STATE OF FLORIDA 7 AGENCY FOR HEALTH CARE ADMINISTRATION” STATE OF FLORIDA, 0 ¥: U4 T / AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case Nos. 2008008434 2008008435 THE HOME ASSOCIATION, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against THE HOME ASSOCIATION, INC., (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2007), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing May 31, 2008 and ending July 1, 2008, impose an administrative fine in the sum of twelve thousand five hundred dollars ($12,500.00) and a survey fee of six thousand dollars ($6,000.00) for a total assessment of eighteen thousand five hundred dollars ($18,500.00), based upon Respondent being cited for one Isolated State Class I deficiency and one Isolated State Class II deficiency. JURISDICTION AND VENUE 1, The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2007). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a 96-bed nursing home, located at 1203 East 224 Avenue, Tampa, FL 33605, and is licensed as a skilled nursing facility license number 12400962. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 7. That pursuant to 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)(1), Fla. Stat. (2007). 8. That Florida law provides the following: “‘Practice of practical nursing’ means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. The professional nurse and the practical nurse shall be responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(b), Fla. Stat. (2007). 9. That on or about May 31, 2008, the Agency completed a complaint survey (CCR#2008007033) of Respondent’s facility. 10. That based upon interview and the review of records, Respondent failed to ensure that a resident received adequate and appropriate health care and protective services following an allegation of sexual abuse, the same being contrary to law. 11. That Petitioner’s representative reviewed Respondent’s records for resident number three (3) during the survey and noted as follows: a. The resident was re-admitted to the facility on March 16, 2008 per the ‘resident's face sheet; b. The latest Minimum Data Set assessment was completed on March 27, 2008 reflecting, in the section for cognitive patterns, that the resident is coded as having no long term memory problem, does have short term memory problems, and is moderately impaired in decision making. The resident is further coded as being totally dependent in transfer and ambulation, needing extensive assistance in dressing, totally dependent in toileting, and incontinent of bowel and bladder; e. A nurse’s note, dated May 23, 2008 at 10:10 a.m., documented “alert and oriented and able to make needs known." A social service progress note, written by the social service director on March 23, 2008, documented "Alert and oriented to time, person, short term memory impairment, exhibits poor judgment and insight. Able to understand simple instruction and make needs known;” The resident resides alone in a private room. 12. That Petitioner’s representative interviewed Respondent’s certified nursing assistant number sixteen (16) during the survey who indicated as follows: a. b. d. €. That part of her responsibilities include that care of resident number three (3); That on May 21, 2008, resident three (3) told the certified nursing assistant that the resident had been “finger raped” in the early morning hours of May 21 by an unknown male; That the certified nursing assistant reported the allegations of resident number three (3) to two of Respondent’s nurses; That she then saw the two nurses interview resident number three (3); . That one of the nurses informed Respondent’s unit nurse via a written note. 13. That Petitioner’s representative interviewed Respondent’s licensed practical nurse number twelve (12) who indicated as follows: a. That she was one of the two nurses that was informed of the allegation of resident number three (3) made to certified nursing assistant sixteen (16); That she interviewed resident number three (3) with the other nurse at around 7: 30 a.m. on May 21, 2008 and the same information regarding being raped was conveyed by the resident as had been told to the certified nursing assistant. 14. That Petitioner’s representative interviewed Respondent’s unit manager during the survey who indicated as follows; a. That on the morning of May 21, 2008, he was given a note by the 11 p.m. to 7 a.m. licensed practical nurse who had written it that day; b. The note provided "Since the Risk and Abuse Manager will not be in today, I have decided to write this letter for you to take immediate action. CNA reported to me this morning that [resident number three (3)] told [the CAN] that [the resident] got raped by a guy last night. I went to [the resident’s] room with the oncoming nurse to interview [the resident]. [The resident] did say in our presence that [the resident] got raped by a guy. [The resident] also said that the guy used his fingers on [the resident]. For