STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE Va l () Y | ADMINISTRATION, D Petitioner, vs. Fraes Nos. (Fine) 2008008980 (Conditional) 2008008981 HEATHER HILL NURSING CENTER, LLC, d/b/a HEATHER HILL HEALTHCARE CENTER, 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, Heather Hill Nursing Center, LLC, d/b/a Heather Hill Healthcare Center (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, _ Florida Statutes (2008), and alleges as follows: NATURE OF THE ACTION This is an action to impose an administrative fine against a skilled nursing living facility in the amount of twenty-five thousand dollars ($25,000.00) based upon two class I deficiencies, to impose a six-month survey cycle fine in the amount of six thousand dollars ($6,000.00), and to assign conditional licensure status. JURISDICTION AND VENUE 1. This Court has jurisdiction over the subject matter pursuant to Sections 120.60 and 120.57, Florida Statutes (2008). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and 120.60, Florida Statutes (2008), Chapters 408, Part II, and 400, Part II, Florida Statutes (2008), and Chapter 59A-4, Florida Administrative Code. 3. Venue lies pursuant Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees skilled nursing facilities, more commonly referred to as nursing homes, in Florida and enforces the applicable federal regulations and state statutes and rules governing such facilities. Chs. 408, Part II, 400, Part II, Fla. Stat. (2008); and Ch. 59A-4, Fla. Admin. Code. The Agency is authorized to deny an application for licensure, revoke or suspend a license, and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or the applicable tules. §§ 408.813, 408.815, 400.121, 400.23. Fla. Stat. (2008). In addition, the Agency may impose an additional six-month survey cycle fine for certain classes of violations that take place within a specified period of time, assign conditional licensure status, and assess costs related to the investigation and prosecution of this case. §§ 400.19(3), 400.23(7), 400.121(8), Fla. Stat. (2008). 5. The Respondent was issued a license (License Number 1217096) by the Agency to operate a 120-bed skilled nursing facility in Florida located at 6630 Kentucky Avenue, New Port Richey, Florida 34653 (hereinafter “the Facility”), and was at all times material required to comply with the applicable federal regulations and state statutes and rules governing such facilities. As the holder of such a license, the Respondent is a licensee. “Licensee” means “an individual, corporation, partnership, firm, association, or governmental entity, that is issued a permit, registration, certificate, or license by the Agency.” § 408.803(9), Fla. Stat. (2008). “The * licensee is legally responsible for all aspects of the provider operation.” § 408.803(9), Fla. Stat. (2008). “Provider” means “any activity, service, agency, or facility regulated by the Agency and listed in Section 408.802, [Florida Statutes (2008)].” § 408.803(11), Fla. Stat. (2008). Skilled nursing facilities are regulated by the Agency under Chapter 400, Part II, Florida Statutes (2008), and listed in Section 408.802, Florida Statutes (2008). § 408.802(13), Fla. Stat. (2008). Skilled nursing facility residents are thus clients. “Client” means “any person receiving services from a provider.” § 408.803(6), Fla. Stat. (2008). COUNT I The Respondent Failed To Maintain Its Premises And Conduct Its Operations In A Safe and Sanitary Manner In Violation of F.S. 400.141(8) And F.A.C. 59A-4.122(1) 6. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 7. Under Florida law, a skilled nursing facility is required to maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner. § 400.141(8), Fla. Stat. (2008). 8. Under Florida law, a skilled nursing facility shall provide a safe, clean, comfort- able, and homelike environment, which allows the resident to use his or her personal belongings to the extent possible. Fla. Admin. Code R. 59A-4.122(1). 9. Under Florida law, a skilled nursing facility shall provide housekeeping and maintenance services necessary to maintain a sanitary, orderly, and comfortable interior. Fla. Admin. Code R. 59A-4.122(2)(a). 10. On or about July 8-11, 2008, the Agency conducted a complaint survey of the Respondent and its Facility. 11. Based upon observation, staff interview and record review, the Respondent failed to provide the appropriate housekeeping and maintenance services to maintain a safe, sanitary “ and comfortable environment relating to musty odors and dampness throughout the Facility. The Respondent also failed to properly maintain the Facility in that the premises contained mildew and/or mold-like substances in at least four occupied resident bedrooms and one unoccupied resident bathroom located on three wings (Rooms 115, 208, 305, 306 and 308). The Respondent also failed to provide the appropriate maintenance and sanitation services in the Facility on one wing (400) relating to damaged furnishings, unlabeled items and what appeared to be bio-growth in one community shower room (100/200). Room 308 12. During an interview with a former employee of the Facility on July 9, 2008, at approximately 9:00 P.M., the former employee shared information with the Agency. 13. The former employee stated that there was a cover-up by the Administrator during the time of the former employee’s employment. 14. | The Administrator seemed to have the "say-so" on all important matters at the Facility, even though she was the administrator at another facility. 15. The former employee stated that during the term of his/her employment, he/she found extreme mold build-up in Room 308. 16. There was a hole in the wall opposite of the beds in Room 308. 17. When the Administrator saw the hole, the former employee was instructed to install a Fiberglass Reinforced Plastic (hereinafter “FRP”) covering over the hole and seal the area so that the hole could not be detected. 18. The former employee also stated that if the nurse call-light cover plates were removed in the 100, 200 and 300 wings, the smell of mold would be very prominent. 19. On July 10, 2008, at 11:35 am., Room 308 was inspected by the surveyor, the ’ Facility’s Maintenance Director and a representative of the Office of Inspector General. 20. A covering that appeared to consist of FRP was observed on the wall opposite the bed in Room 308. 21. Throughout the Facility, these durable FRP wall coverings were located on walls that abutted the headboards of the resident beds. 22. In Room 308, however, this wall covering was on the opposite side of the bed, where bed headboards were not located. 23. The wall covering felt soft when pushed and the integrity of the wall appeared to be compromised. 24. In order to determine if the integrity of the wall was compromised, the Facility Maintenance Director pulled back the wall covering. 25. Behind the wall covering was a very large hole, estimated to be approximately 20 inches by 14 inches. 26. The odor emanating from the hole was strong and musty smelling. 27. Green and black fuzzy substances infected the area behind the FRP wall covering and in the hole as well. 28. Two ceiling panels were removed in the Room 308 living space and one ceiling panel was removed in Room 308 bathroom area. | 29. A mold-like substance was observed on the piping and the corrugated metal that formed the bottom of the roof. 30. | There were two plastic wash basins sitting above the ceiling panels in the living area and one plastic wash basin above the ceiling panel in the bath area. 31. | The Maintenance Director stated that the wash basins were probably there from the roof leakage that occurred prior to the new roof being installed in 2005-2006. 32. | The Maintenance Director also stated that he/she felt that there may be mold in other areas of the Facility. 33. On this day at 11:55 a.m., the surveyor returned to Room 308 and it was noted that the Maintenance Director had pulled down a large section of the drywall revealing more damp areas of the growth and/or mold-like substance. 34. | Arrangements were made by the Facility staff to relocate the residents that were occupying this room. Room 306 35. On July 10, 2008, at approximately 11:45 a.m., Room 306 was inspected by the surveyor, Maintenance Director and a representative of the Office of Inspector General. 36. This room is adjacent to Room 308. 37. The west wall cover for the nurse call system was removed. 