STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION a STATE OF FLORIDA, (KON AGENCY FOR HEALTH CARE O¥-15 ADMINISTRATION, Petitioner, v. Case No. 2007012256 ENCORE SENIOR LIVING III, LLC, d/b/a ENCORE SENIOR VILLAGE AT FORT MYERS, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter “the Agency”), by and through the undersigned counsel, and files this administrative complaint against the Respondent, ENCORE SENIOR LIVING IU, LLC, d/b/a ENCORE SENIOR VILLAGE AT FORT MYERS (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2007), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of TWENTY THOUSAND DOLLARS ($20,000.00) based upon four Class I deficiencies, pursuant to Section 429.19(2)(a) Florida Statutes (2007), and to assess a survey fee in the amount of FIVE HUNDRED DOLLARS ($500.00) pursuant to Section 429.19(7), Florida Statutes (2007), for a total sum of TWENTY THOUSAND FIVE HUNDRED DOLLARS ($20,500.00). 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, 120.60 and Chapters 408, Part II, and 429, Part J, 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 federal and state regulations, statutes and rules governing such facilities, Chapters 408, Part II, and 429, Part I, Florida Statutes (2007), Chapter 58A-5, Florida Administrative Code (2007). The Agency may deny, revoke, or suspend any license issued to an assisted living facility, or impose an administrative fine in the manner provided in Chapter 120, Florida Statutes (2007), Sections 408.815 and 429.14, Florida Statutes (2007). 5. The Respondent was issued a license by the Agency (License Number 9346) to operate a seventy (70) bed assisted living facility located at 9461 Healthpark Circle, Fort Myers, Florida 33908, and was at all times material required to comply with the applicable federal and state regulations, statutes and rules governing assisted living facilities. COUNT I The Respondent Failed To Discharge Residents Who Did Not Meet The Criteria For Continued Residency, Or Was Unable To Meet The Resident’s Needs, As Determined By The Facility Administrator Or Health Care Provider, In Accordance With Section 429.28(1), Florida Statutes In Violation Of Rule 58A-5.0181(5) Florida Administrative Code 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Pursuant to Florida law, if the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs, as determined by the facility administrator or health care provider, the resident shall be discharged in accordance with Section 429.28(1), Florida Statutes. Rule 58A-5.0181(5), Florida Administrative Code (2007). 8. On or about October 16, 2007 through October 18, 2007, the Agency conducted a Complaint Investigation Survey (CCR #2007-011580) of the Respondents facility. 9. Based on observation, record review, and interview, the facility failed to ensure four (4) of twelve (12) residents sampled continued to maintain residency even though the residents do not meet the criteria for continued stay as the facility is unable to meet resident needs. Resident number three (3) had multiple falls. The facility recognized and documented the residents’ inability to function without one-to-one care, yet failed to provide the care needed, or discharge the resident resulting in imminent danger and hospitalization of this. resident. Resident number five (5), Resident number six (6) and Resident number eleven (11) were unable to assist with transfer, yet were not discharged. 10. Resident number three (3) had ten (10) falls from September 4, 2007 to October 14, 2007 resulting in hospitalization for severe head trauma on October 15, 2007. The facility recognized the need for one-to-one staffing on October 12, 2007 yet failed to implement the staffing. Falls on October 13, 2007 and October 14, 2007 caused severe damage to Resident number three’s (3) head, face and neck. 11. Resident number three (3) was admitted to the facility on January 4, 2007. A review of the latest 1823 Health Assessment from June 7, 2007 indicated diagnoses of Alzheimer's, advanced middle dementia phase; multifactorial gait disorder; and depression. 12. A review on October 16, 2007, of the physician assessed level of care on the June 7, 2007 Health Assessment indicated this 83 year old resident "needs assistance with ambulation, bathing, dressing, grooming, and transfer.” Resident number three (3) is incontinent. The review of current medications on that same day listed twelve (12) oral medications, and two eye drops, given through medication assistance mode. Eating required supervision. 13. | Areview of medical records and the 2007 Incident report log on October 16, 2007 revealed Resident number three (3) had multiple falls on September 4, 2007; September 6, 2007; September 7, 2007; September 12, 2007; September 16, 2007 and September 18, 2007. After these six (6) falls, the physician's physical therapy request for evaluation and treatment was, placed on September 19, 2007 and therapy was started. A high back wheelchair with anti-tippers was delivered to Resident number three (3) on Sept 28, 2007. There was a fall documented on September 22, 2007, followed by another on October 1, 2007. After the October 1, 2007 fall, Resident number three (3) complained of "pain all over" and was sent to the Emergency Room for evaluation. Resident notes for that day reveal Resident number three (3) was sent to a local Emergency Room for a full body x-ray and retumed to the facility at 11:30 am. Resident number three (3) was started on medication for a Urinary Tract Infection diagnosed while in the Emergency Room on October 1, 2007. 14. A review of the resident notes for October 12, 2007 at 12:45 p.m. indicated a meeting between the Program Director/Director of Nursing, and the spouse, who is Resident number three’s (3) Power of Attorney. The resident notes document the Program Director/ Director of Nursing explained to the spouse the.resident may need alternate care in a skilled facility or a private sitter. The meeting notes quote the spouse as saying, "We will discuss this when I recover from pending surgery.” 15. Resident number three (3) fell again at 4:00 am. the morning of October 13, 2007, followed by another fall on October 14, 2007 at 6:40 am. These falls resulted in severe head trauma with bleeding and finally hospitalization on October 15, 2007. 