OXSE0D STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2008010589 ALBOPORE, INC., d/b/a WESTBURY HOUSE, 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 ALBOPORE, INC., d/b/a WESTBURY HOUSE (hereinafter Respondent), pursuant to Section 120.569, and 120.57, Florida Statutes, (2008), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine in the amount of eight thousand dollars ($8,000.00) based upon one cited State Class I deficiency and three cited State Class II deficiencies pursuant to § 429.19(2){a) and (b), Florida Statutes (2008), and the imposition of a survey fee of five hundred dollars ($500.00) pursuant to the provisions of § 429.19(7), Florida Statutes (2008) for a total assessment of eight thousand five hundred dollars ($8,500.00). JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 20.42, 120.60 and Chapters 408, Part II, and 429, Part I, Florida Statutes (2008). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. 4. Respondent operates an 27-bed assisted living facility located at 7114 Congress Street, New Port Richey, Florida 34653, and is licensed as an assisted living facility with limited mental health, license number 5304. 5. Respondent was at all times material hereto a licensed 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 (1) through (5) as if fully set forth herein. 7. That pursuant to Florida law, an assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility and offer personal supervision, as appropriate for each resident, including, inter alia, a general awareness of the resident’s whereabouts. The resident may travel independently in the community. R. 58A- 0182(1)(c) Florida Administrative Code. 8. That on August 27, 2007, the Agency conducted a complaint survey (CCR# 2007008688) of the Respondent facility. 9. That based upon observation, the review of records, and interview, Respondent failed to provide care and services appropriate to resident needs and failed to offer personal supervision, including a general awareness of resident whereabouts, for one (1) of six (6) sampled residents, the same being contrary to law. 10. That Petitioner’s representative reviewed Respondent’s records relating to resident number two (2) during the survey and noted as follows: a. The resident was admitted to the facility on June 28, 2007 with diagnoses including Schizophrenia, Depression and Anxiety as reflected on the resident’s current health assessment dated July 17, 2007; b. An assessment by the resident’s physician dated April 12, 2007, faxed to and received by Respondent on June 28, 2007, documented the resident's long history of elopement from previous facilities and the resident’s attempts to walk in traffic. c. That noted in the clinical record is documentation that the resident eloped from the facility on July 2, 2007, was reported as a missing person, and was returned to the facility by the police per law enforcement documentation. 11. That petitioner’s representative noted during the survey that the Respondent facility does not have secured doors or gates to prevent a resident from eloping, thereby allowing all residents to pass freely. 12. _ That Petitioner’s representative observed resident number two (2) on August 27, 2007 commencing at 10:18 a.m. and noted as follows: a. At 10:18 a.m., the resident was playing “chicken” with a sport utility vehicle in the busy street in front of the facility; b. At approximately 3:45 p.m. two Ombudsman representatives were directing traffic around resident number two (2) who was lying in the middle of the road in busy traffic. 13. That Petitioner’s representative interviewed the representatives from the Ombudsman who indicated that Respondent’s staff were unaware of the whereabouts of resident number two (2) until it was brought to their attention by another resident yelling for assistance approximately eleven (11) minutes after the resident went out into the street. 14. That Petitioner’s representative interviewed a credible alert and oriented resident during the survey who indicated as follows: a. Resident number two (2) had a history of eloping from the facility to a city park about three @) miles from the facility; b. Resident number two (2) was usually found and brought back to the facility by law enforcement. 15. That Petitioner’s representative interviewed the responding law enforcement personnel on August 27, 2007 at approximately 4:25 p.m. who indicated that though resident number two (2) had entered traffic on two (2) occasions that day, no call from the facility was received, the ombudsman on site ultimately called for emergency services, and that that there have been several occasions when residents were reported as missing persons from this facility about four (4) to six (6) hours after elopement when it was realized the resident was gone. 16. That the failure to ensure that a resident known to exhibit elopement behaviors is monitored to ensure resident safety and well-being places the resident at risk of injury and is a failure to provide care and services appropriate to the resident and a failure to offer personal supervision, including a general awareness of resident whereabouts. 