38. A strong musty, mildew, mold-like odor emanated from the hole. 39. | When the Maintenance Director observed this, he indicated that he would go back to Room 308 to see how bad the mold had spread in the wall. 40. An observation above two ceiling panels of Room 306 found fuzzy mold-like substance on the overhead pipes and on the corrugated metal that formed the bottom of the roof located above the room’s drop ceiling. 41. | One plastic washbasin was observed sitting above the ceiling panels. Room 305 42. On July 10, 2008, at approximately 1:20 p.m., Room 305 was inspected. 43. The Maintenance Director removed the nurse call system cover from the west “wall between the beds. 44, A musty, mildew, mold like odor emanated from the hole and there was a black fuzzy substance in and around the junction box located in the access hole. Room 208 45. On July 10, 2008, at approximately 10:55 a.m., Room 208 was inspected by the surveyor, Maintenance Director and a representative of the Office of Inspector General. 46. A green/black fuzzy substance that appeared to be mold or a mold-like substance was observed on overhead pipes and the corrugated metal that formed the bottom of the roof located above the room’s drop ceiling. Room 115 47. At July 10, 2008, at approximately 10:30 a.m., a tour of Room 115 found that the north concrete wall of the resident bathroom had a green and black mold-like substance visible on the surface measuring approximately 20 inches by 30 inches. 48. The bathroom was being remodeled because of wall damage according to the maintenance helper. Other Facility Premises And Maintenance Deficiencies 49. Upon entry to the Facility and throughout each day from, July 8-11, 2008, a musty odor was present and the air felt damp. . 50. On July 11, 2008, at approximately 10:45 a.m., documentation (AHCA Memo dated September 15, 2004, Indoor Air Quality in Health Care Facilities (Replaces Memo dated August 27, 2004) was provided to the Facility Administrator concerning the proper procedure to ensure that indoor air quality will not adversely affect the environment and resident care. 51. The Administrator explained that the Facility had already done this twice. 52. She provided documentation to the surveyors to review. 53. This documentation included a Home Improvement Contract dated October 20, 2005, with Paul Davis Restoration for Water Damage. 54. No further explanation was given by the Administrator. 55. On July 8, 2008, from 4:30 a.m. to 5:45 a.m., the following observations were made on the 400 hall: a. The bathroom sink in Room 402 was loose from the wall and the 3:1 commode seat over the toilet was missing the two rear-leg endcaps. b. The bathroom sink in Room 403 was loose from the wall. c. Room 404 had a cracked air conditioner housing. d. The bathroom sink in Room 404 was loose from the wall. e. Loose floor tiles were noted under the air conditioning unit in Room 410. f. Room 411 had cracked floor edging. g. The bathroom in Room 414 contained an unlabeled pink denture cup. h. The bathroom sink in Room 415 was loose from the wall. i. The 100/200 community shower room contained a big-boy shower chair that had bio-growth around all four wheel casings. 56. On July 10, 2008, at approximately 11:30 a.m., one of the mattresses (TheraMax HFS) in resident Room 415 was observed to be worn, have breaks in the integrity of the blue covering and was, overall, observed to be an uncleanable surface. 57. The Respondent’s actions constituted an isolated class I deficiency. 58. Aclass I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has * caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstand- ing the correction of the deficiency. § 400.23)8)(a), Fla. Stat. (2008). 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 Il (Tag N201) The Respondent Failed to Ensure That Appropriate Care and Services Were Provided To Residents In Violation of F.S. 400.022(1) 59. The Agency re-alleges and incorporates by reference paragraphs | through 5. Resident Rights 60. Under Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident . . . the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with “ rules as adopted by the agency. § 400.022(1), Fla. Stat. (2008). This statement shall assure each resident . . . the right to have privacy in treatment and in caring for personal needs; to close room doors and to have facility personnel knock before entering the room, except in the case of an emergency or unless medically contraindicated; and to security in storing and using personal possessions. Privacy of the resident's body shall be maintained during, but not limited to, toileting, bathing, and other activities of personal hygiene, except as needed for resident safety or assistance. § 400.022(1)(m), Fla. Stat. (2008). This statement shall assure each resident . . . the right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraint may be applied only by a qualified licensed nurse who shall set forth in writing the circumstances requiring the use of restraint, and, in the case of use of a chemical restraint, a physician shall be consulted immediately thereafter. Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than resident protection or safety. § 400.022(1)(o), Fla. Stat. (2008). Facility Administration Requirements 61. Every licensed skilled nursing facility shall comply with all applicable standards and rules of the Agency and shall be under the administrative direction and charge of a licensed administrator. § 400.141(1), Fla. Stat. (2008). The licensee of each nursing home shall have full legal authority and responsibility for the operation of the facility. Fla. Admin. Code R. 59A- 4.103(4)(a). The licensee of each skilled nursing facility shall designate one person, who is licensed by the Agency for Health Care Administration, Board of Nursing Home Administrators under Chapter 468, Part II, F.S., as Administrator, who oversees the day to day administration 10 * and operation of the facility. Fla. Admin. Code R. 59A-4.103(4)(b). Risk Management Requirements 62. Under Florida law, every skilled nursing facility shall, as part of its administrative functions, establish an internal risk management and quality assurance program, the purpose of which is to assess resident care practices; review facility quality indicators, facility incident reports, deficiencies cited by the Agency, and resident grievances; and develop plans of action to correct and respond quickly to identified quality deficiencies. The program must include: (a) A designated person to serve as risk manager, who is responsible for implementation and oversight of the facility's risk management and quality assurance program as required by this section. (b) A risk management and quality assurance committee consisting of the facility risk manager, the administrator, the director of nursing, the medical director, and at least three other members of the facility staff. The risk management and quality assurance committee shall meet at least monthly. (c) Policies and procedures to implement the internal risk management and quality assurance program, which must include the investigation and analysis of the frequency and causes of general categories and specific types of adverse incidents to residents. (d) The development and implementation of an incident reporting system based upon the affirmative duty of all health care providers and all agents and employees of the licensed health care facility to report adverse incidents to the risk manager, or to his or her designee, within 3 business days after their occurrence. (e) The development of appropriate measures to minimize the risk of adverse incidents to residents, including, but not limited to, education and training in risk management and risk prevention for all nonphysician personnel. . . . § 400.147(1), Fla. Stat. (2008). 