your action please.” c. The Unit Manager stated he interviewed resident number three (3) and asked the resident what happened; d. He stated resident number three (3) told him, "...He came in, I didn't understand what he was doing, he opened my gown. Who was he?" e. The Unit Manager stated he told the resident that it was a certified nursing " assistant and then asked the resident "You said he fingered you, show me. f. He stated the resident showed him and it "looked to me like he was just cleaning her"; g. The director of nursing and assistant director of nursing were not in the facility at that time, and he did not tell anyone on May 21, 2008 of the resident's allegation; h. On May 22, 2008, he mentioned to the director of nursing that the resident had alleged being inappropriately touched and he had completed an investigation; i. He stated that he did not put anything in writing, did not call the abuse hotline or the police, and that no one examined the resident for injury. 15. That Petitioner’s representative telephonically interviewed Respondent’s director of nursing on May 31, 2008 who indicated as follows: a. The unit manager told her on May 23, 2008 that a resident stated that the resident was inappropriately touched by a male certified nursing assistant during care; b. That she instructed the unit manager to complete his investigation; c. That this was all that was discussed and she informed no one else of the allegation. 16. That Petitioner’s representative interviewed Respondent’s assistant director of nursing twice on May 31, 2008 who indicated as follows: a. That she was out of the building May 20 through 26, 2008 and returned to work on May 27, 2008; b. On May 27, 2008, she received a call from the physician of resident number three (3) asking about the resident's abuse allegation; c. She knew nothing about an abuse allegation and began an investigation on May 27, 2008; d. She found that resident number three (3) had reported an allegation of sexual abuse, by a male, to a certified nursing assistant on May 21, 2008 and that the certified nursing assistant had reported it to two licensed practical nurses on the unit; The licensed practical nurses reported the allegation to the Respondent’s unit manager both verbally and in writing on may 21, 2008; The unit manager interviewed resident number three (3) and determined that there was no sexual abuse, "just normal care and went no further with his investigation." On May 21, 2008, the date of the alleged abuse, no one in the facility reported the allegation of sexual abuse to the Respondent’s administrator, the abuse hotline or the police; No one physically examined the resident for injury; No one called the resident’s physician regarding the allegation of rape; No one called the resident’s family regarding the allegation of rape; No federal immediate report was completed regarding the allegation of rape; No notification to the State of Florida was notified of the allegation of rape; The employee who was alleged to be the perpetrator of the alleged sexual abuse was not suspended; On May 27, 2008, she began her investigation and interviewed the alleged perpetrator, certified nursing assistant number two (2), certified nursing assistant number sixteen (16), and resident number three (3), licensed practical nurse number seventeen (17), and the unit manager; Resident number three (3) indicated that the rape took place between 2:00 a.m. and 4:00 a.m. on May 21, 2008 She determined that sexual abuse had not occurred; The alleged perpetrator told her that, around 4 A.M. on May 21, 2008, he had changed the resident and put Nystatin cream on the residents peri area and buttocks as ordered by the physician; She concluded that this was why the resident had made the allegation; On May 28, 2008 she contacted the Abuse hotline, told the operator that a resident had alleged abuse and that the facility had investigated and it was unfounded; The abuse hotline operator told her "it appears it has already been investigated and is not an allegation of abuse" and would not accept the report; She did not do a Federal Immediate Report or a five (5) day report and did not contact the state agency; She did produce a one (1) day state mandated report that she said she faxed to the state agency on May 28, 2008 but was unable to provide any documentation of proof of faxing; . She stated that she "reminded" the unit manager and one of the licensed practical nurses that they should have followed the facility abuse policy but did not put anything in writing; Certified nursing assistant number two (2), the alleged perpetrator, was not suspended and is still employed at the facility; The last in-service on abuse policies and procedures was offered on April 14, 2008; Zz. There had been no in-service with facility staff on abuse policies and procedures since the allegation of resident number three (3) was made. 17. That Petitioner’s representative reviewed Respondent’s staffing schedules and noted as follows: a. Certified nursing assistant number two (2), the alleged perpetrator, worked the 11 p.m. to 7 a.m. shift on May 20, 23, 24, 25, 26, 27, 28, 29, and 30, 2008; b. During this time, certified nursing assistant number two (2) was assigned to the unit where resident number three (3) is a resident; c. Certified nursing assistant number two (2) worked on the 11 p.m. to 7 a.m. shift covering the morning of May 21, 2008, when the alleged rape occurred. 