17. That the agency determined that the above constitutes grounds for the imposition of a Class I deficiency in that it presents an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefore. 18. That the same constitutes a Class I offense as defined in Florida Statutes 429.19(2)(a) (2008). 19. That the Agency provided a mandated correction date of August 31, 2007. WHEREFORE, the Agency intends to impose an administrative fine in the amount of $5,000.00 against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(a), Fla. Stat. (2008). COUNT II 20. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 21. That pursuant to Florida law, an individual must meet the following minimum criteria in order to be admitted to a facility holding a standard, limited nursing or limited mental health license, have been determined by the facility administrator to be appropriate for admission to the facility. The administrator shall base the decision on 1. An assessment of the strengths, needs, and preferences of the individual, and the medical examination report required by Section 429.26, F.S., and subsection (2) of this rule; 2. The facility’s admission policy, and the services the facility is prepared to provide or arrange for to meet resident needs; and 3. The ability of the facility to meet the uniform fire safety standards for assisted living facilities established under Section 429.41, F.S., and Rule Chapter 69A-40, F.A.C. Rule 58A-5.0181(1)(n)(1-3), Florida Administrative Code. 22. That on August 27, 2007, the Agency conducted a complaint survey (CCR# 2007008688) of the Respondent facility. 23. That based upon observation, the review of records, and interview, Respondent failed to ensure that one (1) of six (6) sampled residents was appropriate for admission to the facility, the same being contrary to law. 24. That Petitioner’s representative reviewed Respondent’s records relating to resident number two (2) during the survey and noted as follows: a. The resident was admitted to the facility on June 28, 2007 with diagnoses including Schizophrenia, Depression and Anxiety as reflected on the resident’s current health assessment dated July 17, 2007; b. A assessment by the resident’s physician dated April 12, 2007, faxed to and received by Respondent on June 28, 2007, documented the resident's long history of elopement from previous facilities and the resident’s attempts to walk in traffic. c. That noted in the clinical record is documentation that the resident eloped from the facility on July 2, 2007, was reported as a missing person, and was returned to the facility by the police per law enforcement documentation. 25. That petitioner’s representative noted during the survey that the Respondent facility does not have secured doors or gates to prevent a resident from eloping, thereby allowing all residents to pass freely. 26. That Petitioner’s representative observed resident number two (2) on August 27, 2007 commencing at 10:18 a.m. and noted as follows: a. At 10:18 a.m., the resident was playing “chicken” with a sport utility vehicle in the busy street in front of the facility; b. At approximately 3:45 p.m. two Ombudsman representatives were directing traffic around resident number two (2) who was lying in the middle of the road in busy traffic. 27. That Petitioner’s representative interviewed the mental health case manager for resident number two (2) during the survey who indicated as follows: a. That she had informed Respondent’s administrator of the elopement and behavior history of resident number two (2) prior to the resident’s admission to the Respondent facility; b. That she had informed Respondent’s administrator that resident number two (2) does much better in a structured environment such as a secured unit; c. That Respondent’s administrator accepted resident number two (2) for residency at the facility having this knowledge of the resident’s elopement and other behavioral history. 28. That the above reflect the failure of Respondent’s administrator to that ensure that resident number two (2) was appropriate for admission where the Respondent was aware of the elopement and other behaviors of the resident, was aware of the services which Respondent could provide, and was not prepared to provide or arrange for services necessary to meet the needs of the resident presented by elopement and other behaviors. 29. That the Agency determined that this deficient practice was related to the operation and maintenance of the Facility, or to the personal care of Facility residents, and directly threatened the physical or emotional health, safety, or security of the Facility residents. 30. That the Agency cited the Respondent for a Class II violation in accordance with Section - 429.19(2)(b), Florida Statutes (2008). 