16. For each of the falls which occurred between Sept 4, 2007 and October 14, 2007, the Resident Notes and incident report documentation indicate the physician and Resident number three’s (3) spouse were contacted. 17. In an interview with the Director of Nursing on October 16, 2007 at 3:30 p.m., the Director of Nursing stated she had asked to speak to Resident number three’s (3) spouse because, "T felt that we could not take care of her anymore, with all the falls she was having." When the Director of Nursing was asked if the Administrator was aware of the content of this conversation with the spouse on October 16, 2007, she answered "yes." This information was verified again during an October 17, 2007 interview at 3:00 p.m. When asked why the facility had not either discharged Resident number three (3) or provided one-on-one care, the Director of Nursing stated, "It is not a service Encore offers." 18. An interview with the Administrator on October 17, 2007 at 3:45 p.m. verified the administrator had been told about the discussion between Resident number three’s (3) spouse and the Director of Nursing, and the administrator had acknowledged the spouse's desire to re- visit the issue after the spouse's hospitalization. The administrator repeatedly verified that one- on-one service was not provided by this assisted living facility, only fifteen (15) minute checks are maximum supervision available. He also verified the fifteen (15) minute checks were not authorized or provided until after the October 14, 2007 fall. 19. A record review on October 16, 2007, revealed Resident number three (3) was taken by Emergency Medical Services to a local hospital on October 15, 2007 at 8:35 a.m. 20. On October 16, 2007, a review of the Emergency Encounter Document from the hospital Emergency Room at 9:18 am. on October 15, 2007, revealed intravenous fluid was started at 10:10 a.m. and the neurological exam documented, "disorientation, slurred speech and anxious behavior, as well as indicators of abuse/neglect.” The documentation stated there were "contusions in various stages of healing, and delay of days before seeking treatment." The nursing care plan focused on pain; skin integrity; impaired physical mobility, and impaired mental status. There was a social service and case manager referral documented. 21. The Emergency Room physician's exam on October 15, 2007 documented an elevated blood pressure (172/55), a pulse of 105, swelling on the right side of the forehead, extensive bruising involving the face and both eyes, mucous membranes very dry (sign of dehydration), mild swelling and extensive bruising of the neck, extensive bruising of the upper chest and numerous skin tears. The Emergency Room physician's report revealed no fractures, and presence of an elevated white cell count and red cells in the urine, indicating a urinary tract infection. The resident's Prothrombin time was elevated at 15, with an International Normalization Ratio of 1.15. There was an elevated Blood Urea Nitrogen of 33 and a creatinine of 1.6, and a low hemoglobin level of 9.6. No fractures were identified and an x-ray of the head was “unremarkable.” 22. Resident number three (3) was admitted to the hospital with diagnoses of frequent falls, dehydration, renal insufficiency, and Alzheimer's. Resident number three’s (3) admission history and physical notes by the physician on October 15, 2007, reviewed by surveyor on October 16, 2007, documented a large hematoma on the right forehead, no evidence of any subdural hematoma, and documentation of metastatic lesions in the area of Resident number three’s (3) thoracic spine. 23. An observation of Resident number three (3) in the resident's hospital room at 10:00 a.m. on October 16, 2007 found the resident was in bed receiving intravenous fluid. There was a large hematoma on the right side of his/her forehead. He/She had multiple bruises of varying dark and light purple, green and yellow colors on his/her face, neck, shoulder, chest, and back. There was a large bruise and swelling of the left knee area and an abrasion area on his/her left leg. The bruising across his/her neck was a swatch about 1 and a half to 2 inches wide. There were several skin tears over the body and a small, open (Stage II) pressure ulcer above the coccyx area. Resident number three (3) was able to answer "no" (somewhat blurred) that he/she did not have pain. His/Her eyes were swollen, but he/she could open them slightly and seemed to be visually aware of the persons in his/her room. He/She appeared to be anxious and resisted slightly when he/she was moved on his/her side by the hospital staff to allow an inspection of his/her back. | 24. On October 17, 2007 at 4:30 p.m., Resident number five (5) was observed lying in bed. He/She did not respond to questions or commands. The Certified Nursing Assistant stated Resident number five (5) is not consistent with assisting with his/her activities of daily living for transfer, dressing or toileting. There are days when the resident even needs to be fed. 25. On October 17, 2007 at 4:40 p.m., Resident number six (6) was observed lying on the floor in his/her room. His/Her mattress is on the floor. He/She was on the floor with his/her knees bent, his/her pants were below his/her knees and his/her brief exposed. Staff picked him/her up and placed him/her on the mattress and stated his/her brief needed to be changed. Once Resident number six’s (6) brief was changed by the staff and his/her pants pulled up he/she was assisted to the wheel chair. Resident number six (6) did not follow commends to stand straight (place his/her feet flat on the floor) to privet into the wheel chair. His/Her knees remained bent with the staff holding him/her under his/her arms and lifted and placed the Resident in the wheel chair. Resident number six (6) was observed to be unable to assist with transfer. 26. On October 18, 2007 at 9:40 a.m., interview with staff revealed Resident number eleven (11) required total care with his/her activities of daily living for transfer, toileting or dressing. 