STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE () y: o q 0 » ADMINISTRATION, Petitioner, vs. AHCA No. 2008002781 - ORLANDO LUTHERAN TOWERS, INC., d/b/a ORLANDO LUTHERAN TOWERS, 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, Orlando Lutheran Towers, Inc., d/b/a Orlando Lutheran Towers (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 administrative fines in the amount of fifteen thousand dollars ($15,000.00) and assess a survey fee in the amount of five hundred dollars ($500.00) based upon two 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 5267) to operate a 109-bed assisted living facility located at 300 East Church Street, Orlando, Florida 32801, and was at all material times required to comply with the applicable statutes and rules governing such facilities. “Assisted living facility” means any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or manage- ment to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator. § 429.02(5), Fla. Stat. (2007). These residential facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who meet the minimum criteria in order to be admitted to such a facility and do not require 24-hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, these facilities, through its staff, provide resident supervision, the assistance with personal care and supportive services, as well as the assistance with, or the administration of, medications to residents who require such services. COUNT I (Tag 701 and 718) The Respondent Failed To Provide Appropriate Supervision To Ensure The Safety Of Residents With Known Exhibition Type Behavior In Violation of 58A-5.0182(1), F.A.C. And Failed To Provide An Environment Free From Abuse And Neglect For All Residents In Violation Of F.S. 429.28(1) 6. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 7. Under Florida law, an assisted living facility shall offer personal supervision, as appropriate for each resident, including the daily observation by designated staff of the activities of the resident while on the premises, an awareness of the general health, safety, and physical and emotional well-being of the individual, and a general awareness of the resident’s where- abouts. Fla. Admin. Code R. 58A-5 .0182(1)(b)-(c). 8. 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. Every resident of a facility shall have the right to: live in a safe and decent living environment, free from abuse and neglect, and be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy, Florida Statutes. § 429.28(1), Fla. Stat. (2007). 9. On or about September 22, 2006, the Agency conducted a complaint survey of the Respondent and its Facility (CCR# 2006008374). 10. | Based upon interview and record review, the Respondent failed to provide the appropriate personal supervision to ensure the safety of a resident with a known exhibition type behavior, and failed to ensure the resident’s right to live in an environment free from abuse and neglect, for 1 of 2 sample residents (Resident #1). As a result of these failures, the Resident was sexually assaulted by a Facility staff member. 11. A review of an Orlando Police Department report dated September 19, 2006, Case #2006-350476, documented a sexual assault of Resident #1 on September 16, 2006, at 7:10 pm, by a Facility housekeeping staff member. 12. The staff member confessed that he had sexually assaulted the Resident on two occasions previous to the September 16, 2006, assault. 13. A review of facility records dated September 16, 2006, documented that Resident #1 was sexually assaulted by a housekeeping staff member at 7:10 pm on September 16, 2006. 14. The records indicated that a staff member was observed in a day room with the Resident and another resident watching television. 15. The staff member left the day room and was then observed entering the Resident's room. 16. Shortly thereafter, the Resident #1 also left the day room and proceeded to his or her room as observed by the nurse passing medications. 17. Becoming suspicious, the nurse went to Resident #1’s room and discovered that the door was closed. 18. The nurse knocked and inquired as to the Resident's wellbeing. 19. The resident slowly answered "I'm OK." 20. The nurse left to continue passing medicines and returned minutes later to find the door open with the Resident and the housekeeper staff member in the room, both fully clothed, but the bed was unmade. 21. The staff member left the Resident’s room and the nurse questioned the Resident. 22. The Resident stated that the staff member was undressed when he or she entered the room and the staff member “took charge of me. . . . I didn't know what to do.” 23. During a telephone interview on September 21, 2006, at 1:45 pm, with the nurse who was the first person to become aware of the sexual assault, the nurse stated that Resident #1 and the staff member were first observed in the day room. 24. | The Resident was sitting in the chair watching television and the staff member was standing around. 25. The nurse started to do her second medication pass of the evening. 26. She had given the Resident his or her medication and had started to give medication down the right hallway from the nurse’s station, when she saw the staff member walk down to the Resident’s room. 27. A few minutes later, she saw the Resident walk down towards his or her room. 28. When the nurse looked down the hall towards the Resident’s room, she noticed that the room door was closed. 