63. Under Florida law: (4) Each internal risk management and quality assurance program shall include the use of incident reports to be filed with the risk manager and the facility admin- istrator. The risk manager shall have free access to all resident records of the licensed facility. The incident reports are part of the workpapers of the attorney 11 defending the licensed facility in litigation relating to the licensed facility and are subject to discovery, but are not admissible as evidence in court. A person filing an incident report is not subject to civil suit by virtue of such incident report. Asa part of each internal risk management and quality assurance program, the incident reports shall be used to develop categories of incidents which identify problem areas. Once identified, procedures shall be adjusted to correct the problem areas. (5) For purposes of reporting to the agency under this section, the term "adverse incident" means: (a) An event over which facility personnel could exercise control and which is associated in whole or in part with the facility's intervention, rather than the condition for which such intervention occurred, and which results in one of the following: 1. Death; 2. Brain or spinal damage; 3. Permanent disfigurement; 4. Fracture or dislocation of bones or joints; 5. A limitation of neurological, physical, or sensory function; 6. Any condition that required medical attention to which the resident has not given his or her informed consent, including failure to honor advanced directives; or 7. Any condition that required the transfer of the resident, within or outside the facility, to a unit providing a more acute level of care due to the adverse incident, rather than the resident's condition prior to the adverse incident; (b) Abuse, neglect, or exploitation as defined in s. 415.102; (c) Abuse, neglect and harm as defined in s. 39.01; (d) Resident elopement; or (e) An event that is reported to law enforcement. (6) The internal risk manager of each licensed facility shall: (a) Investigate every allegation of sexual misconduct which is made against a member of the facility's personnel who has direct patient contact when the allegation is that the sexual misconduct occurred at the facility or at the grounds of the facility; (b) Report every allegation of sexual misconduct to the administrator of the licensed facility; and (c) Notify the resident representative or guardian of the victim that an allegation of sexual misconduct has been made and that an investigation is being conducted. § 400.147 (4) — (6), Fla. Stat. (2008). 64. Under Florida law, the facility shall maintain a risk management and quality assurance committee as required in Section 400.147, Florida Statutes. Fla. Admin. Code R. 59A- 4.123(1). The facility shall use AHCA Form 3110-0009, Revised, January, 2002, October, 2001, *“Confidential Nursing Home Initial Adverse Incident Report — 1 Day,” and AHCA Form 3110- 0010, 3110-0010A, and 3110-0010B, Revised, January, 2002, “Confidential Nursing Home Complete Adverse Incident Report - 15 Day,” which are incorporated by reference when reporting events as stated in Section 400.147, F.S. These forms may be obtained from the Agency for Health Care Administration, Long Term Care Unit, 2727 Mahan Drive, MS 33, Tallahassee, FL 32308. Fla. Admin. Code R. 59A-4.123(2). Resident Assessment and Plan of Care 65. Under Florida law, each resident admitted to the nursing home facility shall have a plan of care. The plan of care shall consist of: (a) Physician’s orders, diagnosis, medical his- tory, physical examination and rehabilitative or restorative potential. (b) A preliminary nursing evaluation with physician’s orders for immediate care, completed on admission. (c) A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment. Fla. Admin. Code R. 59A-4.109(1). The facility is responsible to develop a com- prehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must describe the services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental and social well-being. The care plan must be completed within 7 days after completion of the resident assessment. Fla. Admin. Code R. 59A-4.109(2). At the resident’s option, every effort shall be made to include 13 ‘ the resident and family or responsible party, including private duty nurse or nursing assistant, in the development, implementation, maintenance and evaluation of the resident plan of care. Fla. Admin. Code R. 59A-4.109(3). All nursing home staff personnel who provide care, and at the resident’s option, private duty nurses or non employees of the facility, shall be knowledgeable of, and have access to, the resident’s plan of care. Fla. Admin. Code R. 59A-4.109(4). 66. On or about July 8-11, 2008, the Agency conducted a complaint survey of the Respondent and its Facility. 67. Based upon observation, interview and record review, the Respondent failed to: (1) immediately report allegations of sexual and/or physical abuse to the Administrator, local law enforcement and the agency, (2) thoroughly investigate allegations of sexual and/or physical abuse and (3) prevent further potential abuse for 4 of 16 sampled residents (Residents #1, #2, #3 and #4), thereby allowing these vulnerable adults and/or frail elders to be placed at a continued risk of abuse. Resident #2 68. Resident #2 resided in the Facility's Secured Care Unit. 69. A review of Resident #2's clinical record revealed a late entry by the Director of Nursing (DON) dated July 3, 2008, which stated that an incident occurred on June 29, 2008, and that the Resident’s daughter and physician were notified that day. 70. The next nursing entry was a late entry by a LPN (Employee #19) dated July 3, 2008, which stated: Notified by aide that resident was tied to side rail in hallway with garbage bag. Resident released, no signs/symptoms of distress. Respirations even and unlabored. Mobility monitor in place for safety. Resident in wheelchair at nursing station. Supervisor was informed. 14 71. The date of incident was not indicated in this nursing entry. 72. No other documentation regarding the June 29, 2008, incident was noted in the Resident’s clinical record. 73. A review of Resident #2's clinical record revealed July 2008 physician orders, which included medical diagnosis of the Resident of dementia, congestive heart failure, chronic obstructive pulmonary disease, osteoarthritis, psychosis and depression. 74. Resident #2's complete Patient Care Plan, updated on June 3, 2008, indicated that the Resident needed total assistance with activities of daily living and was non-ambulatory. 7. A review of the social service Customary Routines dated September 5, 2006, revealed that Resident #2 stays up late at night -- after 9:00 p.m. 76. A review of Resident #2's most recent Minimum Data Set (MDS), dated May 22, 2008, indicated that the Resident had moderately impaired long-term and short-term memory deficits. 77. Resident #2 was noted to be totally dependent upon staff for transfer and locomotion on the unit. 78. The May 22, 2008, MDS indicated that Resident #2 did not walk in his or her room or in the corridor. 79. The May 22, 2008, MDS also indicated that Resident #2 had functional limitation in range of motion of both hands with associated partial loss of voluntary movement. 80. A Nursing Summary Report, dated May 29, 2008, indicated that Resident #2's primary mode of locomotion was a wheelchair. 81. A review of the July 2008 physician's orders indicated current medications: a. Roxanol, 10 mg by mouth or sublingually every six hours. b. Buspirone, 15 mg one tablet by mouth twice daily. 15 Geodon, 80 mg one capsule by mouth twice daily. Namenda, 10 mg one tablet by mouth twice daily. Depakote, sprinkle capsule 125 mg two capsules by mouth twice daily. Lasix, 40 mg one tablet by mouth daily. Aricept, 10 mg one tablet by mouth at bedtime. Bupropion (Wellbutrin), 75 mg one tablet by mouth twice daily. Trazodone (Desyrel), 50 mg one-half tablet (25mg) by mouth at bedtime. Fentanyl Patch, 50 meg/hr. Apply one patch every 72 hours. Lorazepam, 0.5mg one tablet by mouth every 4 hours as needed for restlessness. ror pga he 29 82. A review of Resident #2's Patient Care Plan Approval Form dated March 6, 2008, and reviewed on June 3, 2008, by the care plan team (which included the Assistant Director of Nursing (ADON) and Social Service Director (SSD)), indicated that the Resident was chemically restrained. 83. A review of the Resident’s Patient Rights stated that the Resident has the right to be free from abuse, corporal punishment, involuntary seclusion and restraints. 84. A review of the Facility's Patient Incident Investigation: Injury of Unknown Origin, dated July 3, 2008, indicated that Resident #2 was found in the hallway in a wheelchair. 85. | The wheelchair was tied to a rail and the Resident could not move the wheelchair. 86. Resident #2 stated that he or she could not move the wheelchair. 87. Per the Facility's Evaluation on the Patient Incident Investigation, Resident #2 was "not restrained." 88. _A review of the Facility investigation records indicated that the immediate action to prevent the recurrence of this incident was that abuse guidelines were discussed with staff by the evening supervisor on the date of incident. 89. The investigation records indicated a review by the DON on July 3, 2008, but no reviewed documentation was noted by the Administrator, the Patient Safety Committee or the Risk Manager. 