18. That Petitioner’s representative observed certified nursing assistant number two (2) in the facility at 6:15 a.m. on the morning of May 31, 2008 and was noted on the written schedule on the staff board for a different unit. 19. Petitioner’s representative interviewed certified nursing assistant on May 31, 2008 at 6:15 a.m. who indicated that he is currently working on this different unit and that this unit does include female residents. 20. That Petitioner’s representative interviewed Respondent's director of social services who indicated that none of the female residents on that particular unit were cognitively aware enough to be interviewed. 21. __ Petitioner’s representative interviewed resident number three (3), an alert and oriented individual, on May 31, 2008 at 2: 20 p.m. who indicated: a. That it was not certified nurse number two (2) that applied the cream to the resident’s buttock on the date in question; b. c. A female nurse applied the cream to the resident on the date in question; “He raped me is all I know.” 22. That Petitioner’s representative further reviewed Respondent’s records regarding resident number three (3) during the survey for information regarding the resident’s allegation of having been sexually abused and noted the following: a. There was no documentation on May 21, 2008 regarding the allegation of sexual abuse; The only annotation that references the incident was written on May 23, 2008 at 5 p.m. by licensed practical nurse number seventeen (17), which stated "Resident's (family) reported to this writer that resident told [family member] that [resident] was raped. [Family member] stated that nobody told [family member] about it. I told [family member] that it was reported to me and another nurse and I followed the chain of command and reported it to the Unit Manager." Further notes in the record relate to the facility discussions with the resident's family. There is no documentation from May 21 through 27, 2008 that the resident was examined or assessed physically after the resident’s allegation of having been sexually abused; There is no documentation from May 21 through 27, 2008 that the resident was examined or assessed emotionally after the resident’s allegation of having been sexually abused. 23. That based upon the interviews of certified nursing assistant number sixteen (16), licensed practical nurse twelve (12), the unit manager, and the assistant director of nursing, Respondent assumed that certified nursing assistant number two (2) was the perpetrator of the alleged abuse and did not investigate the possibility of another assailant, including the unit manager informing resident number three (3) that it was certified nursing assistant two (2) who had cared for the resident. 24. not: That based upon the interviews and records reviewed as above alleged, Respondent did Interview other residents of the unit regarding the allegations of resident number three (3); Take any action to protect resident number three (3) from an individual alleged to have committed sexual abuse; Take any action to protect other residents of the Respondent facility from an individual alleged to have committed sexual abuse; Take action to assess or examine resident number three (3) for physical injury at the time of the resident’s allegation or thereafter, despite continued expressions of the event’s occurrence by the resident for at least six (6) calendar days; Take action to assess or examine resident number three (3) for psychosocial injury at the time of the resident’s allegation or thereafter, despite continued expressions of the event’s occurrence by the resident for at least six (6) calendar days; 1] 25. That review of the facility's policy entitled "Abuse Prevention Program" (undated) provides: 26. "The Administrator is responsible for the coordination and evaluation of abuse policies and procedures. There is to be evidence in The Home that these policies and procedures have been operationalized to prohibit abuse, neglect, involuntary seclusion and misappropriation of property for all residents. The Administrator is responsible for investigation reporting and coordination of process for any alleged abuse. The Home staff are trained and knowledgeable about abuse prevention which will include the following: How, what, when and to whom to report suspected abuse without reprisal, what constitutes abuse, mistreatment, neglect and misappropriation of resident property, what measures