29. The nurse walked down to the Resident’s room, knocked on the door and asked the Resident was he or she okay. 30. A short time passed and the Resident stated he or she was okay. 31. At that time, the nurse was called to the nurse’s station. 32. She remembered looking down towards the Resident's room and noticed that the door was now open. 33. She then proceeded to the Resident’s room. 34. | When the nurse was getting closer to the Resident's-room, she heard the staff member say “I was checking to see if you had a spot on your carpet.” 35. As the nurse approached the Resident’s room, the staff member was leaving. 36. The Resident was observed sitting on the bed. 37. The nurse observed the staff member go to the sink and wash his hands and then go into the men’s bathroom. 38. The staff member was seen going back into the day room and talking to two other residents before he was seen leaving the floor. 39. The Resident was asked if he or she was okay and the Resident stated: “He asked me to come to my room. When I got there he was undressed. He told me to get in the bed and he took charge of me.” 40. The Resident was then asked if he or she had sex with the staff member and the Resident replied yes. 41. The Resident stated that he or she did not want to get the staff member into any trouble. 42. The nurse told the Resident that it would be okay and gave the Resident a hug. 43. At this point, the nurse stated that she saw the staff member leave the building to go to the nursing home. 44. A review of time card for the staff member showed that he clocked in to work at the nursing home at 5:16 pm on September 16, 2006, and clocked out at 9:02 pm. 45. He was not scheduled to be in the assisted living facility on that date, however, no one questioned his presence. 46. During an interview with the nurse on duty at the time of the sexual assault, she did not provide an explanation for not calling security or taking any other preventative action following her knowledge of the sexual assault. 47. On September 17, 2006, the staff member re-entered the assisted living facility portion of the building and walked freely on the floor where the Resident was assaulted, even while the police were investigating the crime scene. 48. None of the other staff questioned the presence of the staff member, even though all of them were aware of the police investigation. 49. As the police were present, the staff member entered the assisted living facility portion of the building and was observed by the police and the staff passing unhindered in front of the Resident's room. 50. During the interview with the nurse on duty at the time of the sexual assault, she did not provide an explanation for why the staff member was allowed to move freely throughout the residential community exposing other residents to the risk of assault and injury. 51. When asked why the staff member was not detained by the security guard but was allowed to continue working at the Facility for an additional 1 hour and 50 minutes following her knowledge of the sexual assault, the nurse provided no answer. 52. During an interview with the staff member’s Supervisor on September 19, 2006, at approximately at 1:20 pm, it was revealed that the staff member was given approval to work Saturday night at the nursing home. 53. The staff member’s normal shift was Monday thru Friday, 6:00 am to 2:30 pm. 54. The staff member had no authorization to be in the Towers (assisted living facility portion of the building) according to his Supervisor. 55. During an interview with the Facility’s Administrator on September 20, 2006, at approximately 11:00 am, it was revealed that she had been notified that the Resident had been sexually assaulted on September 16, 2006, at approximately 9:00 pm. 56. During the interview, it was confirmed that the housekeeping staff member who assaulted the Resident was an employee of the Orlando Lutheran Commons/Towers community. 57. During the interview, the Administrator further stated that the Resident had "exhibition type" behaviors and had in the past disrobed in front of another male resident. 58. A review of the Resident's record revealed no evidence of any past behaviors or of any interventions instituted to provide closer supervision to the Resident. 59. Based upon the layout of the building and the location of the Resident's room, the Facility staff could not observe the Resident from the nursing station. 60. —_No steps or inadequate steps were taken to ensure that sufficient staff was on the floor to monitor the Resident's behaviors. 61. During a telephone call on September 21, 2006, at 2:00 pm, the Administrator stated that the Resident was promiscuous. 62. There was no documentation in the Resident's record to substantiate that that type of behavior had occurred nor was there any evidence that the Facility staff had taken any steps to provide adequate supervision for resident promiscuous behavior. 63. The failure to take any protective steps prior to the sexual assault caused or substantially contributed to the sexual assaults on the Resident by the staff member and the failure to take any protective steps after the sexual assault exposed and directly threatened all residents to a sexual assault. 64. The Respondent’s actions and/or inactions constituted a class I violation. 65. 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. § 429.19(2)(a), Fla. Stat. (2007). 66. 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 ten thousand dollars ($10,000.00). COUNT I (Tag 700) The Respondent Failed To Provide Appropriate Post-Incident Care And Services Appropriate To The Needs Of Its Residents In Violation Of F.A.C. 58A-5.0182 67. The Agency re-alleges and incorporates by reference paragraphs | through 5. 