16 90. A review of the Federal Immediate report dated July 3, 2008, indicated that the Social Service/Abuse Coordinator was notified about the June 29, 2008, incident on July 2, 2008, at 8:00 p.m. 91. The Federal Immediate Report described the incident as the Resident was found .in hallway in a wheelchair. The wheelchair was tied to rail and the Resident could not move the wheelchair. 92. A review of a the written employee statement obtained by the Facility during its investigation, dated July 3, 2008, by Employee #3 (a CNA) noted that on Sunday, June 29, 2008 at about 8:45 p.m., Employee #3 was going to clean the utility room on Station II. Resident #2 was in the 400 Hall right past the double doors. The Resident stated to Employee #3 over and over again “help me with my chair.” Employee #3 went over to the Resident to see what was wrong. Employee #3 then noticed a plastic bag tied to the handrail on the wall and to the Resident’s wheelchair. Employee #3 immediately cut the bag so that the Resident would be able to move. Employee #3 asked one of the other CNAs if she know who did it, but no one would tell Employee #3. Employee #2 (another CNA) was at lunch during the incident. Employee #21 (another CNA) and Employee #3 were on the 300 Hall and a LPN (Employee #18) was their nurse. Two CNAs (Employee #1 and #22) and a LPN (Employee #19) were on the 400 Hall. Maintenance personnel (Employees #5 and #8) were on the 400 Hall doing the floors. 93. Another written statement dated July 3, 2008, at 12:00 p.m., telephonically obtained by the DON, stated that the DON spoke to Employee #22 (CNA) concerning the incident on June 29, 2008. Employee #22 stated by telephone that Resident #2 was one of her residents that evening. She went to the laundry for approximately 10 minutes. She saw her resident in his or her wheelchair on 400 Hall prior to leaving for laundry. The wheelchair was 17 “not tied to the railing at that point. When Employee #22 came back from the laundry, she was told that the Resident had been noted to have his or her wheelchair tied to a railing and had been released by another CNA. 94. | Employee #22 stated that she will be in on July 4, 2008, and was asked to make a written statement at that time. 95. No follow-up written statement by Employee #22 was provided. 96. | Employee #1 (CNA) was assigned to the 400 Hall. 97. A review of the Supervisory Adverse Action Notice, dated July 3, 2008, in the Employee’s file indicated that she was discharged by the Facility on July 3, 2008, for “Employee in the beginning of her probationary period-worked weekends only. Numerous written concerns from nursing supervisor and charge nurses about poor resident care or no resident care, frequent extended smoke breaks, transferring residents without using a gait belt.” 98. During an interview with the DON on July 9, 2008, at 1:45 p.m., and the Administrator on July 11, 2008, at 10:00 a.m., there was no further information regarding the CNA's termination and the allegations of a resident being neglected. 99. A review of the written statement of the 3-11 Shift Supervisor (a registered nurse) (Employee #11), dated "7.3 RT(related to) 6.29" stated that the Shift Supervisor had talked to a maintenance staff member (Employee #8) about Resident #2 being in his/her wheelchair tied to the hall handrail with a trash bag. The Shift Supervisor recalled seeing Employee #8 leave the hall briefly while the other floor guy worked. Employee #8 stated that Resident #2 was not tied when he left. He came back about 15 minutes later and found the wheelchair tied. He went looking for the Supervisor. Before he could find the Shift Supervisor, Employee #3 (CNA) had already cut the bag and freed Resident #2. He or she estimated that this period was about 15 18 “minutes. Employee #8 did not tell the Shift Supervisor because he knew that Employee #3 had done so already. Employee #3 told the Shift Supervisor that she found Resident #2 in his/her wheelchair with the wheelchair attached to handrail with large trash bag then cut the bag. The Shift Supervisor believed that this took place at about 9:00 p.m. Resident #2 was not yelling and the Shift Supervisor did not notice anything unusual. The Shift Supervisor did not recall the guys who were cleaning the 300 Hall floor at the time. 100. Undated written statements authored by Employee #2 (CNA) and Employee #5 (maintenance staff member) were provided, but offered no further information regarding the incident involving Resident #2 on June 29, 2008. 101. The Facility's Patient Abuse Investigation Report, dated July 3, 2008, indicated that Employee #8 (maintenance staff member) was also interviewed and provided a written statement, but no statement was provided to the Agency for review. 102. According to the Facility's Daily Assignments and Assignment and Sign-in Sheet, dated June 29, 2008, staffing for the Facility 3-11 shift was one Shift Supervisor (RN), five LPNs, five CNAs on Station I and six CNAs on Station II. 103. The Patient Abuse Investigation Report revealed that no other employees, including any additional licensed personnel assigned to the Station II, were interviewed regarding the June 29, 2008, incident. 104. The Facility completed a Federal 5-Day report dated July 4, 2008, at 2:00 p.m. In its Findings of Facility Investigation part, it stated that the allegation was substantiated as abuse, however, through investigation, it is still unable to determine how Resident #2’s wheelchair was tied to the handrail. The Resident was unable to recall incident due to his or her dementia. The staff members who were working at the time of the incident were interviewed and all of them 19 ‘ denied tying the Resident to the handrail. The Resident was released from the handrail by the CNA who discovered the Resident. The Resident has not been displaying any signs/symptoms of abuse since the incident occurred. 105. The Federal 5-Day report indicated that corrective actions taken or to be taken included that the abuse guidelines were discussed with staff by the evening Shift Supervisor on date of incident. 106. A review of the State Initial Adverse Incident Report-1 Day, dated July 3, 2008, indicated that the Resident was sitting unrestrained in his or her wheelchair in the corridor on June 29, 2008, at 8:45 p.m. The wheelchair was found to be tied in the back to the handrail in the corridor. The Resident stated that he or she could not move the wheelchair. The Resident was released by a CNA. 107. During an interview with the 3-11 Shift Supervisor (Employee #11) on July 11, 2008, at approximately 8:45 a.m., it was stated that Resident #2's wheelchair was discovered on June 29, 2008, at approximately 9:00 p.m., tied to a corridor handrail with a trash bag which required it to be cut in order to release the Resident's wheelchair. 108. The Shift Supervisor stated that she did not initiate any abuse or incident report nor did she document the incident in Resident #2's clinical record. 109. She stated that she “mentioned” the incident during a telephone call with the ADON during the 3-11 shift on June 29, 2008. 110. She stated that she wrote an informal note and placed it under the DON's door for review. 111. She did not report the incident to the Administrator. 112. She also stated that in retrospect, she should have initiated the Facility's policy 20 * and procedure regarding abuse reporting/investigation. 113. The Supervisor stated that she was aware she was a mandatory reporter of actual or alleged abuse of a disabled adult or elderly person. 114. During an interview with the ADON on July 9, 2008, at approximately 2:15 p.m., the ADON concurred with the Shift Supervisor that they did not speak on June 29, 2008, and recalled the mentioning of the incident. 115. The ADON stated that other issues had taken precedence during the telephone call, including staffing issues. 116. The ADON stated that she did not initiate the Facility's policy and procedure regarding abuse reporting/investigation. 117. She stated did not notify the Administrator. 118. The ADON stated she was aware she was a mandatory reporter of actual or alleged abuse of a disabled or elderly person. 119. The ADON tendered her resignation to the Facility on July 8, 2008. 120. During an interview with the Clinical Care Coordinator/Risk Manager (CCC/RM) on July 9, 2008, at approximately 2:45 p.m., it was revealed that on June 30, 2008, she was 95% sure that she knew of the June 29, 2008, incident involving Resident #2. 121. She stated that she 100% aware of the incident by July 2, 2008. 122. She stated that as the Facility’s risk manager, she initially dropped the ball. If she knew, she did not do anything. 