are taken to protect residents who has reported abuse." That review of the facility's policy, titled "Abuse Investigation” and dated October 2005, provides the following: "The facility will investigate all accident and incidents. The Administrator, who is appointed as the responsible for abuse prevention, will develop and implement facility procedures to ensure than an investigation is documented and completed in a timely manner. An investigation will begin immediately upon knowledge of an accident or incident. The facility and alleged perpetrator shall comply with the departments authorization to assess the reported incident and will provide cooperation and all required information to the fullest extent. Employees accused of an event will be taken off the schedule until a full investigation is completed. The results of the investigation must be reported to the state agency, the management office and the President of the Board of Directors within 5 working days of the incident. Reporting and response to investigation: Information to be reported is the name, address and phone of: 1. person alleged to have been abused , to include age, gender 2. his/her family members (consent of assessment of résident by authorized parties) 3. alleged perpetrator 4. caregiver (if other than perpetrator) 5 person making the report 6 description of any/all sustained injures 7 any other related and helpful information Protection of the Resident: Upon notification of appropriate parties, the Medical Director may be called at the discretion of the DON who along with the Administrator will assure the resident of his/her safety. The Body Check Sheet will be used at intervals to assess condition and evaluate immediate psychosocial needs prior to protective services team intervention. The DON will assign specific staff resident's care." 27. That Petitioner’s representative interviewed Respondent’s administrator on May 31, 2008 who indicated as follows: c. That she was not made aware of the allegation of sexual abuse until May 27, 2008; That the Unit Manager "did an investigation and thought he had done it correctly but he did not, and he also did not write his investigation down.” “We did not follow policy.” 28. That Respondent failed to provide adequate and appropriate health care and protective and support services, including social services and mental health services, including, but not limited to: The failure to suspend the alleged perpetrator and remove the suspect from further resident contact; The failure to document its investigation; The failure to report the allegation to the federal and state authorities; The failure to report the allegation internally as required; The failure to provide assessment and care for both physical and psychosocial well-being of the victim; The failure to take action to protect the victim from further abuse; 13 g. The failure to protect other residents from potential abuse. 29. That the Agency determined that this deficient practice presented a situation in which immediate corrective action was necessary because Respondent’s non-compliance had caused, or was likely to cause, serious injury, harm, impairment, or death to a resident receiving care in Respondent's facility and cited Respondent with an Isolated State Class I deficiency. 30. The Agency provided Respondent with the mandatory correction date for this deficient practice of June 3, 2008. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of ten thousand dollars ($10,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(a) and 400.102, Florida Statutes (2007). COUNT II 31. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 32. That pursuant to 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 be free from mental and physical abuse.... § 400.022(1)(0), Fla. Stat. (2007). 33. That pursuant to Section 415.1034(1)(a), Florida Statutes (2007): MANDATORY REPORTING.-- (a) Any person, including, but not limited to, any: 1. Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, paramedic, emergency medical technician, or hospital personnel engaged in the admission, examination, care, or treatment of vulnerable adults; 34. 2. Health professional or mental health professional other than one listed in subparagraph 1; 3. Practitioner who relies solely on spiritual means for healing; 4. Nursing home staff; assisted living facility staff; adult day care center staff; adult family-care home staff; social worker; or other professional adult care, residential, or institutional staff; 5. State, county, or municipal criminal justice employee or law enforcement officer; 6. An employee of the Department of Business and Professional Regulation conducting inspections of public lodging establishments under s. 509.032; 7. Florida advocacy council member or long-term care ombudsman council member; or 8. Bank, savings and loan, or credit union officer, trustee, or employee, who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse hotline. That pursuant to Section 415.1034(1)(b), Florida Statutes (2007): (b) To the extent possible, a report made pursuant to paragraph (a) must contain, but need not be limited to, the following information: 1. Name, age, race, sex, physical description, and location of each victim alleged to have been abused, neglected, or exploited. 