STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FO ADMINISTRATION, hE O ie DO «{ Petitioner, vs. Case Nos. 2007011214 2007011954 NEW PORT INVESTORS, LLC, d/b/a NEW PORT INN, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, New Port Investors, LLC, d/b/a New Port Inn (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2007), and alleges as follows: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of twenty five thousand dollars ($25,000.00) and assess survey fees in the amount of one thousand dollars ($1,000.00) based upon four class I deficiencies. JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2007). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and 120.60, and Chapters 408, Part II, and 429, Part I, Florida Statutes (2007). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable statutes and rules governing such facilities. Chs. 408, Part II, 429, Part I, Fla. Stat. (2007), Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or the applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2007). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2007). 5. The Respondent was issued a license by the Agency (License Number 4832) to operate a 126-bed assisted living facility located at 6120 Congress Street, New Port Richey, Florida 34652, and was at all material times required to comply with the applicable statutes and rules. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24-hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, privacy and the decision-making ability for residents, while providing them a reasonable assurance for the residents’ health, safety and welfare. Generally, assisted living facilities, through its ownership or management, undertakes to provide supervision, assistance with personal care and supportive services, and assistance with or administration of medications, to residents who require such case and services. COUNTI The Respondent Failed To Ensure That Staff Was Assigned Duties Consistent With Their Level Of Education, Training, Preparation And Experience In Violation Of F.A.C. 58A-5.019(2)(b) 6. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 7. Under Florida law, every assisted living facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as required by Chapter 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Fla. Admin. Code R. 58A-5.019(1). 8. Under Florida law, all assisted living staff shall be assigned duties consistent with his/her level of education, training, preparation and experience. Staff providing services requiring licensing or certification must be appropriately licensed or certified. All staff shall exercise their responsibilities, consistent with their qualifications, to observe residents, to document observations on the appropriate resident’s record, and to report the observations to the resident’s health care provider in accordance with Chapter 58A-5, Florida Administrative Code. Fla, Admin. Code R. 58A-5.019(2)(b). 9. Under Florida law, the assisted living facility shall maintain written records in a form, place and system ordinarily employed in good business practice and accessible to Department of Elder Affairs and Agency staff. These records shall include the personnel records for each staff member, which shall contain, at a minimum, a copy of the original employment application with references furnished, and verification of freedom from communicable disease, including tuberculosis, and copies of all licenses or certifications for all staff providing services which require licensing or certification. Fla. Admin. Code R. 58A-5.024(2)(a)2. 10. On August 27, 2007, the Agency conducted a biennial survey of the Respondent and its Facility. 11. Based upon record reviews, observation and interviews, the Respondent failed to comply with the above-referenced provisions by assigning duties to unlicensed, unqualified and untrained staff members (medication technicians) to prepare syringes of insulin for injections, perform blood glucose monitoring and make judgment decisions about the glucose results, for 2 of 14 sampled residents, thus placing these residents at risk for diabetic complications (Residents #1 and #7). This activity is the domain of a licensed nurse. 12. The Respondent, through its Administrator and/or Directing of Nursing, assigned duties to medication technicians at the Facility that included preparing syringes of insulin for injections, performing blood glucose testing and making judgment decisions about these glucose test results. 13. These duties fall within the domain of a licensed nurse or other licensed health care practitioner and may not be performed by medication technicians. 14. Medication technicians may assist competent residents with the administration of medications and assist with other healthcare products. They usually perform routine tasks, such as counting tablets and assisting with some types of medications. Typically, they have a basic level of knowledge and practice in the assistance of medications. Florida law does not require medication technicians to be licensed to perform their duties. 15. These medication technicians were unlicensed to perform such professional tasks and thus unqualified to perform them as a matter of law. 16. The Agency re-alleges and incorporates by reference the allegations in Count II. 17. The Respondent’s actions and/or inactions constituted a class I violation. 