123. She stated that she did not receive an incident report for follow up. 124. As the CCC/RM, she was aware of the Facility's policy and procedure regarding abuse reporting/investigation. 21 125. She stated that she did not notify the Administrator. 126. She stated that she was aware she was a mandatory reporter of actual or alleged abuse of a disabled or elderly person. 127. The CCC/RM tendered her resignation to the Facility on July 8, 2008. 128. During an interview with the DON on July 9, 2008, at 1:45 p.m., it was revealed that on June 30, 2008, she discovered the informal note from the Shift Supervisor about the June 29, 2008, incident involving Resident #2. 129. The DON stated that she did not remember the incident being logged onto the 24- hour nursing report. 130. The DON stated that she did not think of the incident as abuse. She just did not think of it that way. 131. She also stated that she did not do anything else about it. 132. The DON did not initiate the Facility's policy and procedure regarding abuse reporting/investigation. 133. She stated she did not notify the Administrator. 134. The DON stated that the failure to report the June 29, 2008, incident involving Resident #2 was a mistake. 135. The DON stated that she was aware she was a mandatory reporter of actual or alleged abuse of a disabled or elderly person. 136. During an interview with the Administrator on July 9, 2008, at approximately 1:00 p.m., and again on July 10, 2008, at approximately 10:00 a.m., it was revealed that she was not made aware of the June 29, 2008, incident involving Resident #2 until the evening of July 2, 2008. 22 137. The Administrator stated that the information regarding the abuse of Resident #2 on June 29, 2008, was not reported to her. 138. She stated that she could not provide any further information regarding the decisions of the Shift Supervisor, DON, ADON and CCC/RM to not initiate the Facility's policy and procedure regarding abuse and notify her immediately of the incident. 139. When asked about corrective actions indicated on the Federal 5-Day report dated July 4, 2008, the Administrator was unable to provide any written documentation that the abuse guidelines were discussed with staff by the Shift Supervisor on date of incident. 140. The Administrator provided for review an in-service roster documentation of the Abuse Prevention dated December 11, 2007, the annual Abuse/Neglect/Exploitation dated January 8, 2008, and the Misappropriation of Residents' Money or Property dated May 12, 2008. Resident #1 141. Resident #1 resided on the Facility's Secured Care Unit - 400 Hall. 142. Resident #1 was observed at the Facility on July 8, 2008, from 4:30 a.m. to 5:45 a.m. ambulating on the 300 and 400 Halls unmonitored and unsupervised. . 143. Resident #1 was observed entering four occupied resident bedrooms (rooms 404, 410, 412 and 313). 144. Three of these bedrooms were occupied by residents of the opposite sex. 145. Resident #1 was observed performing multiple activities, including sitting on an unoccupied bed, pulling privacy curtains and rummaging about each room with no observed staff intervention while the residents slept. 146. At 5:10 a.m., Resident #1 was observed to be wandering about nursing Station II with his or her soiled adult briefs around his or her ankles. 23 147. Employee #16 (LPN), who was assigned to the hall, was observed escorting - Resident #1 from the Station II desk to his or her room towards the end of the 400 Hall with his or her soiled adult briefs around his or her ankles. 148. Resident #1 was not observed to be monitored for need to bathroom use or toileting requirements during this observation timeframe. 149. A review of Resident #1's clinical record on July 9, 2008, and a review of the Facility's Monthly Facility/Resident Incident Analysis Log dated July 2008 (which contained 10 entries to July 9, 2008) did not reflect the documentation regarding the observations of Resident #1's wandering behavior on July 8, 2008, from 4:30 a.m. to 5:45 a.m. 150. a. 151. A review of Resident #1's clinical record revealed medical diagnoses, including: Pick's disease (progressive frontal and temporal lobe dysfunction similar to dementia) Kiliver-Bucy Syndrome (associated with damage to both of the anterior temporal lobes of the brain which causes inappropriate sexual behavior, inability to visually recognize objects, loss of normal fear and anger responses, memory loss, distractibility, seizures and dementia) Frontotemporal Dementia Executive-type psychosis Organic delusional syndrome Progressive Abulia (lack of motivation or will associated with Frontotemporal Dementia which requires constant direction from caregivers as the resident is unable to act or make decisions independently) Resident #1's July 2008 physician's orders indicated that the Resident’s current medication was Seroquel, 100 mg, one tablet by mouth twice a day. 152. A review of Resident #1's MDS dated November 14, 2007 (annual) and May 27, 2008 (quarterly), indicated that the Resident had severe short-term and long-term memory 24 * impairment/cognitive skills. 153. Resident #1 was also noted to have daily wandering behavior that was not easily altered. 154. A review of the Resident Assessment Protocol (RAP) dated November 14, 2007, indicated wandering as a problem/trigger. 155. In the RAP, Potential for Danger to Self/Others, stated that the Resident was at risk for following others away from safety, was at risk for leaving the center and was at risk for falls. 156. A review of Resident #1's care plan dated December 2, 2007, and reviewed and/or updated on June 3, 2008, stated: Resident wanders about Special Care Unit daily, will run in hall at times. Has occasional episodes of anxiety. Diagnosis: Dementia, Pick's Disease. Pulls call bell cord out of wall and carries it to another place, puts inappropriate things into mouth i.e. leaves, paper Goal: 1. Will have decrease in wandering behaviors and fewer episodes of insomnia and will not leave facility unescorted through next review (due 9/3/2008). 2. Resident will accept redirection to activities when wandering and anxiety occur through next review (due 9/3/2008). 3. Resident will have fewer episodes of removing call light cord and putting inappropriate things in mouth through next review (due 9/3/2008). Approaches: -Invite and escort resident to activities as a diversion from wandering. -Observe resident's needs when wandering, i.e. is s/he looking for a bathroom? -Wanderguard on and checked per protocol. -Special Care Unit for specialized approach to care. -Medicate as directed by physician for insomnia and observe for effectiveness -Observe for side effects of medications -Mental Health evaluation as needed. 25 -Monitor through Psychotropic Medication Review Committee as needed -Observe resident for putting inappropriate things in mouth -Redirect resident when attempting to remove call light cord 157. A review of Resident #1's clinical record revealed a nursing note dated June 23, 2008, at 4:00 p.m., which stated that the Resident went into the small dining room and pulled a female resident's hair. The female resident turned, yelled and chased Resident #1. The female resident stated “that hurt” and staff redirected both residents without further incident. 158. A further review of Resident #1's clinical record revealed no further information regarding the June 23, 2008, dining room incident. 159. A review of Resident #1's care plans, updated June 3, 2008, did not reveal any Facility identified approaches regarding aggressive behavior or resident to resident contact. 160. A review of the Facility's Monthly Facility/Resident Incident Analysis Log for June 2008 did not reveal any report for the June 23, 2008, dining room incident involving physical contact with another resident. 161. During an interview with the Administrator on July 10, 2008, at approximately 3:00 p.m., it was revealed that there was no further information regarding any additional Facility generated investigation information regarding the June 23, 2008, dining room incident or care plan information regarding the Resident’s observed wandering observations and documented aggressive/physical behavior. 162. Resident #1 was observed on July 10, 2008, at approximately 11:40 a.m. sleeping in a bed the bedroom assigned to two residents of the opposite sex. 163. Neither resident was observed in the room during the observation. 