27. The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented 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. 28. Pursuant to Section 429.19(2)(a), Florida Statutes (2007), the Agency shall impose an administrative fine for a Class I violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 29. The Agency provided the Respondent with a mandatory correction date of November 1, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2007). COUNT II The Respondent Failed To Provide Enough Qualified Staff To Provide Resident Supervision And Arrange Services For Resident Scheduled And Unscheduled Needs And Care In Violation Of Rule 58A-5.019(4)(b), Florida Administrative Code 30. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 31. Pursuant to Florida law, notwithstanding the minimum staffing requirements specified in paragraph (a) of Rule 58A-5.019, Florida Administrative Code, all facilities, including those composed of apartments, shall have enough qualified staff to provide resident supervision, and to provide or arrange for resident services in accordance with the residents scheduled and unscheduled service needs, resident contracts, and resident care standards as described in Rule 58A-5.0182, Florida Administrative Code. Rule 58A~-5.019(4)(b), Florida Administrative Code. 32. On or about October 16, 2007 through October 18, 2007, the Agency conducted a Complaint Investigation Survey (CCR #2007-011580) of the Respondent’s facility. 33. Based on record review and interview, the facility failed to provide enough qualified staff to provide resident supervision and arrange services for resident scheduled and unscheduled needs and care in one (1) of four (4) residents sampled, Resident number three (3), placing the resident in imminent danger resulting in multiple falls and severe head trauma with hospitalization. 34. Resident number three (3) had ten (10) falls from September 4, 2007 to October 14, 2007 resulting in hospitalization for severe head trauma on October 15, 2007. The facility recognized the need for one-to-one staffing on October 12, 2007, yet failed to implement the staffing. Falls on October 13, 2007 and October 14, 2007 caused severe damage to Resident number three’s (3) head, face and neck. 35. All nights 11 p.m.-7 a.m. shift: One (1) Quality of Life Specialist functions as the night supervisor and circulates throughout five (5) cottages. One (1) Quality of Life Specialist staff person functions as a caregiver in each cottage. 36. Weekday evening 3 p.m-11 p.m. shift: One (1) Licensed Practical Nurse 3 p.m.- 11 p.m. supervisor circulates throughout five (5) cottages. One (1) Quality of Life Specialist functions as a caregiver in each cottage. One (1) Quality of Life Leader functions as a caregiver in each cottage. 37. Weekend evening 3 p.m.-11 p.m. shift: One (1) Quality of Life Leader functions as the evening supervisor, circulates through five (5) cottages and works 7:00 p.m. to 7:00 a.m. A Certified Nursing Assistant covers half evenings and half nights. One (1) Medical Technician also assists as a caregiver in each cottage. One (1) Quality of Life Specialist functions as a caregiver in each cottage. One (1) Quality of Life Specialist who works from 4:00 p.m. to 8:00 p.m. functions as a caregiver in each cottage. 38. Week days 7 a.m. - 3 p.m. shift: One (1) Licensed Practical Nurse 7 a.m. - 3 p.m. - supervisor circulates throughout five (5) cottages, works 7:00 a.m. to 7:00 p.m. and covers half of days and half of evenings. One (1) Quality of Life Specialist functions as a caregiver in each cottage. One (1) Quality of Life Leader functions as a caregiver in each cottage. One (1) Licensed Practical Nurse works with physicians and hospice. 39. | Weekend day 7 a.m. —3 p.m. shift: One (1) Licensed Practical Nurse 7 a.m. ~ 3 p.m. supervisor circulates throughout five (5) cottages, works 7:00 a.m. to 7:00 p.m. and covers half of days and half of evenings. One (1) Quality of Life Leader functions as a caregiver in each cottage. One (1) Quality of Life Specialist functions as a caregiver in each cottage. One (1) Quality of Life Specialist who works 12:00 p.m. to 4:00 p.m. functions as a caregiver. 40. Resident number three (3) had a fall at 4:00 a.m. on Saturday October 13, 2007. Facility notes document the resident was very confused the rest of the day, crying a lot, anxious, serious bruising throughout the body and a large hematoma on the head. When interviewed on October 17, 2007 at 2:35 p.m., Staff number fifteen (15) stated Resident number three (3) was so anxious she could not even give a shower; instead, she gave a bed bath to try to calm Resident number three (3) down. The spouse visited from 9:00 a.m. to around 5:00 p.m. that day. When interviewed on October 17, 2007 at 11:30 a.m., Staff number three (3) stated, "The resident kept trying to get up from the sofa, and staff had to constantly sit with the resident to prevent more falls." When interviewed on October 17, 2007 Staff number three (3) and Staff number fifteen (15) both agreed a staff person was required to continuously watch Resident number three (3) when the spouse was not present to protect him/her from other injury. Further staff took turns with Resident number three (3), but the unscheduled needs of Resident number three (3) created a stress on the staff's time in that they had to care for other residents. 41. Nights only had one caregiver in the unit except when the circulating supervisor 10 came to assist. The supervisor on nights is not a licensed nurse. 42. Resident number three (3) fell again at 6:40 a.m. on Sunday, October 14, 2007. Interviews with staff verified Resident number three (3) was even more confused and agitated on Sunday than on Saturday, October 13, 2007 and continued to be extremely anxious, was crying a lot, repeatedly tried to get out of the wheelchair, and required constant monitoring. The bruises were increasing. One nursing assistant, Staff number thirteen (13), indicated Resident number three (3) would get even more agitated when the spouse was not there. 43. . When called on October 13, 2007 at 4:30 a.m., the on-call nurse for the weekend did not pick up the phone and did not come to the facility to assess the need for outside emergency evaluation. This on-call nurse was re-called at 7:30 a.m. and spoke to the 7:00 a.m.