECLUSION, AND PHYSICAL AND CHEMICAL RESTRAINTS EXCEPT THOSE AUTHORIZED BY A PHYSICIAN IN WRITING FOR A SPECIFIED AND LIMITED TIME OR AS ARE NECESSITATED BY AN EMERGENCY; WITH SUCH EMERGENCY ONLY A QUALIFIED LICENSED NURSE MAY APPLY RESTRAINT WHO SHALL SET FORTH IN WRTING THE CIRCUMSTANCES REQUIRING THE USE OF RESTRAINT (AND IN THE CASE OF CHEMICAL RESTRAINT, A PHYSICIAN SHALL BE CONTACTED IMMEDIATELY THEREAFTER) , WERE UPHELD/ENFORCED THEREBY VIOLATING Section 400.022(1)(0), Florida Statutes (2005) Sections 400.23(7)(b) and (8)(a), Florida Statutes (2005) CLASS I DEFICIENCY 10. The Agency re-alleges and incorporates paragraphs (1) through (9) as if fully set forth herein. 11. The regulatory provisions of the Florida Statutes that are pertinent to this alleged violation, reads as follows: Section 400.022 Residents’ Rights, Florida Statutes (2005) (1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following: 0) The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety. Section 400.23 Rules; evaluation and deficiencies; licensure status-, Florida Statutes (2005) (7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home. (b) 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 rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned. (8) The agency shall adopt rules to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or ina very limited number of locations. 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 pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. The agency shall indicate the classification on the face of the notice of deficiencies as follows: (a) Aclass I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection. A fine must be levied notwithstanding the correction of the deficiency. 12. AHICA surveyors conducted a licensure survey on or about February 21, 2006, of the Respondent’s facility. An extended survey by the AHCA surveyors was conducted. on February 27, 2006. AHCA cited the Respondent for the Class I violation. 13. The AHCA surveyors based on observing 15 of 19 sampled residents with long side rails, 53 unsampled residents with long side rails, 1 of 19 sampled residents with three-quarter-length side rails, 19 unsampled residents with three-quarter-length side rails, and 4 unsampled residents with long side rails on electric beds, totaling 92 residents of the 95 residents which was the census on 2/21/06; interview with Respondent’s facility staff; confidential interviews with residents; and record review of Respondent’s facility policy and procedures designating the use of bed rails as a restraint determined that the Respondent failed to keep the residents, those not required to treat medical symptoms, free of physical restraints through continuing assessments and monitoring of the need for the side rails. The Respondent failed to ensure residents were free to move independently or had reasons that documented the need for the use of restraints prohibited the residents of this facility to attain and maintain their highest practicable level of well-being. During the recertification survey on or about February 21, 2006, the AHCA surveyors noted that the 92 residents identified as having bedrails (92 of the 95 total resident census) were in immediate jeopardy in resident safety. Specific findings include: 1. A tour of the facility on 2/21/06 at 9:00 a.m. observed residents in beds with long side rails up. This included observations of 15 sampled residents. It was observed that exit from the bed, without staff assistance to lower at least one of the bedsides, could only be accomplished by going over the top of the bed rail or exiting over the bottom or top of the bed. The residents were unable to get up without staff assistance due to the design of the bed rails. Interview with two unsampled residents designated by the facility as alert and oriented on 2/23/06 at 2:45 p.m. revealed that these resident had their sides down so that they could use the bathroom and staff pulled the side rails up, preventing them from independently getting out of the bed. Interview with the administrator and DON (Director of Nursing) on 2/21/06 at 3:07 p.m. revealed that the beds and side rails were replaced when they went bad and that less than one month ago, the facility got 17 three-quarter-length side rail beds from another facility. Interview with facility staff who were the two administrators, the DON, the occupational and physical therapists, and a nursing unit manager on 2/23/06 at 10:30 a.m. revealed that side rail assessments were done on all residents by the admitting nurse. The administrator stated that bed rails were designed for safety and all residents get side rails. The administrator stated that ifthe resident wants side rails off, their request must go to a committee to assess for side rails off if the resident is cognitive but not able to speak. If the resident was alert and oriented and wanted their side rails off and could speak, they could have their side rails off. The administrator stated "I see them as a safety enhancer, not a safety deterrent." The administrator stated that if a resident fell out of the beds with side rails then they would use the low beds. The administrator stated that the resident side rails were up at night. During that interview, the physical and occupational therapists stated that "the low bed was considered the highest level of restraint". The administrator stated that the facility had 17 three-quarter-length rail beds, 6 PVC (plastic) low beds, and 4 or 5 electric beds. During an interview on 2/23/06 at 11:30 a.m. with the staff development staff and review of an inservice conducted on 1/6/06 called "Preserving Resident Dignity with Restraint