164. Employee #17 (CNA) observed Resident #1 sleeping in the incorrect room, left the Resident in the incorrect room. The CNA did not immediately intervene, but continued with 26 * retrieving/escorting other residents to the dining room. 165. At11:50.a.m., the CNA was observed waking Resident #1 up for lunch. 166. Resident #1 quickly ambulated from that room into another resident room next door before the CNA could intervene. Resident #4 167. Resident #4 resided in the Facility's Secured Care Unit. 168. Resident #4 was admitted to the Facility on June 28, 2008, after an acute care hospitalization on June 24-28, 2008. 169. On July 8, 2008, from 4:30 a.m. to 5:45 a.m., Resident #4 was observed in the Facility constantly ambulating the entire length of the halls in a Merriwalker with no supervision or monitoring by staff. 170. A review of Resident #4's clinical record revealed a nursing note dated July 1, 2008, 10:00 p.m., which stated that the Resident was found wandering into rooms of residents of the opposite sex while they were sleeping and also touching them. The staff tried to redirect the Resident who became combative. Intramuscular Haldol was given. 171. A review of Resident #4's clinical record revealed no additional documentation regarding the July 1, 2008, incident. 172. A review of the Facility's July 2008 Monthly Facility/Resident Incident Analysis Log had a total 10 entries as of July 9, 2008, and did not reflect any reporting initiated by the Facility for the July 1, 2008, incident. 173. A review of Resident #4’s clinical record revealed a History and Physical dated June 25, 2008, from the Resident's acute care hospitalization, which indicated medical diagnoses of Methicillin Resistant Staphylococcus Aureus (MRSA) nares (nostrils), dementia with 27 * psychosis, alcohol abuse and seizures. 174. A review of the Resident’s clinical record revealed an infectious disease consultation from the acute care hospitalization dated June 26, 2008, for MRSA colonization. 175. Under the consultation’s Impression and Plan, it was stated that the Resident was noted as having a MRSA colonization with a nares culture. The plan was to apply Bactroban ointment to the Resident for a couple of days, and then continue to repeat MRSA treatment once a week until all three cultures were negative. In the meantime, the hospital staff was to continue apply the Bactroban ointment. 176. Resident #4 July 2008 physician's orders indicated the following medications: a. Gentamycin, 0.3% one drop in both eyes twice a day (10 days). b. Haldol, Smg/ml 0.2ml intramuscular injection every 6 hours as needed. c. Ativan, 0.5mg one tablet by mouth twice a day. d. Seroquel, 25mg one tablet by mouth twice a day. 177. A review of Resident #4's June 2008 physician's orders revealed an order dated June 28, 2008, for Mupirocin, 2% ointment (antibiotic) to nares, axilla, groin twice a day. 178. A review of the hospital's Discharge-Physician Medication Reconciliation dated and signed June 28, 2008, indicated Mupirocin, 2% Ointment: apply to nares, axilla and groin, which was initiated on June 26, 2008. 179. The June 2008 order for Mupirocin was not continued by the Respondent Facility onto the July 2008 physician orders. 180. There was no discontinuation order for the Mupirocin ointment. 181. A review of Resident #4 care plans dated June 28, 2008, did not reflect ongoing Facility assessment of documented wandering, resident-to-resident behaviors or infection control 28 * precautions. 182. The Facility in-service roster titled Bloodborne Pathogens/Infection Control dated April 15, 2008, was reviewed with no additional information revealed. 183. The Facility procedure and protocol titled Infection Control Manual, dated October 2000, which identified "Staphylococcal disease (S. aureus): Multidrug-resistant" under "standard precautions" for facility implementation was reviewed. 184. The Standard Precautions stated: Care will be provided to assure appropriate use of barriers to protect all employees and patients from potentially infectious body substances. .. . h. Patient Placement: 1. Place the patient who contaminates the environment or who does not or cannot assist in maintaining appropriate hygiene or environmental control in a private room. 2. If a private room is not available, consult with an Infection Control Professional regarding patient placement alternatives. 185. During an interview with the Administrator on July 11, 2008, at approximately 10:15 a.m., it was revealed that there was no further information available regarding the reporting/investigation/ongoing assessment of the July 1, 2008, wandering and resident-to- resident incident or the treatment of Resident #4's infectious disease diagnosis/physician recommendations. Resident #3 186. Resident #3 resided in the Facility's unsecured 100 Hall. 187. Resident #3 resided in the Facility from December 13, 2007, to January 15, 2008. 188. Resident #3 was admitted to the Facility following an acute care hospitalization on December 2-13, 2007. 189. Resident #3's hospital History and Physical dated December 2, 2007, indicated 29 * that the Resident had a significant medical history for alcohol abuse. 190. A review of a cardiology consultation dated December 2, 2007, stated that the Resident was taking Librium, 25 mg, three times a day (a benzodiazepine). 191. The hospital Impression stated that the Resident was suffering from alcohol withdrawal and was having recurrent tremors. 192. Resident #3's list of medical diagnoses on the History and Physical included alcohol abuse/use, anxiety and macular degeneration. 193. A review of Resident #3's December 2007 physician's orders revealed the medication of Vicodin, 5/500 one tablet by mouth every eight hours as needed. 194. A review of Resident #3's clinical record revealed a nursing note written by the 3- 11 100 Hall LPN Supervisor dated December 19, 2007, at 4:00 p.m., which stated that the Resident indicated to his or her spouse and family member that a male CNA raped him or her. The spouse went to day supervisor. The Resident was experiencing delusions and confusion and an attempt was made to redirect the Resident. There was also an attempt to reassure the Resident about his or her safety. The Resident indicated that he or she did not want a male CNA in room. The Facility spoke to the Resident’s family. 195. An additional review of Resident #3's clinical record revealed a nursing note written by the 3-11 100 Hall LPN Supervisor dated January 28, 2008 (13 days after Resident #3 was discharged), which stated that during the issue on December 19, 2008, 3-11 shift, pertaining to the Resident's statement of CNA raping him or her, the spouse was present in the hallway outside of the Resident’s room. The spouse understood and noted the Resident's confusion. The Resident remained stable. 196. A review of the Facility's December 2007 Monthly Facility/Resident Incident 30 * Analysis Log did not reveal a report for Resident #3 for the alleged rape on December 19, 2007. 197. During an interview with the 3-11 100 Hall LPN Supervisor on July 9, 2008, at 3:30 p.m., the LPN Supervisor stated that the male CNA (Employee #7) assigned to Resident #3 had attempted to assist the Resident out of bed to the main dining room for dinner, but the Resident refused. 198. The LPN Supervisor stated that she was told by the Resident's spouse that the Resident was alleging that a rape had occurred during a medication pass at approximately 4:00 p.m. 199. She also stated that she should have reported the incident then, but she did not believe that anything had happened. 200. During an interview with the ADON on July 9, 2008, at approximately 2:15 p.m., it was revealed that the ADON did not actually know if the alleged rape on December 19, 2007, was ever reported, but believed that the Administrator had reported the incident. 201. The ADON further stated that if the Facility reported every incident “You guys would be in here all the time.” 202. During an interview with the CCC/RM on July 9, 2008, at approximately 2:45 p.m., it was revealed that the Facility realized the allegation of rape had not been reported or investigated only because a corporate consultant had reviewed the chart between December 17- 19, 2007, with a follow-up on January 25, 2008, and noted there was no Facility intervention. 203. The CCC/RM stated that she should have completed an incident report and that she did not do so. She believed that the SSD or Administrator called it into the Abuse Hotline. 