- 7:00 p.m. nurse who was instructed to do neurological checks every two hours and apply ice. Neurological checks were only documented as being done October 13, 2007 at 7:30 a.m., 9:30 am. and 11:30 am. The 7:00 am. to 7:00 p.m. nurse did not send the resident out for emergency evaluation, did not continue the neurological checks as instructed and did not make arrangements to provide an extra staff person to do one-on-one with a physically, cognitively, and psychologically demanding resident whose unscheduled needs created burdens on the weekend staffing on the unit. 44. Fifteen minute checks were not started by the facility staff until after the second fall on October 14, 2007 at 7:00 a.m. Although cottage staff recognized the need for constant supervision and stayed with Resident number three (3) on and off as much as possible during the day shift on October 13, 2007, Resident number three (3) was not sent to the hospital for evaluation until October 15, 2007 at 8:35 a.m. when the Monday nurse called 911. 45. On October 17, 2007 at 3:00 p.m., the Program Director/ Director of Nursing stated, "It is not Encore's policy to provide one-on-one." ul 46. Ina meeting at 5:00 p.m. on October 17, 2007 with the facility administrator and a Regional Corporate Consultant, the Corporate Consultant stated, "One-on-one is a corporate policy. I guess for every facility in Florida except the Ft. Myers facility." 47. The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented 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. 48. Pursuant to Section 429.19(2)(a), Florida Statutes (2007), the Agency shall impose an administrative fine for a Class I violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 49. The Agency provided the Respondent with a mandatory correction date of November 1, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2007). COUNT UT The Respondent Failed To Provide Care And Services Appropriate To The Needs Of Residents Accepted For Admission To The Facility In Violation Of Rule 58A-5.0182, Florida Administrative Code 50. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 51. Pursuant to Florida law, an assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Rule 58A-5.0182 Florida Administrative Code. 12 52. Onor about October 16, 2007 through October 18, 2007, the Agency conducted a Complaint Investigation Survey (CCR #2007-011580) of the Respondent’s facility. 53. Based on observations, record review, and interviews, the facility failed to provide care and services appropriate to meet the needs of one (1) out of twelve (12) residents sampled, Resident number three (3). Lack of one-to-one care identified on October 12, 2007 resulted in imminent danger, severe head trauma and hospitalization to Resident number three (3). 54. During the weekend of October 12, 2007 through October 15, 2007, Resident number three (3), who was located in Cottage number one (1) had two serious falls. The first fall occurred on October 13, 2007 at 4:00 a.m., and the second on October 13, 2007 at 6:45 a.m. These two falls followed a series of eight other falls since September 4, 2007 and resulted in severe head trauma and hospitalization. 55. The last 1823 assessment was completed on June 7, 2007 prior to the start of the resident’s declining status based on falls. Interviews with thirteen (13) staff members who worked in Cottage number one (1) during the weekend of October 13, 2007 through October 15, 2007 indicate Resident number three (3) is very unsteady on his/her feet and has a difficult time even staying in the wheelchair without someone to be in constant observation. Resident number three’s (3) Alzheimer's is classified as in the middle stage. Resident number three (3) has a gait disturbance which is interfering with the ability to safely walk around the unit and falls are also now occurring when getting out of bed. The records indicate a new, high back wheelchair was obtained on September 28, 2007. 56. A review of the resident notes for October 12, 2007 at 12:45 p.m. indicates a meeting between the Program Director/ Director of Nursing, and the spouse who is Resident number three’s (3) Power of Attorney. The resident notes document the Program Director/ Director of Nursing explained to the spouse that Resident number three (3) may need alternate care in a skilled facility or a private sitter. The meeting notes quote the spouse as saying, "We will discuss this when I recover from pending surgery." 57. In an interview with the Director of Nursing on October 16, 2007 at 3:30 p.m., the Director of Nursing stated she had asked to speak to Resident number three’s (3) spouse because, "T felt that we could not take care of him/her anymore, with all the falls he/she was having." When the Director of Nursing was asked if the Administrator was aware of the content of this conversation with the spouse on October 16, 2007, she answered "yes." This information was verified again during an October 17, 2007 interview at 3:00 p.m. When asked why the facility had not either discharged Resident number three (3) or provided one-on-one care, the Director of Nursing stated, "It is not a service Encore offers." 58. An interview with the Administrator on October 17, 2007 at 3:45 p.m. verified the Administrator had been told about the discussion between Resident number three’s (3) spouse and the Director of Nursing, and the Administrator had acknowledged the spouse's desire to re- visit the issue after the spouse's hospitalization. The Administrator repeatedly verified that one- on-one service was not provided by this assisted living facility and that only fifteen (15) minute checks are the maximum supervision available. He also verified the fifteen (15) minute checks were not authorized or provided until after the October 14, 2007 fall. 59. A record review indicates Resident number three (3) started Physical Therapy on September 19, 2007, but no records are available in Resident number three’s (3) record to review the evaluation of the therapy services in terms of meeting goal. 60. A review of Resident number three’s (3) records on October 16, 2007 reveal the resident has had a urinary tract