31. That the Agency provided a mandated correction date of August 2, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one thousand dollars ($1,000.00), against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(b), Florida Statutes (2008). COUNT III 32. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 33. That pursuant to Florida law, criteria for continued residency in a facility holding a standard, limited nursing services, or limited mental health license shall be the same as the criteria for admission, except the administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility. Rule 58A-5.0181(4)(d), Florida Administrative Code. 34. That pursuant to Florida law, the owner or administrator of a facility is responsible for determining the appropriateness of admission of an individual to the facility and for determining the continued appropriateness of residence of an individual in the facility. A determination shall be based upon an assessment of the strengths, needs, and preferences of the resident, the care and services offered or arranged for by the facility in accordance with facility policy, and any limitations in law or rule related to admission criteria or continued residency for the type of license held by the facility under this part. A resident may not be moved from one facility to another without consultation with and agreement from the resident or, if applicable, the resident's representative or designee or the resident's family, guardian, surrogate, or attorney in fact. In the case of a resident who has been placed by the department or the Department of Children and Family Services, the administrator must notify the appropriate contact person in the applicable department. Section 429.26(1), Florida Statutes (2008). 35. That on August 27, 2007, the Agency conducted a complaint survey (CCR# 2007008688) of the Respondent facility. 36. That based upon observation, the review of records, and interview, Respondent, by and through its administrator, failed to monitor one (1) of six (6) sampled residents for continued appropriateness of placement as a resident in the facility, the same being contrary to law. 37. That Petitioner’s representative interviewed Respondent’s resident caregiver on duty upon entrance to the facility on August 27, 2007 at 9:15 a.m., who indicated that resident number two (2) was the only known elopement risk currently residing at the facility. 38. That Petitioner’s representative reviewed Respondent’s records relating to resident number two (2) during the survey and noted as follows: a. The resident was admitted to the facility on June 28, 2007 with diagnoses including Schizophrenia, Depression and Anxiety as reflected on the resident’s current health assessment dated July 17, 2007; b. A assessment by the resident’s physician dated April 12, 2007, faxed to and received by Respondent on June 28, 2007, documented the resident's long history of elopement from previous facilities and the resident’s attempts to walk in traffic. c. That noted in the clinical record is documentation that the resident eloped from the facility on July 2, 2007, was reported as a missing person, and was returned to the facility by the police per law enforcement documentation. 39. That Petitioner’s representative noted during the survey that the Respondent facility does not have secured doors or gates to prevent a resident from eloping, thereby allowing all residents to pass freely. 40. That Petitioner’s representative observed resident number two (2) on August 27, 2007 commencing at 10:18 a.m. and noted as follows: a. At 10:18 a.m., the resident was playing “chicken” with a sport utility vehicle in the busy street in front of the facility; b. At approximately 3:45 p.m. two Ombudsman representatives were directing traffic around resident number two (2) who was lying in the middle of the road in busy traffic. 41. That Petitioner’s representative interviewed the representatives from the Ombudsman who indicated that Respondent’s staff were unaware of the whereabouts of resident number two (2) until it was brought to their attention by another resident yelling for assistance approximately eleven (11) minutes after the resident went out into the street. 42. That Petitioner’s representative interviewed a credible alert and oriented resident during the survey who indicated as follows: a. Resident number two (2) had a history of eloping from the facility to a city park about three (3) miles from the facility; b. Resident number two (2) was usually found and brought back to the facility by law enforcement. 43. That Petitioner’s representative interviewed Respondent’s administrator on August 27, 2007 who indicated as follows: a. That he was unaware of the elopement of resident number two (2) from the facility on July 2, 2007; b. That resident number two (2) was not a known elopement risk. 44. That Respondent’s administrator knew or should have known of the elopement behaviors of resident number two (2). 