18. Class "I" 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 present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the Agency, is required for correction. The Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation. § 429.19(2)(a), Fla. Stat. (2007). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of five thousand dollars ($5,000.00). COUNT I The Respondent Failed To Ensure That Its Residents Received Assistance With The Self-Administraton of Medication Or The Administration of Medication From Licensed Staff Members In Violation of F.S. 429.255, F.S. 429.256 And F.A.C. 58A-5.0185 19. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 20. Under Florida law, no resident of an assisted living facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. § 429.28(1), Fla. Stat. (2007). Every resident of an assisted living facility shall have the right to: access to adequate and appropriate health care consistent with established and recognized standards within the community. § 429.28(1)@), Fla. Stat. (2007). 21. | Under Florida law, persons under contract to the assisted living facility, facility staff, or volunteers, who are licensed according to Part I of Chapter 464, Florida Statutes, or those persons exempt under Section 464.022(1), Florida Statutes, and others as defined by rule, may administer medications to residents, take residents’ vital signs, manage individual weekly pill organizers for residents who self-administer medication, give prepackaged enemas ordered by a physician, observe residents, document observations on the appropriate resident's record, report observations to the resident's physician, and contract or allow residents or a resident's representative, designee, surrogate, guardian, or attorney in fact to contract with a third party, provided residents meet the criteria for appropriate placement as defined in Section 429.26, Florida Statutes. Nursing assistants certified pursuant to Part II of Chapter 464, Florida Statutes, may take residents' vital signs as directed by a licensed nurse or physician. § 429.255(1)(a), Fla. Stat. (2007). All staff in assisted living facilities shall exercise their professional responsibility to observe residents, to document observations on the appropriate resident's record, and to report the observations to the resident's physician. § 429.255(1)(b), Fla. Stat. (2007). 22, Under Florida law, pursuant to Section 429.255, Florida Statutes, an assisted living facility may employ or contract with a nurse to: (1) take or supervise the taking of vital signs; (2) manage pill-organizers and administer medications as described under Rule 58A- 5.0185, Florida Administrative Code; (3) give prepackaged enemas pursuant to a physician’s order; and (4) maintain nursing progress notes. Fla. Admin. Code R. 58A.5-0182(5)(a). For facilities which provide medication administration, a staff member, who is licensed to administer medications, must be available to administer medications in accordance with a health care provi- der’s order or prescription label. Fla. Admin. Code R. 58A-5.0185(4)(a). Unusual reactions or a significant change in the resident’s health or behavior shall be documented in the resident’s record and reported immediately to the resident’s health care provider. The contact with the health care provider shall also be documented in the resident’s record. Fla. Admin. Code R. 58A-5.0185(4)(b). Medication administration includes the conducting of any examination or testing such as blood glucose testing or other procedure necessary for the proper administration of medication that the resident cannot conduct himself and that can be performed by licensed staff. Fla. Admin. Code R. 58A-5.0185(4)(c). 23. Under Florida law, the assistance with self-administration of medication by an unlicensed person may occur only upon a documented request by, and with the written informed consent of, a resident or the resident’s surrogate, guardian, or attorney in fact. § 429.256(2), Fla. Stat. (2007). However, assistance with self-administration of medication does not include the preparation of syringes for injection or the adminisration of medications by any injectable route. § 429.256(4)(b), Fla. Stat. (2007). Assistance with self-administration of medication also does not include medications for which the time of administration, the amount, the strength of dosage, the method of administration, or the reason for administration requires judgment or discretion on the part of the unlicensed person. § 429.256(4)(i), Fla. Stat. (2007). 24. —_ Under Florida law, assisted living facility staff shall observe the resident take the medication. Any concerns about the resident’s reaction to the medication shall be reported to the resident’s health care provider and documented in the resident’s record. Fla. Admin. Code R. 58A-5.0185(3)(c). The Unlicensed Practice of Nursing 25. It is the public policy of Florida that health care and treatment be provided by properly trained and skilled personnel. To effectuate this policy, Florida created agencies such as the Department of Health and the Agency for Health Care Administration and established a system for the licensing and regulation of “health care practitioners” and certain other health care personnel and health care facilities. See Ch. 456, 408, Part II, Fla. Stat. (2007). “It is the intent of the Legislature