infection since September 4, 2007. The Medication Observation Record reveals Resident number three (3) was placed on Bactrim starting October 10, 2007 after a diagnosis was made during an Emergency Room visit on October 1, 2007. Resident number three (3) is incontinent, but the incontinence is not new. 61. | When Resident number three’s (3) back was observed in the hospital room, there was a Stage 2 Pressure ulcer noted on the area above the coccyx. When the nurses and caregivers from Cottage number one (1) were asked about the presence of an open area during the interviews, no one was aware of one. They did say they were using barrier creme because they had seen a reddened area in that spot. 62. During an interview with Resident number three’s (3) physician on October 17, 2007, the physician stated she was "not even sure that the facility is prepared to care for the resident as the resident continues with all these falls.” 63. The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented 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. 64. Pursuant to Section 429.19(2)(a), Florida Statutes (2007), the Agency shall impose an administrative fine for a Class I violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 65. The Agency provided the Respondent with a mandatory correction date of November 1, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2007). COUNT IV The Respondent Failed To Comply With The Resident’s Bill Of Rights In Violation Of Section 429.28(1), Florida Statutes (2007) 66. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 67. Pursuant to Florida law, no resident of a 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. Section 429.28(1), Florida Statutes (2007). 68. Onor about October 16, 2007 through October 18, 2007, the Agency conducted a Complaint Investigation Survey (CCR#2007-011580) of the Respondent’s facility. 69. Based on observation, record review, and interviews, the facility failed to comply with the Resident Bill of Rights as related to the right to have a safe and decent living environment free from neglect and access to adequate and appropriate health care consistent with established and recognized community standards for one (1) out of twelve (12) residents sampled, Resident number three (3), which resulted in imminent danger, severe head trauma, and hospitalization. 70. Resident number three (3) had ten (10) falls from September 4, 2007 to October 14, 2007 resulting in hospitalization for severe head trauma on October 15, 2007. The facility recognized the need for one-to-one staffing on October 12, 2007, yet failed to implement the staffing. Falls on October 13, 2007 and October 14, 2007 caused severe damage to Resident number three’s (3) head, face and neck. 71. Resident number three (3) was admitted to the facility on January 4, 2007. The resident resided in Cottage number one (1), a cottage designated to house those residents the facility considers to be least independent in terms of functional mobility, most advanced in terms 16 of cognitive decline, and most dependent on caregivers for safety and daily oversight needs. A review of the census in Cottage number one (1) was twelve (12) from 7:00 a.m. on October 12, 2007 through 8:35 a.m. on October 15, 2007. Supervisor staffing for the nights of the falls did not indicate the supervisors were nurses who were licensed to assess residents for care and service needs and on October 13, 2007 the supervisor was a Certified Nursing Assistant unable to reach a nurse on call. 72. A teview of the resident's notes from September 4, 2007 through October 16, 2007, reveals a pattern of falls, ten (10) since September 4, 2007. 73. In Resident notes examined on October 16, 2007, the 4:00 a.m. resident notes from October 13, 2007, indicate Resident number three (3) was "found on the floor in bedroom beside bed during 4:00 a.m. rounds." The notes reveal a "reopened" skin tear on the left arm, bruising on multiple areas of the body, bruising in right upper forehead with redness on right side of face, and a skin tear on the right side of forehead. The note also documents Resident number three’s (3) spouse, when called about the fall, told Employee number two (2) that "(spouse) did not think that it was necessary to send the resident out." 74. On October 17, 2007 at 12:10 p.m., an interview was held with Employee number two (2), a Certified Nursing Assistant night supervisor. Employee number two (2) worked 11:00 p.m. through 7:00 a.m. on Friday night and 7:00 p.m. to 7:00 a.m. on Saturday night. The staff, an on-site supervisor in charge of five cottages at the time of the October 13, 2007 fall, indicated the nursing assistant called her at 4:00 a.m. on October 13, 2007 to request the supervisor come to Cottage number one (1) to help get Resident number three (3) back to bed after a fall. The supervisor stated when she arrived she discovered the upper part of Resident number three’s (3) head was under the bed and "the resident was scootching to try to get out from under the bed." The supervisor stated she helped the nursing assistant rotate Resident number three’s (3) head and body to maneuver the resident under the bedframe, to free Resident number three (3) from under the bed. The supervisor stated after Resident number three (3) was off the floor, Resident number three (3) would not stay in bed and was upset, so the decision was made to put Resident number three (3) in the wheelchair, saying, "we tried repeatedly to help keep the resident in her chair so the resident would not fall again." The incident report documentation reviewed on October 16, 2007, indicates the on-call licensed nurse, physician and resident's spouse were called. When asked if she or the nursing assistant put any ice on the area, she said "no." 75. During an interview with Employee number six (6) at 2:00 p.m. on October 17, 2007, she stated she worked Friday night 11:00 p.m. to 7:00 am. She stated, "they sent the resident out before when the resident fell the beginning of October, but they did not do that this time." 76. During an interview at 12:00 p.m. on October 17, 2007, Employee number ten (10), a Licensed Practical Nurse, identified herself as the administrative on-call nurse for the entire weekend from Friday evening, October 12, 2007 to Monday morning, October 15, 2007. Employee number ten (10) stated, "I did not hear my cell phone ring when they called at 4:30 am., but I did answer when they recalled at 7:15 am.” Employee number ten (10) stated she instructed the licensed nurse, Employee number one (1), on at that time to, "do neuro checks every two (2) hours and apply ice to what they described as a bump on the head." Employee number ten (10) stated they had recently started to put Resident number three (3) to bed later, so Resident number three (3) would not try to get up as much during the night. When asked if she came in to check on Resident number three (3) at any time on October 13, 2007, she answered "no, but I did call in three times and they told me the resident kept trying to get up out of the chair." 