204. A review of a report dated April 16, 2008, from a state protective service stated that the Resident #3 had told his or her spouse that a male CNA had raped him or her. The 31 " spouse in turn told a nurse, who noted the allegation in the facility notes. The allegation, however, was not reported to the Department of Health or local law enforcement. The nurse at the Facility determined that a sexual battery had not occurred. 205. A review of the Facility’s policy and procedure titled Abuse Protection and Response Policy -- Heather Hill Healthcare Center, undated, stated in part: “TV. The center Administrator is responsible for the assuring that safety in the patient environment is the highest priority, including freedom from the risk of abuse. ... To that end, the Administrator will put the following policies and procedures in place, will monitor to assure that the outcome of the policies and procedures results in the freedom from abuse, and assure that all staff are routinely oriented to their obligation to prevent abuse. . . .” Training issues (page 2): Policy: The center will train all staff, through orientation and ongoing in-services in abuse prevention and response. Procedure: In Service training will include at a minimum: What constitutes abuse, neglect and misappropriation of patient property. The reporting system established by the center.... Prevention issues (page 2): Policy: The center will provide supervision and support services designed to reduce the likelihood of abusive behaviors. Procedure: All supervisory staff will identify inappropriate behaviors . . . and will take immediate steps to correct such behaviors. Policy: The center will seek and accept complaints from patient, patient families . . . without reprisal. Procedure: The right to report a concern or incident is not limited to a formal, written grievance process but includes any verbalized complaint to any facility staff. Prompt efforts will be made to resolve concerns. Policy: Patients with needs and behaviors that might lead to conflict with staff or other patients will be identified by the Care Planning team, with interventions and follow through designed to minimize the risk of conflict. 32 Procedure: Any patient identified as having behaviors which might lead to conflict or neglect, such as: a. patients with a history of aggressive behaviors b. patients who enter other resident's rooms while wandering c. patients with self-injurious behaviors, or history of self inflicted injuries d. patients with communication disorders e. patients who require heavy nursing care or are totally dependant on nursing care will be considered as potential victims of abuse. The interventions designed to meet the needs of such patients will include but will not be limited to a. identification of patients whose personal histories render them at risk for abusing other patients or staff, b. assessments of appropriate intervention strategies to prevent occurrences c. monitoring the patient for any changes that would trigger abusive behaviors d. reassessment of the protective strategies on a regular basis Identification issues (page 3): Policy: Any patient event reported to any staff member by patient, family, staff or any other person will be considered as possible abuse that meets any of the following criteria: ...Unreasonable confinement, to include unwanted restriction of access to all patient areas of the building and any restraint that a patient has not been assessed and care planned for any patient or family complaint of physical harm, pain or mental anguish resulting from the actions of others... . Any complaint of sexual harassment, sexual coercion or sexual assault....Any instances of hitting, slapping, pinching, or kicking or other potentially harmful action. Any behavior control strategy involving corporal punishment. Procedure: Staff observing or hearing about such events will report the event immediately to the central abuse registry... . The event will also be reported immediately to the immediate supervisor, center social worker, Director of Nursing, or Administrator. The supervisor will initiate action. Investigative Issues (page 3): Policy: Any partner having either direct or indirect knowledge of any event that might constitute abuse must report the event promptly or risk being investigated as a perpetrator. Procedure: Any partner having any knowledge of any of the above circumstances is required to promptly report to the central registry... . The event will also be reported to the supervisor, center social worker, Director of Nursing, or 33 Administrator. Policy: All events reported as possible abuse will be investigated to determine whether abuse did or did not take place. Procedure: Supervisory staff will initiate investigative action. The Administrator of the center, the Director of Nurses and/or Social Worker will be notified of the complaint and action being taken as soon as is practicable. . . . Reporting and Response Issues (page 4): Policy: All reports of possible abuse will be immediately reported to the central abuse registry and will be assessed to determine the direction of the investigation. Policy: Trends of investigative findings will be analyzed addressed by the QA/QI (quality assurance/quality improvement) committee process Procedure: An accurate summary reporting of all investigations conducted by the center will be maintained as a working document of the Quality Assessment Quality Improvement Committee. QA/QI will review and analyze investigations to track and determine presence of any trends, as directed by the Quality Review Committee. . . . 206. A review of the Facility’s policy and procedure titled “Administrator’s Handbook for Abuse, Neglect and Exploitation,” dated May 2001, stated: I. Policy (page 39): Abuse, neglect and/or exploitation will not be tolerated in any form at the nursing center. The center administrator is responsible for assuring that patient safety, including freedom from abuse, neglect, and exploitation, is of the highest priority. III. Prevention of Abuse, Neglect and Exploitation (page 40): B. Training. 1. Policy: All staff members will be trained and demonstrate awareness of the federal and state guidelines for abuse prevention, reporting and investigation including recognition and appropriate response. ... 2. Procedure: a. Training will be presented at orientation, annual in-services and special staff education sessions, as needed, ... b. Random QA/QI audits should be performed to demonstrate employee proficiency and/or developmental needs. C. Supervision and Support. Policy: The center should provide supervision and support services designed to reduce the potential for abuse, neglect and exploitation. D. Grievance Procedure. Policy: The center should seek and accept complaints, 34 grievances and concerms from patients, family members, visitors and staff without reprisal. E. Identification of "At Risk" Patients. 1. Policy: The center should identify patients who may be more at risk for possible abuse, neglect or exploitation because of behaviors or physical or mental conditions. IV. Identification of Abuse, Neglect and Exploitation (page 41): A. Policies: Patient events or occurrences reported to any staff member by patients, family, visitors or other staff should be considered as possible abuse if they meet any one of the following criteria... . b. Unreasonable confinement, including unwanted restriction of access to all patients areas of the center... . c. Any complaint of physical harm, pain or mental anguish as a result of the actions of others.... f. Any complaint of sexual harassment, sexual coercion or sexual assault... g. Any instances. of hitting, slapping, pinching, kicking or other potentially harmful actions... . h. Any behavior-control strategy involving corporal punishment. ... 2. Staff members observing or hearing about such events should report the event immediately to the central Abuse Registry .... The event should also be reported immediately to the supervisor, social worker, Director of Nurses, or Administrator. The staff member takes initial responsibility for: ... c. Judging the urgency of the circumstances... d. Notifying the appropriate person immediately. . . . V. Investigation and Reporting of Abuse, Neglect and Exploitation (page 42): A. Investigation and Protection of Patients. 1. Policies: a. All events reported as possible abuse will be investigated to determine whether abuse occurred....2. Investigation Procedure: The following reporting forms ... consider and describe all aspects of an event... : B. Reporting Abuse, Neglect or Exploitation: 1. Policy: All instances of possible abuse will be reported immediately to the central Abuse Registry and to other agencies as deemed appropriate .... 