Use" attended by 33 staff revealed in the class material attached that "some examples of physical restraints are: side rails that are used to stop a person from getting out of bed”. When asked if the side rails were a restraint, the staff development person stated that they were. A policy "Proper Use of Bed Rails" was provided by the DON on 2/24/06 at 2:25 p.m. At the bottom of the policy was the title "restraints": The policy stated that “bed rails are considered a restraint when they are used to limit the resident's freedom of movement (prevent the resident from leaving his/her bed)". The policy further stated that the use of rails as restraints was prohibited unless necessary to treat a resident's medical symptoms. One of the less restrictive interventions that was documented in the policy was the use of a bed on the floor surrounded with a soft mat. The policy stated that if the least restrictive approaches were not successful, an order was to be obtained from the physician to apply the bed rails and monitor the use for specific time frames. A Side Rail Assessment policy and procedure dated 12/2/03 and signed by the current DON stated that the residents were to be assessed for the use of side rails on admission and quarterly by the restorative nurse or designee. Review of the inservice on “usage of safety devices" attended by 73 staff members on 5/20/05 documented "all residents with safety devices are identified in each ADL (Activities of Daily Living) book. Bed side rails were not included with the documented list of safety devices. Review of the "Restorative Roster" form, noted as update 2/17/06, revealed that SR2 (Side rail X 2) was included under the category of restraints and that 40 residents were under restorative care and had 2 side rails. 2. On 2/21/06 during the initial tour of the facility at 9:20 a.m., Resident #9 was observed in bed with the head of the bed up and two full side rails up with a visible gap between the mattress and the side rail. There were no side rail pads and the call bell was wrapped around the bed frame, hanging on the floor. Resident #9's cognitive status was assessed as moderately impaired on the MDS (Minimum Data Set) dated 02/05/2006. On 2/21/06 at 2:40 p.m., Resident #9 was observed in bed with the head of the bed up and two full side rails up with a visible gap between the mattress and the side rail. The call bell was wrapped around the bed frame and hanging on the floor and out of reach of the resident. On 2/21/06 at 5:15 p.m., Resident #9 was observed in bed with the head of the bed up and two full side rails up with a visible gap between the mattress and the side rail. The call bell was wrapped around the bed frame and hanging on the floor and out of reach of the resident. On 2/21/06 at 6:10 p.m., Resident #9 was observed in bed with the head of the bed up, two full side rails up with a visible gap between the mattress and the side rail. The call bell was wrapped around the bed frame and hanging on the floor and out of reach of the resident. On 2/22/06 at 7:38 a.m., Resident #9 was observed in bed with the head of the bed up, two full side rails up with a visible gap between the mattress and the side rail and the call bell was in reach of the resident. 3. On 2/21/06 at 5:00 p.m., Resident #13 was observed in bed with the head of the bed up, two full side rails up with a visible gap between the mattress and the side rail. There were no side rail pads. Resident #13's cognitive status is assessed as moderately impaired on the MDS completed 02/13/2006. The Care Plan for the resident had no approaches for side rail pads. On 2/22/06 at 10:00 p.m., Resident #13 was observed in bed with the head of the bed up, two full side rails up with a visible gap between the mattress and the side rail. On 2/23/06 at 1:00 p.m., Resident #13 was observed in bed with the head of the bed up, two full side rails up with a visible gap between the mattress and the side rail. 4. Observation of Resident #1 on 2/21/06 at 12:00 p.m. revealed that the side rails were up on both sides. There was a noticeable gap in between the mattress and the side rails due to the head of the bed being elevated. The call light was looped around the side rail on the resident's right side above the head and out of reach of the resident. There was no padding in the side rails and mattress; the gap was larger on the resident's left side than . the right. Observation of Resident #1 on 2/22/06 at 8:00 a.m. revealed that the resident was lying flat on his/her back, and there was a gap on the resident's left side. At 9:30 a.m., the head of the bed was elevated and a gap existed between the mattress and side rail. The gap was larger on the left side than on the right. The call bell was not within reach. At 12:45 p.m., Resident #1 was observed in bed and the call light was not in reach. It was not on the bed and was observed on the resident's chair. The head of the bed was elevated and a gap was noted on the left side due to the left side rail being raised higher than the right. 