77. During an interview on October 17, 2007, Employee number one (1), a Licensed Practical Nurse, identified herself as the nurse working from 7:00 a.m. to 7:00 p.m. on October 13, 2007. The nurse stated she completed and documented an assessment on Resident number three (3), who was in a wheelchair, at 7:20 am. This assessment was three (3) hours and twenty (20) minutes after the night shift fall and the first completed by a licensed nurse since Resident number three (3) was found with his/her head under the bed. Employee number one (1) stated she, "started an observation sheet and put it in the chart.". Employee number one (1) reported that because Resident number three (3) was trying to get out of the chair all morning, she put Resident number three (3) on the sofa, with legs up for most of the day. She stated, "The resident's husband came in around 11:00 a.m., and the resident still kept trying to get up from the sofa" and "before the husband came and after he left at 5:00 p.m., we all had to take turns sitting with her from time to time." Employee number one (1) stated, "The resident's pulse went down throughout the day", "she was fussing at her husband all day","she didn't eat that well" and "she went to bed around 7:00 p.m." 78. The Neurological Observation Record is facility form #NUR00013 (dated April 19, 2004) which is by facility policy to be completed for three (3) days following a fall. A review of the Neurological Observation Record for Resident number three (3) at 12:45 p.m. on October 17, 2007, confirmed the resident's Neurological checks were completed on October 13, 2007 at 7:30 am., 9:30 am., and 11:30 a.m. Resident number three’s (3) blood pressure was 183/86 and pulse 98 at 7:30 am.; blood pressure was 147/74 and pulse 87 at 9:30 am., and blood pressure was 151/68 and pulse 81 at 11:30 a.m. Resident number three (3) was listed on each of the three checks as having pupils that were equal and reacting to light; speech clear; following commands and responding to voice and light touch. There were no other entries for Neurological Observation recording on Resident number three’s (3) record. There are no initials/signatures on the entries to identify the name and credentials of the staff person(s) entering information on the form for the three times the checks were completed on October 13, 2007. Each form has room for only three entries. 79, After review on October 17, 2007 at 12:45 p.m., of Resident number three’s (3) Neurological Observation Records for the remainder of the weekend, the Director of Nursing confirmed she was, "unable to locate any other of the sheets.” 80. | Employee number thirteen (13), a Nursing Assistant working from 12:00 p.m. to 8:00 p.m. on October 13, 2007, stated on October 18, 2007 "the resident was acting fine on Saturday." She related that she saw "bruising" on Resident number three’s (3) face and Resident number three’s (3) right eye was closed. 81. Employee number eight (8) stated on October 17, 2007, she worked from 7:00 a.m. on Saturday and 7:00 p.m. to 11:00 p.m. on Sunday. She stated on Saturday October 13, 2007, "I saw the bruising on the right side of her face on Saturday evening and there was blood on her face, like the face had been scraped." She stated "she was so confused I couldn't even give her a shower; I had to give her a bed bath." 82. Employee number seven (7), a caregiver on Saturday October 13, 2007, stated on October 17, 2007, "I just saw the bruising on her face and neck on Saturday evening, but it looked to me like the resident was having a problem with vision. The resident was reaching at things, like she couldn't see things." Employee number seven (7) also commented "the husband uses a gate belt when he gets her up." 83. There were no resident notes documented after the 7:00 a.m. entry on October 13, 2007, until a second fall is recorded on October 14, 2007 at 6:40 a.m. 84. Employee number two (2) was again on night duty on October 13, 2007. The Resident notes stated some of the previous skin tears had reopened, and Resident number three (3) complained of "minor discomfort in the right shoulder." The Notes continued to say the 20 nurse on-call, the physician and Resident number three’s (3) spouse were notified and the resident was "monitored" the rest of the shift. 85. During an interview on October 17, 2007 with Employee number two (2), the unlicensed night supervisor, she stated Resident number three (3) was again caught under the bed, and she and the nursing assistant had to get Resident number three (3) out and help Resident number three (3) to the wheelchair. She stated "the resident's bottom lip was bleeding, skin tears were opened, there was more redness to the face, and I saw a bruise on the right shoulder." "When I left the resident was at the table eating.” 86. A resident notes written documentation, entered at 7:00 a.m. on October 14, 2007, by the on-coming shift Licensed Practical Nurse, Employee number one (1), identified Resident number three (3) as “agitated, kept trying to get out of the wheelchair.” She wrote the "staff instructed to start 15 minute checks.” 87. In an interview with Employee number one (1) on October 17, 2007, the nurse stated "The resident was very agitated all day. She was trying to get up more. { even brought her into the nurse’s station with me. Her agitation started to get real bad at lunch.” 