2. Reporting Procedure: Abuse Registry, State survey/certification agency, facility’s Abuse Officer and facility’s clinical consultant for Risk Management follow-up. VI. Responding to Abuse, Neglect and Exploitation (page 43). D. The QA/QI committee should address trends and common factors discovered through investigations." Review of the facility’s policy and procedure for "Risk Management and Quality Assurance. 207. A review of the Facility’s policy and procedure titled “Administrator’s Handbook 35 * for Incidents,” revised August 2002, stated: II. Policies: The center should document and report incidents, adverse incidents, allegations of sexual misconduct and liability claims filed against the center, as prescribed by State statutes. A. The center has a statutory responsibility to document, report, analyze and quickly respond to all incidents, accidents and misconduct. . . . D. The Risk Manager should investigate every allegation of sexual misconduct which is made against a member of the center’s staff who has direct patient contact when the allegation is that the misconduct occurred at the center or the grounds of the center... . II. Responding to Incidents and Injuries: In all cases, patients, . . . should first encounter the center’s fundamental commitment to quality care and compassion... B. Reporting and Investigating. 1. Patients. All employees of the center have a statutory responsibility to report incidents, accidents and misconduct immediately. ... b. Any incident may be investigated at the direction of the Administrator, Risk Manager or DON. However, investigations are usually reserved for incidents in which events were not witnessed, whether the patient is alert and oriented or not.... d. If there are indications or suspicions of abuse, report these findings to the appropriate agency immediately. ... e. Report Adverse Incidents to state agencies or law enforcement, as instructed. . . . C. Documenting]. Patients a. Complete an Incident report for every event. . .. D. Communicating. 1. Patients. a. Report all incidents to an appropriate members of the patient’s family as soon after the event as reasonable. b. Report all incidents to the patient’s physician. ... E. Analyzing, Tracking and Trending. .. . 2. The center should also actively track and trend all incidents and accidents: . . . V. Patient Incident Reporting and Follow-up Procedure by Responsible Person D. Administrator:1. Review, . . . and sign completed Incident Reports daily or every 2 days; . . . 2. Initiate, participate in, review investigations, as needed. a. Assist RM and DON in determining whether investigations are complete or whether there are indications of abuse. b. Supervise and/or participate in notification of local law enforcement and State agencies as necessary. . . 36 208. The Respondent’s actions constituted a widespread class I deficiency. 209. Acclass I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstand- ing the correction of the deficiency. § 400.23)8)(a), Fla. Stat. (2008). 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 fifteen thousand dollars ($15,000.00). COUNT III Six-Month Survey Cycle Fine 210. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 211. The Agency re-alleges and incorporates by reference Count J and II. 212. Under Florida law, the Agency shall every 15 months conduct at least one unannounced inspection to determine compliance by the licensee with statutes, and with rules promulgated under the provisions of those statutes, governing minimum standards of construc- tion, quality and adequacy of care, and rights of residents. The survey shall be conducted every 6 months for the next 2-year period if the facility has been cited for a class I deficiency, has been 37 * cited for two or more class II deficiencies arising from separate surveys or investigations within a 60-day period, or has had three or more substantiated complaints within a 6-month period, each resulting in at least one class I or class II deficiency. In addition to any other fees or fines in this part, the Agency shall assess a fine for each facility that is subject to the 6-month survey cycle. The fine for the 2-year period shall be $6,000, one-half to be paid at the completion of each survey. § 400.19(3), Fla. Stat. (2008). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to impose a six-month survey cycle fine against the Respondent in the amount of six thousand dollars ($6,000.00). COUNT IV Assignment of Conditional Licensure Status 213. The Agency re-alleges and incorporates by reference paragraphs 1 through 5. 214. The Agency re-alleges and incorporates by reference Count J and II. 215. Due to the presence of a state class I deficiency that was not corrected within the time established by the Agency, the Respondent was not in substantial compliance at the time of the survey with criteria established under Chapter 400, Part II, Florida Statutes (2008), and the tules adopted by the Agency. 216. The Agency assigned the Respondent conditional licensure status with an action effective date of July 11, 2008. The original certificate for the conditional license is attached as Exhibit A and is incorporated by reference. 217. The Respondent has not yet corrected these deficiencies and thus the Agency has not determined whether the Respondent is in substantial compliance with the criteria established under Chapter 400, Part II, Florida Statutes (2008), and the rules adopted by the Agency. 218. The Agency has not yet issued the Respondent standard licensure status with an 38 * action effective date. Once the Agency has determined that the Respondent is in substantial compliance with the criteria established under Chapter 400, Part II, Florida Statutes (2008), and the rules adopted by the Agency, it will issue the Respondent a standard license. The original certificate for the standard license, if issued, will be forwarded to the Respondent as Exhibit B and will then be incorporated by reference. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to enter a final order assigning conditional licensure status to the Respondent for the period between the assignment of the conditional license and the issuance of the standard license. 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 against the Respondent as follows: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine in the amount of twenty five thousand dollars ($25,000.00.). 3. Impose a six-month survey cycle fine in the amount of six thousand dollars ($6,000.00). 4. Assign conditional licensure status to the Respondent for the period between the issuance of the conditional license and the issuance of the standard license, if issued. 5. Assess costs related to the investigation and prosecution of this case. 6. Enter any other relief that this Court deems just and appropriate. 39 Respectfully submitted on this 31st day of July, 2008 Thomas M. Hoeler, Senior Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel Sebring Building, Suite 330D 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 orney 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 were served to: Kenneth F. Keyes, Registered Agent, Heather Hill Nursing Center, LLC, 6630 Kentucky Avenue, New Port Richey, Florida 34653, by U.S. Certified Mail, Return Receipt No. 7007 1490 0001 6979 1441, and Tonya Lee Blackman, Administrator, Heather Hill Healthcare Center, 6630 Kentucky Avenue, New Port Richey, Florida 34653, by U.S. Mail, and Donna Holshouser Stinson, Esquire, Broad and Cassel, Sun 40 * Trust Bank Building, 215 South Monroe Street, Suite 400, T; lorida 32301 (courtesy copy), on this 31st day of July, 2008. Copies furnished to: Kenneth F. Keyes, Registered Agent Heather Hill Nursing Center, LLC 6630 Kentucky Avenue New Port Richey, Florida 34653 (U.S. Certified Mail) Tonya Lee Blackman, Administrator Heather Hill Healthcare Center 6630 Kentucky Avenue New Port Richey, Florida 34653 (U.S. Mail) Thomas M. Hoeler, 8€nior Attorney Florida Bar No. 709311 Agency for Health Care Administration Office of the General Counsel Sebring Building, Suite 330 525 Mirror Lake Drive North St. Petersburg, Florida 33701 Telephone: (727) 552-1439 Facsimile: (727) 552-1440 Pat Caufman, Field Office Manager Agency for Health Care Administration 525 Mirror Lake Drive North, Fourth Floor St. Petersburg, Florida 33701 (Interoffice Mail) Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel Sun Trust Bank Building 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 (courtesy copy), (Interoffice Mail) | | 41 Exhibit A Original Certificate of Conditional License 42

Docket for Case No: 08-004094