68. Under Florida law, an assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Fla. Admin. Code R. 58A-5.0182. 69. On September 22, 2006, the Agency conducted a complaint survey of the Respondent and its Facility (CCR# 2006008374). 70. Based upon interview and record review, the Respondent failed to provide proper care and services to residents, i.e., proper medical attention and psychosocial services, to 1 of 2 sampled residents (Resident #1) involved in a sexual assault. 71. According to an Orlando police report dated September 19, 2006, Case #2006- 350476, documented an alleged rape occurred on September 16, 2006, at the Facility. 72. A forensic examination of Resident #1 on September 17, 2006, found numerous abrasions and lacerations, the most significant of which was a serious tear approximately 1 cm long. 73. Bleeding was noted in two areas. 74. A rape kit was collected. 75. During a review of the Resident's record on September 19, 2006, at 11:00 am, it was revealed that there was no documentation of any incident that occurred on September 16, 2006, when the Resident was sexually assaulted. 76. A further review revealed that no medical attention was provided to Resident #1 immediately upon discovery of the sexual assault. 77. There was no documentation that the Resident was sent to a hospital or provided any medical care by the Facility staff. 78. During an interview with the Administrator, it was revealed that she was notified of the alleged sexual assault on September 16, 2006, at approximately 9:00 pm. 79. She decided, however, not to do anything until Sunday morning, September 17, 2006, at approximately 10:30 am, when she contacted the police and other state agencies. 80. | When asked about this decision, the Administrator provided no explanation. 81. During an interview with the nurse who was the first person to know of the assault, it was revealed that the assault occurred at 7:10 pm on September 16, 2006. 82. The nurse called the Administrator at approximately 9:00 pm on September 16, 2006. 83. The nurse did not document anything in the Resident's record and did not provide any medical attention to the Resident or send the Resident to the hospital. 84. When asked why she did not report this immediately to law enforcement and the appropriate state agencies and why medical attention/counseling was not provided to the Resident, the nurse stated that she spoke with the Resident who did not appear injured. 85. She, therefore, did not perform a physical examination. 86. The Respondent’s actions and/or inactions constituted a class I violation. 87. 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. 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. § 429.19(2)(a), Fla. Stat. (2007). 88. 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 HT Assessment of Survey Fee 89. The Agency re-alleges and incorporates by reference paragraphs | through 5. 90. The Agency re-alleges and incorporates by reference Count I through Count II. 91. In addition to any administrative fines imposed, the Agency may assess a survey 11 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). 92. The Agency received a complaint about the Respondent. 93. In response to the complaint, the Agency conducted a complaint survey of the Respondent and its Facility. 94. As a result of the complaint survey, the Respondent was cited for the above- referenced violations. 95. The basis for the deficiencies alleged in this Administrative Complaint relates to the complaint made against the Respondent and its Facility. 96. 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. 97. 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 fifteen thousand dollars ($15,000.00). 3. Assess a survey fee against the Respondent in the amount of five hundred dollars ($500.00). 4. Enter any other relief that this Court deems just Respectfully submitted this 31st day of March, 2008. Thomas M. Hoeler, Senior-Aftorney 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 NOTICE The Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, and to be represented by counsel or other qualified representative. Specific options for the administrative action are set out within 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: Tara Lofgren, Administrator, Orlando Lutheran Towers, 300 East Church Street, Orlando, Florida 32801, by U.S. Mail, and CT Corporation Pine Island Road, 07 1490 0001 6979 1335, on this 31st day of March, 2008. Thomas M. Hoeler, Seht6r Attorney 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 Copies furnished to: Tara Lofgren, Administrator CT Corporation System Orlando Lutheran Towers Registered Agent 300 East Church Street Orlando Lutheran Towers, Inc. Orlando, Florida 32801 1200 South Pine Island Road (US. Certified Mail) Plantation, Florida 33324 (U.S. Certified Mail) Joel Libby, Field Office Manager Doris Spivey, Supervisor Hurston South Tower 400 West Robinson Street, Suite 309 Orlando, Florida 32801 (U.S. Mail) 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) SENDER: COMPLET! ® Complete items 1, 2, anu. Also complete item 4 if Restricted Delivery Is desired. @ Print your name and address on the reverse so that we can return the card to you. m Attach this card to the back of the mailpiece, or on the front if space permits. D. is delivery adarose different from item 17 4 if YES, enter delivery address below: Tuwers, O0C-.) _, 1200 DAN Pine ty Dri } % ie) OWA ne AAS

Docket for Case No: 08-002903