that persons desiring to engage in any lawful profession regulated by the department shall be entitled to do so as a matter of right if otherwise qualified.” § 456.003(1), Fla. Stat. (2007). “The Legislature further believes that such professions shall be regulated only for the preservation of the health, safety, and welfare of the public under the police powers of the state.” § 456.003(2), Fla. Stat. (2007). As for the profession of nursing, the Florida Legislature enacted the Nurse Practice Act. Ch. 464, Part I, Fla. Stat. (2007). “The sole legislative purpose in enacting this part is to ensure that every nurse practicing in this state meets minimum requirements for safe practice. It is the legislative intent that nurses who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state.” § 464.002, Fla. Stat. (2007). It is unlawful for any person to practice advanced or specialized, professional or practical nursing, as defined by Chapter 464, Florida Statutes, unless the person holds a license or certificate. § 464.016(1)(a), Fla. Stat. (2007). 26. The practice of nursing by unlicensed and untrained persons oftentimes places at jeopardy the health, safety and welfare of a resident. Several types of problems may arise when staff fails to properly respond to unusually low blood or critically high blood sugar levels of diabetic residents. According to the Mayo Clinic, “prolonged blood sugar extremes can cause [a person] to lose consciousness. This is known as a diabetic coma. Both very high blood sugar (hyperglycemia) and very low blood sugar (hypoglycemia) can lead to a diabetic coma. Left untreated, a diabetic coma is a life-threatening condition.” The facility should have in place a procedure that addresses acceptable blood sugar ranges for residents and what intervention the staff should implement when a resident’s blood sugar level is not within that range. This procedure should, at a minimum, include the prompt notification of the appropriate health care practitioner and the documentation of the resident’s condition for reference. These procedures and interventions should be included as an essential part of staff training. 27. On August 27, 2007, the Agency conducted a biennial survey of the Respondent and its Facility. 28. Based upon record reviews and interviews, the Respondent failed to ensure that its residents received assistance with the self-administraton of medication or the administration of medication from licensed staff members for 2 of 14 sampled residents (Residents #1 and #7). The Respondent also allowed two residents whose health assessments revealed that they had cognitive impairments and required assistance with medications to self-administer their insulin for 2 of 14 residents (Residents #11 and #12), Resident #1 29. A review of the health assessment for Resident #1 dated March 19, 2007, revealed that the Resident required assistance with medication. 30. Resident #1 was an insulin dependent diabetic who had physician orders for Lantus Insulin, 15 units, subcutaneously at 7:00 a.m. and at 8:00 p.m. 31. The Resident also had orders for blood glucose testing at 7:00 .m., 11:00 a.m., 4:00 p.m., and 8:00 p.m., with sliding scale coverage with Novolin R insulin as follows: 200-250 = 3 units, 251-300 = 6 units, 301-350 = 9 units, 351-400 = 12 units, and over 400 = call M.D. 32. During an interview with Resident #1 on August 27, 2007, at approximately 12:30 p-m., he or she stated that: "The girls give me the insulin and keep the records, they do the fingersticks, too. I used to do it all before I came here." 33. During an interview with the medication technician on August 27, 2007, at approximately 1:00 p.m., she revealed that she performs the blood glucose monitoring for the resident as ordered above and prepares the insulin syringe based on the results of the test. The resident then injects it. 34, She also revealed that she draws up the insulin for the regular doses too because the Resident cannot see well. 35. When informed that the Resident stated that the "girls do it all for her," the technician stated that the Resident injects it, but just “doesn't remember." 36. During an interview with the medication technician for the next shift on August 27, 2007, at approximately 3:15 p.m., it was revealed that she also performs the blood glucose monitoring for the Resident and draws up the required insulin doses to allow the Resident to inject the insulin. 37. During an interview with the Director of Nurses (DON) on August 27, 2007, at approximately 10:25 a.m., she stated that Resident #1 is on insulin, but he or she injects it himself or herself. 38. | When asked about the duties of the DON, insulin injections were not mentioned. 39. During an interview at approximately 1:00 p.m., the DON stated that she knew that the medication technicians were assisting Residents with the insulin and blood glucose monitoring, but reiterated that the Resident injects it. 40. In a nurse's note dated March 18, 2007, at approximately 8:45 p.m., it was noted that the Resident’s daughter was concerned about the Resident’s insulin. 41. The note stated that "we do hand over hand with the insulin." It does not mention who will draw it up or perform the blood glucose testing. 