5. On 2/22/06 at 9:20 p.m., an unsampled resident in room 201A was observed in bed in high fowlers position. The left full side rail was up and the right rail was up at the top of the bed and down at the bottom of the bed. The resident was also on top of two mattresses. The resident was laying on a special mattress which had been placed on top of a regular mattress. This raised the resident up near the level of the side rails. The resident was listing to the right, towards the lower side rail. The resident's arms were bruised and there were no side rail pads. : On 2/23/06 at 1:15 p.m., the unsampled resident in room 201A was observed in bed in high fowlers position. The left full side rail was up and the right rail was up at the top of the bed and down at the bottom of the bed. The resident was also on top of two mattresses. He/she lay on a special mattress which had been placed on top of a regular mattress. This raised the resident up near the level of the side rails. He/she was listing to the right, towards the lower side rail. At this time, the resident had their right elbow wedged between the mattress and the side rail. Surveyor sought assistance from staff to extricate the resident's elbow from the side rail and reposition them. 6. Observation on 2/22/06 at 8:20 p.m. revealed an unsampled resident lying in bed with both side rails up. Interview with the resident revealed she/he would like the left rail lowered to allow for a leg to hang over the bed. Resident stated "I am very warm, and I would like to take my leg out of the blanket and extend it over the rail so I may sleep." Surveyor, at resident's request, asked a Certified Nursing Assistant (CNA) for assistance in lowering the rail for the resident's comfort. The CNA stated she was not allowed to have the rail down. Review of the facility-provided documentation on 2/23/06 "List of Cognitively Impaired Residents”, this resident was coded a "0", which implies this resident is not cognitively impaired and able to make sound decisions. 7. Observation of Resident #11 on 2/22/06 at 12:00 p.m. in the dining room, revealed this resident had a lap buddy while seated in the wheelchair. Review of the clinical record and the Resident Assessment Protocol (RAP) dated 5/4/05 showed that the resident could remove the lap buddy independently and therefore was not considered a restraint. Interview with Nursing on 2/22/06 at 12:30 p.m. at the nurse's station located on the 300 hall revealed this resident (#11) has been able to remove the restraint (lap buddy) in the past, but staff has not noticed the resident removing it lately. Observation in the dining room at 12:35 pm. on 2/22/06 revealed Resident #11 could not understand the nurse when the nurse asked her/him to release the lap buddy. When asked for the third time, "please release this (pointing to the lap buddy)", the resident tried for approximately 3 minutes to release the restraint, but was not able to do so. 8. Resident #3 had a side rail assessment completed on 01/05/06 documenting that side tails were not needed. On 02/22/06 at 9:35 p.m., the resident's side rails were up and a bed alarm going off. 14. The Respondent was cited for a widespread Class I deficiency and provided a mandated correction date of February 27, 2006. 15. A Class I deficiency is a deficiency that the Agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. 16. Pursuant to Section 400.23(8)(a), Florida Statutes, the foregoing is a widespread Class I deficiency pervasive at the Respondent’s facility, represents systemic failure or has the potential to affect a large portion of the residents. Accordingly, the Agency is authorized to impose upon the respondent a fine of FFTEEN THOUSAND DOLLARS ($15,000.00). 17. The Respondent had a Class I deficiency for which a fine must be levied notwithstanding the correction of the deficiency. Section 400.23(8)(a), Florida Statutes (2005). . 18. The. Respondent due to the presence of one class I deficiency, as the findings revealed, is not in substantial compliance at the time of the survey and thus, the Agency in accordance with Section 400.23 (7)(b), Florida Statutes (2005), assigned a conditional licensure status. 19. Pursuant to Section 400.19(3), Florida Statutes (2005), the above noted Class I violation constitutes the reason for the imposition of a six-month survey cycle fee of SIX THOUSAND DOLLARS ($6,000.00) upon the Respondent. CLAIM FOR RELIEF WHEREFORE, AHCA request this Court to order the following relief: 1. Make factual and legal findings in favor of AHCA on Count I. 10 2. Impose a fine FIFTEEN THOUSAND DOLLARS ($15,000.00) for the violation cited in Count I against the Respondent under Sections 400.23(8)(a) and; 3. Impose the survey cycle fee of SIX THOUSAND DOLLARS ($6,000.00) and; 4. Uphold the assignment by the Agency of a conditional licensure status. 5. All other general and equitable relief the court deems appropriate. DISPLAY OF LICENSE Pursuant to Section 400.23(7), Florida Statutes, SV/JUPITER PROPERTIES, INC. d/b/a DOCTORS LAKE OF ORANGE PARK shall post its current license in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility. The Conditional License and the subsequent Standard License are attached hereto respectively as Exhibits “A” and “B.” NOTICE SV/JUPITER PROPERTIES, INC. d/b/a DOCTORS LAKE OF ORANGE PARK is hereby notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the attention of: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, Telephone number: (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS 11 COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Respectfully submitted on this 2- day of _ s fom 209% Eric R. Bredemeyer Assistant General Cowfisel Fla. Bar No.: 318442 Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Ft. Myers, Florida 33901-3884 Tel.: (239) 338-3203 Fax. (239) 338-2699 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by postage paid U.S. Certified Mail return receipt (No. 7006 0100 0000 8970 1876) to: Administrator, DOCTORS LAKE OF ORANGE PARK, 833 Kingsley Ave., Orange Park, FL 32073; and by US. Certified Mail return receipt (No. 7006 0100 0000 8970 1869) to: Registered Agent, ANDREW SERVICE CORPORATION OF FLORIDA, 201 N. Franklin St., Suite 2100, Tampa, Florida 33602 on this_2—_dayof___¢ wr nt 2006. Sn“ ERIC R. BREDEMEYER, ES@UIRE

Docket for Case No: 06-002668