88. An interview with Employee number thirteen (13), a nursing assistant working 12:00 p.m. to 8:00 p.m. on October 14, 2007, stated during an interview on October 18, 2007 at 3:00 p.m., that "right after lunch on Sunday she was not ok. She was agitated and there is no way anyone could say she was not in pain with the bruising she had.” "I asked the nurse to give her something for the pain and was told there was nothing ordered." "I never saw bruising wrapped around the neck. I saw bruising on the neck, but it was on the right side." She went on to say "I have been working here 6 weeks and I never saw her act like the way she did on Sunday." She stated "myself and another aide put ice on her bruises on her face." 89. | Employee number eight (8), a Certified Nursing Assistant working from 7:00 p.m. 21 to 11:00 p.m. on October 14, 2007, stated during an interview on October 17, 2007 that "the resident was more confused. She had bruises on the neck, shoulder, ankle, and upper chest on October 14, 2007 “and "both eyes were swollen. The resident's bruise on her neck extended down to her chest." She stated she told the nurse she thought Resident number three (3) was in pain, and said she sat with Resident number three (3) from 7:00 p.m. to 11:00 p.m., doing one- on-one with the resident. 90. | Employee number five (5) stated during an interview on October 17, 2007, that "The resident looked like she was in pain on Sunday.” 91. . In-an interview with Employee number three (3) on October 17, 2007 at 12:45 p.m., the resident's physician, she stated, "I got called about both falls over the weekend, but they did not tell me the extent of the bruising. I was not aware of the severity of the bruising until I saw her in the Emergency Room on October 15, 2007." She stated she "was surprised when (she) saw the resident in the hospital ER, because the bruising was a lot worse than they told me over the telephone.” Resident number three’s (3) physician stated she "was never told about the hematoma during the calls I received." 92. | When interviewed on October 17, 2007 at 12:40 p.m., related to what constituted a"15 minute check", the Program Director stated "it means the staff looks at the resident every 15 minutes just to make sure they are safe and where they are supposed to be." When shown the check sheet which had been used for Resident number three (3) from 7:00 a.m. on October 14, 2007 through to 8:30 a.m. on October 15, 2007 when Resident number three (3) was taken to the hospital, the Program Director stated, "This is an elopement sheet. They did the wrong form. They should have done the Neuro Check Sheet.” 93. A Behavior Monitor sheet (NURO0018 date April 29, 2004) was started. Two documentations were entered for October 14, 2007: Crying/weeping and uncooperative was 22 documented for the 7 a.m. -3 p.m. shift on that day. Uncooperative, crying/weeping, scratching, unsteady gait, and tremors were documented for the 3 p.m. -11 p.m. shift. There were no entries after that date and time. At the top of the form, directions state: "When an atypical behavior occurs, initiate use of this form using the Red Flag System. Use this form for one week. Fill in each section each shift. Nurse to review this form regularly and provide appropriate resident care interventions.” 94. The Licensed Practical Nurse who worked 7:00 a.m. to 7:00 p.m. on October 14, 2007, noted she called Resident number three’s (3) physician and got an order to put Resident number three’s (3) bed on the floor. 95. An interview on October 17, 2007 with Employee number eleven (11), a nursing assistant, stated "I worked last on Wednesday, October 10, 2007 and when I left Resident number three (3) was in perfect condition. When I came on to work at 7:00 p.m. on October 14, 2007, I did not even recognize her. Her face was swollen and I questioned the nurse about pain. Both her eyes were swollen and there was a bruise on her neck and her knee cap was swollen. She slept all of Sunday night." "When the day nurse came on Monday we conferred and decided to just call the Emergency Medical Services to get her checked." Employee number eleven’s (11) notes from Sunday evening described Resident number three (3) as “very badly bruised." "The resident had a huge bump on her forehead, both eyes were swollen shut, there was a bruise around the resident's neck, and both knees were swollen" and also "the resident was not sent out to the hospital for further observation because her husband refused to let the resident go out.” Employee number eleven’s (11) notes for the rest of the night state "resident appeared to be sleeping throughout the night, and caregiver and night supervisor kept'a close watch on the resident." “Resident stayed in bed the entire night and appeared to be peacefully sleeping." 96. During an interview on October 17, 2007 with the weekend on-call nurse, 23 Employee number ten (10), she stated when the staff called her on Sunday morning after the second fall, "they told me she had a split lip and a little bit of swelling.” "I told them to get an order for the bed and mattress on the floor, do behavior monitoring, and do 15 minute checks." Employee number ten (10) stated "Our policy here is they have a right to fall and we just have to redirect." She indicated she did not go in to check Resident number three (3) "at any time over the weekend." 97. On October 15, 2007, the resident notes documentation indicates an entry by the nurse, Employee number nine (9), who had not seen Resident number three (3) since her last shift ended at 3:30 p.m. on October 12, 2007. In an interview on October 17, 2007 at 2:50 p.m., on Friday when she left, "the resident was her normal, confused self." The Monday morning 9:00 a.m. entry indicates "assessment of the resident noted a large swelling to right side of head with purplish discoloration noted." "The resident's left side looks almost flattened while right side has large purple swelling area with small serosanguinous drainage.” The entry noted both eyes shut with purple discoloration to both eyes. Both eyes were checked with a penlight and blood was noted in both eyes. Purple color bruising was noted to the face, neck, and chest. Further assessment revealed swelling to the left knee cap and a small scrape to the left leg. The Administrator was notified at 8:15 a.m., who came and looked at Resident number three (3) and agreed that the resident should be sent to the Emergency Room for further evaluation. Emergency Medical Services was called at 8:30 a.m. and arrived at 8:35 a.m. and took Resident number three (3) to the Emergency Room. . 