42. An Informed Consent to Assistance With Medication by Unlicensed Personnel form dated March 18, 2007, which was signed by the Resident's daughter, states that assistance with self-administration with medication does not include calculating the medication dosages, 10 preparing or administering injections, or performing any medication task that requires judgment or discretion. 43. A Resident Evaluation Data Collection Form found in the nurses' notes and dated March 18, 2007, states that the Resident has poor eyesight due to cataracts. 44. A review of the Resident’s Medication Observation Record (MOR) revealed that the Resident's blood glucose was not stable. 45. Out of a possible 104 times during August 2007, the Resident received sliding scale insulin 44 times. Resident #7 46. A record review of the MOR for Resident #7 revealed that the Resident was to have a blood glucose test performed at 6:00 a.m., 11:00 a.m., 4:00 p.m. and 8:00 p.m., and to receive an injection of Humulin R Insulin sub Q according to a sliding scale. 47. A record review of the MOR for August 2007 identified that the blood glucose tests were performed and read by a medication technician. 48. During an interview with the medication technician on August 27, 2007, at approximately 3:10 p.m., it was revealed that she was not a licensed professional and was not qualified to read the results of the blood glucose test and determine whether a resident should receive insulin as a result of the reading. 49. It was further revealed that she would read the results of the blood glucose test and determine if the Resident was to receive insulin as 2 result of the reading (calculating the medication dose). 50. It was further revealed that the Resident received no assistance by any licensed staff to perform this procedure. i Resident #11 51. An observation of Resident #11 revealed that he or she lived on the fifth floor of the Facility, which was a locked unit for Dementia residents. 52. A review of the Resident’s health assessment dated April 28, 2006, revealed that the Resident had a diagnosis of diabetes and required assistance with medications. 53. A review of the medication orders for the month of August 2007 revealed that the Resident was to have blood glucose tests performed twice daily with Novolin R Insulin coverage per sliding scale. 54. | During an interview with the Facility Administrator and the Director of Nurses (DON) on August 27, 2007, at approximately 2:00 p.m., it was stated that the Resident performs his or her own blood glucose testing and insulin injections. 55. They also stated that the locked unit is for residents who are at risk for elopement due to the inability to make judgments regarding safety. 56. A licensed staff member did not assist the Resident with his or her medication. Resident #12 57. A review of the health assessment dated August 11, 2007, for Resident #12 revealed that the Resident had a diagnosis of dementia and required assistance with medications. 58. The Resident’s physician's orders dated August 11, 2007, revealed that the Resident was to have blood glucose tests four times a day with sliding scale insulin. 59. During an interview with the medication_technician on August 27, 2007, at approximately 2:00 p.m., she stated that the Resident performs his or her own blood glucose monitoring and injects his or her own insulin. 60. A licensed staff member did not assist the Resident with his or her medication. 12 61. | The Respondent’s actions and/or inactions constituted a class I violation. 62. Class “I" 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 present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the Agency, is required for correction. The Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation. § 429.19(2)(a), Fla. Stat. (2007). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of five thousand dollars ($5,000.00). COUNT Il Assessment of Survey Fee 63. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 64. The Agency re-alleges and incorporates by reference Count I through Count II. 65. In addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of the assisted living facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28(3)(c), Florida Statutes, to verify the correction of the violations. § 429.19(7), Fla. Stat. (2007). 66. Asa result of the above-stated violations, the Agency is required to conduct 13 monitoring visits to verify the correction of these violations. 67. In this case, the Agency is authorized to seek a survey fee of five hundred dollars ($500.00) from the Respondent. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration respectfully requests the Court to assess a survey fee against the Respondent in the amount of five hundred dollars ($500.00). COUNT IV The Respondent Failed To Terminate The Employment Of A Non-Qualifying Staff Member Or Place The Staff Member In A Position For Which Background Screening Is Not Required ) In Violation Of F.S. 429.174(2) And F.S. 435.06 | 68. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 69. Under Florida law, the owner or administrator of an assisted living facility must conduct level 1 background screening, as set forth in chapter 435, on all employees hired on or after October 1, 1998, who perform personal services as defined in Section 429.02(16). The Agency may exempt an individual from employment disqualification as set forth in Chapter 435, Florida Statutes. § 429.174(2), Fla. Stat. (2007). 