2. Names, addresses, and telephone numbers of the victim's family members. 3. Name, address, and telephone number of each alleged perpetrator. 4. Name, address, and telephone number of the caregiver of the victim, if different from the alleged perpetrator. 5. Name, address, and telephone number of the person reporting the alleged abuse, neglect, or exploitation. 6. Description of the physical or psychological injuries sustained. 7. Actions taken by the reporter, if any, such as notification of the criminal justice agency. 8. Any other information available to the reporting person which may establish the cause of abuse, neglect, or exploitation that occurred or is occurring. 35. That on or about May 31, 2008, the Agency completed a complaint survey (CCR#2008007033) of Respondent's facility. 36. That based upon the review of records and interview, Respondent failed to ensure that an allegation of abuse to its agents was immediately reported to the central abuse hotline and allowed the alleged perpetrator continuing to work with vulnerable elders in the facility. 37. The Agency re-alleges and incorporates paragraphs eleven (11) through twenty-two (22), and twenty-five (25) through twenty-seven (27) as if fully set forth herein. 38. That there is no documentation from May 21, through May 27, 2008 that anyone in the facility reported the allegation of sexual abuse to the central abuse hotline. 39. That the Respondent’s actions, through its agents, failed to: a. Comply with its policy and procedure regarding abuse and neglect; | b. Report an allegation of abuse to the central abuse hotline; c. Failed to take actions to protect the purported victims and other residents from an alleged perpetrator of sexual abuse. 40. That the failures of Respondent constituted, individually and collectively, a failure to ensure that its residents were free from mental or physical abuse. 41. The Agency determined Respondent had not provided the necessary care and services and had compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care and provision of services and cited this deficient practice as an isolated State Class II deficiency. 42. The Agency provided Respondent with the mandatory correction date for this deficient practice of June 30, 2008. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of two thousand five hundred dollars ($2,500.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to §§ 400.23(8)(b) and 400.102, Florida Statutes (2006). COUNT Il 43. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Counts I and IJ as if fully set forth herein. 44. Respondent has been cited for one (1) State Class I deficiency and one (1) State Class II deficiency and therefore is subject to a six (6) month survey cycle for a period of two years and a survey fee of six thousand dollars ($6,000) pursuant to Section 400.19(3), Florida Statutes (2008). WHEREFORE, the Agency intends to impose a six (6) month survey cycle for a period of two years and impose a survey fee in the amount of six thousand dollars ($6,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to Section 400.19(3), Florida Statutes (2008). COUNT IV 45. The Agency re-alleges and incorporates paragraphs one (1) through five (5) and Counts I and II of this Complaint as if fully set forth herein. 46. Based upon Respondent’s one cited State Class I deficiency and one cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2008). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2008) commencing May 31, 2008 and ending July 1, 2008. Respectfully submitted this | | day of August, 2008. {lL Thomas J. Walsh II, Esquire Fla. Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1525 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2005), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by USS. Certified Mail, Return Receipt No: 7007 1490 0001 6979 1465 on August Ul , 2008 to: Jacqueline Frances Hurt, Administrator, The Home Association, Inc., 1203 East 224 Avenue, Tampa, FL 33605, and by U.S. Mail to Kirsten Ullman, Registered Agent, 410 S. Ware Blvd., Suite 1100, Tampa, Florida 33619. Copies furnished to: Thomas J. Walsh, II, Esquire Jacqueline Frances Hurt, Administrator The Home Association, Inc. 1203 East 22" Avenue Tampa, FL 33605 (US. Certified Mail) Kirsten Ullman Registered Agent 410 S. Ware Blvd., Suite 1100 Tampa, Florida 33619 (U.S. Mail) Patricia Caufman Field Office Manager 525 Mirror Lake Dr., 4"" Floor St. Petersburg, Florida 33701 (Interoffice) Thomas J. Walsh II, Esquire Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Dr, 330G St. Petersburg, Florida 33701 (nteroffice)

Docket for Case No: 08-004979