98. During an interview on October 16, 2007 at 5:00 p.m., the Administrator stated “that October 15, 2007 was the first that I saw her." "I was in the facility on Saturday morning, October 13, 2007 but I was told she would be ok." 99. Acopy of a written attestation from Employee number three (3), dated on October 24 16, 2007, was reviewed at 8:45 a.m. on October 18, 2007 by the Program Director/Director of Nursing. Employee number three (3) in the written attestation indicated on October 13, 2007 after the first of two weekend falls, "in my professional opinion the resident didn't need to go to the hospital." "Later I went to the office of the Administrator and advised him of the situation." "T assured him if anything changed with the resident (like vitals or behavior), I would send her out.” 100. The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented 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. 101. Pursuant to Section 429.19(2)(a), Florida Statutes (2007), the Agency shall impose an administrative fine for a Class 1 violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 102. The Agency provided the Respondent with a mandatory correction date of November 1, 2007. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2007). COUNT V Assessment of Survey Fee 103. The Agency re-alleges and incorporates paragraphs one (1) through one hundred three (103) as if fully set forth herein. 104. The Agency conducted a Complaint Investigation Survey (CCR #2007-011580) 25 on October 16, 2007 through October 18, 2007. 105. As a result of the Agency’s Complaint Investigation Survey (CCR #2007- 011580), the Respondent was cited for four (4) Class I deficiencies. 106. Pursuant to Section 429.19(7), Florida Statutes (2007), the Agency is authorized to, in addition to any administrative fines, assess a survey fee equal to the lesser of one-half of the facility’s biennial license and bed fee, or five hundred dollars ($500.00), 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 for monitoring visits conducted under 429.28(3)(c), Florida Statutes (2007), to verify the correction of the violations. 107. In this case, the Agency is authorized to seek a survey fee in the amount of FIVE HUNDRED DOLLARS ($500.00). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration intends to assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00), pursuant to Section 429.19(7), Florida Statutes (2007). _ CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: 1. Enter 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 THOUSAND DOLLARS ($20,000.00). 3. Assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00). 26 4. Order any other relief that this Court deems just and appropriate. Respectfully submitted this g@Ad, day of FaLeLiailfe , 2008. Yonorley J aie Senior Attorney Florida Bar No. 0355712 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 338-3203 NOTICE RESPONDENT IS NOTIFIED THAT IT/HE/SHE HAS A RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. THE RESPONDENT IS FURTHER NOTIFIED THAT IT/HE/SHE HAS THE RIGHT TO RETAIN AND BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED ELECTION OF RIGHTS. ALL REQUESTS FOR HEARING SHALL BE MADE AND DELIVERED TO THE ATTENTION OF: THE AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, BLDG #3, MS #3, TALLAHASSEE, FLORIDA 32308; TELEPHONE (850) 922-5873. THE RESPONDENT IS FURTHER NOTIFIED THAT IF A REQUEST FOR HEARING 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 BY THE AGENCY. 27 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form has been served to: Randy Reben, Administrator, Encore Senior Living III, LLC d/b/a Encore Senior Village at Fort Myers, 9461 HealthPark Circle, Fort Myers, Florida 33908, by U.S. Certified Mail, Return Receipt No. 7006 2760 0003 1536 6558, and Corporation Service Company, Registered Agent for Encore Senior Living III, LLC d/b/a Encore Senior Village at Fort Myers, 1201 Hays Street, Tallahassee, Florida 32301, by U.S. Certified Mail, Return Receipt No. 7006 2760 0003 1536 6565, on this ash of FebAtLlaty. : , 2008. Lard Baley ton Senior Attorney Florida Bar No. 0355712 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 338-3203 28 Copies furnished to: Randy Reben, Administrator Encore Senior Living HI, LLC d/b/a Encore Senior Village at Fort Myers 9461 HealthPark Circle Fort Myers, Florida 33908 (US. Certified Mail) Mary Daley Jacobs, Senior Attorney Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (Interoffice Mail) Corporation Service Company, Registered Agent for Encore Senior Living II], LLC d/b/a/ Encore Senior Village at Fort Myers 1201 Hays Street Tallahassee, Florida 32301 (U.S. Certified Mail) Kriste Mennella Field Office Manager Agency for Health Care Administration 2295 Victoria Avenue, Room 340A Fort Myers, Florida 33901 (Interoffice Mail) 29 eo ° ~ - a . ° 3 SENDER: COMPLETE THIS SECTION } COMPLETE THIS SECTION ON DELIVERY . ®@ Complete items 1, 2, and 3. Also complete — "item 4 if Restricted Delivery is desired. = 1 ll Print your name and address on the reverse i so that we can return the card to you. + ™ Attach this card to the back of the mailpiece, or on the front if space permits. 1 il Aateeed a: 20077772 78 © : Kandy Reben, Ad wna strater Encore Senior Village T4460 flea (4h Park Circle [Fort Myses, Flevids« B. Received by { Printed Name) . Dg n CH A A] D. Is delivery address different from item 1? 0 Yes if YES, enter delivery address below: ONo 3. Service Type CO Certified Mall ©) Express Mail C Registered 1 Return Receipt for Merchandise Ci insured Mail . (1.0.0. 4. Restricted Delivery? (Extra Fee) _ 2 Article Number 700b 2?b0 0003 153b 6558 : (Transfer from service label) F S060 9000 89082) :—: ee_—— : PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540

Docket for Case No: 08-001505