70. Under Florida law, when an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqual- ification. The only basis for contesting the disqualification shall be proof of mistaken identity. § 435.06(1), Fla. Stat. (2007). The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character 14 contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07, Florida Statutes. § 435.06(1), Fla. Stat. (2007). Any person who is required to undergo employment screening and who refuses to cooperate in such screening or refuses to sub- mit the information necessary to complete the screening, including fingerprints when required, shall be disqualified for employment in such position or, if employed, shall be dismissed. § 435.06(3), Fla. Stat. (2007). Level 1 Background Screening Requirements 71. The Florida Legislature mandates background screening for certain types of positions. The primary purpose for background screening is to enhance the safety and well- being of patients and residents. Oftentimes, the patients and residents of a health care facility consist of disabled adults, frail elders and other vulnerable people with mental and/or physical disabilities. These vulnerable people are at risk of physical, mental and emotional abuse, medical neglect and financial exploitation. By requiring a background screening of certain types of employees as a condition of their employment, the law attempts to protect the safety and security of patients and residents. As a secondary purpose, background screening bolsters the public’s trust in the medical profession and lessens the risk of potentially catastrophic civil liability for a facility. The commission of a crime or tort upon a patient or resident not only has a direct impact upon the victim, but also an impact upon the fellow patients or residents of the facility as well as the family members of the victimized patient or resident. 72. On September 25, 2007, the Agency commenced a complaint survey of the Respondent and its Facility. 73. Based upon record review and interview, the Respondent hired and retained 4 out 15 felony convictions for the sale of controlled substances. 97. The sale of control substances is a disqualifying offense for employment. 98. Staff Member #2 was assigned to provide and did provide direct care to residents in the Facility. 99. | The Staff Member was terminated by the Facility on September 27, 2007, and was told by the Facility Administrator that she could come back when she obtained an exemption from the Agency. 100. The Respondent allowed four staff members who provided direct care to vulnerable residents to remain working in the Facility, even though they did not meet the background screening requirements. 101. There were no exemptions from disqualification of employment which had been approved by the Agency. 102. By hiring and retaining four direct care staff members with disqualifying offenses for employment, the Respondent allowed conditions in the Facility that threatened the physical or emotional health, safety, or security of the residents. 103. The Respondent’s actions and/or inactions constituted a class I violation. 104. Class "I" 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 present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the Agency, is required for correction. The Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not 18 exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation. § 429.19(2)(a), Fla. Stat. (2007). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of seven thousand five hundred dollars ($7,500.00). oe COUNT V The Respondent’s Supervisor Failed To Properly Manage Staff And Provide For the Adequate Care Of Residents In Violation Of F.A.C. 58A-5.019(1) 105. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 106. Under Florida law, every assisted living facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as required by Chapter 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Fla. Admin. Code R. 58A-5.019(1). 107. On September 25, 2007, the Agency commenced a complaint survey of the Respondent and its Facility. 108. Based upon staff interview and record review, the Facility Administrator failed to fulfill responsibilities in providing supervision and oversight in the operation and maintenance of the facility, including the management of all staff and the provision of adequate care in a safe and decent living environment to all residents in that four staff members who provided direct care to residents (Staff Members #1, #2, #3 and #4) were hired and retained with disqualifying offenses on their background screenings. 109. The Agency re-alleges and incorporates by reference Count IV. 110. During an interview with the Administrator on September 25, 2007, she stated that she misinterpreted the reports and thought that Staff Member #1 still needed to go to trial. 111. During an interview with the Facility Administrator on September 28, 2007, at approximately 3:00 p.m., she stated that she was not aware that domestic violence was a disqualifying offense for employment. 112. When reviewing the background results of each staff members on September 27, 2007, she realized domestic violence was a disqualifying offense and told a staff member that she was terminated until an exemption could be obtained from the Agency. 113. The Administrator did not obtain or attempt to obtain an exemption from the Agency for any of these four staff members before placing them in positions of providing direct care to vulnerable residents. 114. The Administrator has the responsibility to ensure the safety and well-being of the residents, and to provide a safe and decent living environment to residents. 115. The Administrator failed to fulfill the responsibilities to operate and maintain the facility in a manner mandated by law prohibiting certain disqualified individuals from providing personal services to residents. 116. The Administrator also failed to fulfill the responsibility for staff management, which included the performance of background screening of staff members to determine the eligibility to provide direct care. 117. The Respondent’s actions and/or inactions constituted a class I violation. 118. Class "I" 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 present an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or 20 practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the Agency, is required for correction. The Agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. A fine may be levied notwithstanding the correction of the violation. § 429.19(2)(a), Fla. Stat. (2007). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose an administrative fine against the Respondent in the amount of seven thousand five hundred dollars ($7,500.00). COUNT VI Assessment of Survey Fee 119. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 120. The Agency re-alleges and incorporates by reference Count IV through Count V. 121. In addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of the assisted living facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429,.28(3)(c), Florida Statutes, to verify the correction of the violations. § 429.19(7), Fla. Stat. (2007). 122. The Agency received a complaint about the Respondent. 123. In response to the complaint, the Agency conducted a complaint survey of the Respondent and its Facility. 124. As aresult of the complaint survey, the Respondent was cited for a deficiency. 125. The basis for the deficiency alleged in this Administrative Complaint relates to the complaint made against the Respondent and its Facility. 21 126. In addition, as a result of the above-stated violations, the Agency is required to conduct monitoring visits to verify the correction of these violations. 127. In this case, the Agency is authorized to seek a survey fee of five hundred dollars ($500.00) from the Respondent. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration respectfully requests the Court to assess a survey fee against the Respondent in the amount of five hundred dollars ($500.00). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to enter a final order granting the following relief: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of twenty five thousand dollars ($25,000.00). 3. Assess survey fees against the Respondent in the amount 9f one thousand dollars —_ ($1,000.00). 4. Enter any other relief that this Court deems just ay Thomas M. Hoeler, Senio' Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel The Sebring Building, Suite 330D 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 22 NOTICE The Respondent is notified that it has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 922-5873. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form have been served to: John E. Brenneis, Registered Agent, New Port Investors, LLC, 227 South Calhoun Street, Tallahassee, Florida 32308, by U.S. Certified Mail, r| Thomas M. Hoeler, Senior Af ormey Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel The Sebring Building, Suite 330D 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 23 Copies furnished to: John E. Brenneis, Registered Agent New Port Investors, LLC 227 South Calhoun Street Tallahassee, Florida 32308 (U.S. Certified Mail) Majorie H. Van Tassell, Administrator New Port Inn 6120 Congress Street, New Port Richey, Florida 34652 (U.S. Certified Mail) Kathleen Varga Facility Evaluator Supervisor Agency for Health Care Administration 525 Mirror Lake Drive North, Fourth Floor St. Petersburg, Florida 33701 (nteroffice) Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330D St. Petersburg, Florida 33701 (Interoffice) 24 COMPLETE THIS SECTION ON DELIVERY a Complete items 1, 2, ig 3 complete item 4 if Restricted Dolivery ig ego ye Y) ™ Print your name and addrese on the reverse 2 Ios aan etre So that we can Fetum the card Printed Name) @ Attach this card to the back wt yo piece, Ge faa oron the front if space permer 2 mal ‘ Me er pa 2 1. Article Addressed tor Te D. fa.del : Tes sed tor . very address differen item 1? (CD Yes Moayone * ‘ Voorn ASSe| j YES, opie seine DNo Wwe WY aN Hers Poe Tan = +. insured Mal = C.0.D. 4. Restricted Delivery? Extra Fea) ® Complete items 1, 2, _.1d 3. Also complete Iter 4 if Restricted Delivery is desired. ™ Print your name and address on the reverse So that we can return the card to you, @ Attach this card to the back of the mailpliece, or on the front if space permits. {t-aV-07 pelivery address differént from item 1? C1 Yes enter delivery address below: © No OQ Certified Mail © Express Mail D Registered Ci Return Receipt for Merchandise Ci insured Mail = C.0.D. - | 4 Restricted Delivery? (Extra Fes) ZOO TSIVA OO? 0220 0001 1589 2631 +h 4 2. Article Number ' (Transfer from PS Form 3811, February 2004 Domestic Retum Receipt 102595-02-M-1540 |

Docket for Case No: 08-000081