45. That the Respondent took no action to ensure that the facility and its staff, care, and services, could accommodate the resident’s behaviors and the administrator did not assure the continued appropriateness of placement of the resident in the facility where appropriate services were not provided to meet the resident’s behavioral needs. 46. That the above reflect the failure of Respondent’s administrator to monitor the continued appropriateness of placement of a resident in the facility where resident number two (2) eloped from the facility and took no action to ensure that the exhibited and known behaviors of the resident could be served by Respondent, the same placing the resident at risk. 47. That the Agency determined that this deficient practice was related to the operation and maintenance of the Facility, or to the personal care of Facility residents, and directly threatened the physical or emotional health, safety, or security of the Facility residents. 48. That the Agency cited the Respondent for a Class II violation in accordance with Section 429.19(2)(b), Florida Statutes (2008). 49. That the Agency provided a mandated correction date of August 2, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one thousand dollars ($1,000.00), against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(b), Florida Statutes (2008). COUNT IV 50. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 11 51. That pursuant to Florida law, when food service is provided by the facility, the administrator or a person designated in writing by the administrator shall provide regular meals which meet the nutritional needs of residents, and therapeutic diets as ordered by the resident’s health care provider for resident’s who require special diets. Rule 58A-5.020(1)(c), Florida Administrative Code. 52. That on August 27, 2007, the Agency conducted a complaint survey (CCR# 2007008688) of the Respondent facility. 53. That based upon the observation, the review of records, and interview, Respondent failed to provide regular, nutritious meals to meet the nutritional needs of all the residents, the same being contrary to law. 54. That Petitioner’s representative toured Respondent’s kitchen facilities on August 27, 2007, and noted as follows: a. The kitchen cupboards were nearly empty and the storeroom shelves were sparsely dotted with cans and packages of foodstuffs; b. Menu-item foods on-hand included one (1) jar peanut butter, three (3) cans baked beans, two (2) cans black beans, two (2) cans tomato juice, four (4) jars applesauce, two (2) boxes graham crackers, one (1) box pancake mix, two (2) boxes mashed potatoes, and three (3) boxes spaghetti; c. Three (3) canisters of Tang, a juice drink, were found on storeroom shelves rather than the listed one hundred percent (100%) pure orange juice; d. A plastic bag and large plastic tub was full of stale, hard bread and Danish located on storeroom shelves, the Danish observed with visible mold on them, including some kept in the reach-in fridge; 12 e. The two (2) upright freezers were all but empty, containing two (2) bags corn, one (1) bag french fries, three (3) bags broccoli, three (3) packages bacon, and five (5) cans of juice concentrate; f. The reach-in fridge was minimally stocked with one half (1/2) gallon orange juice, one (1) gallon apple juice, two (2) gallons fruit punch, a few heads of lettuce and cabbage, and some employee foods. 55. That Petitioner’s representative dining observations in the facility dining area on 8/27/07 at 12:00 p.m. found that the bread on the planned facility menu was not served at all to the residents and without a substitution. Interview with the cook during the mealtime revealed that no bread was served because she did not have anything but the stale, old and moldy breadstuffs. She then threw all of it in the trashcan. . 56. That a credible confidential resident interview on 8/27/07 at 12:22 p.m. revealed that the facility does indeed serve the old, hard bread and moldy pastries at times to the residents, but refuses to eat them. S/he also stated that sometimes the facility deviates from the menu and serves a lot of sandwiches for lunch and dinner. 57. That Petitioner’s representative reviewed Respondent’s planned facility menus for the week of August 26, 2007 and noted that several foods needed to prepare and serve the twenty- five (25) residents of the facility were not available in the facility including the lack of: a. Chex Mix for evening snack on August 27, 200; b. Orange Juice, Dry Cereal and Bagel or bread for breakfast on August 28, 2007; c. Cuban Sandwich ingredients, tomatoes, plantains and low fat milk for lunch on August 28, 2007; 13 d. Chicken salad ingredients, bread, tomatoes and pudding mix for supper on August 28, 2007; e. Peanut butter crackers and low fat milk for the evening snack on August 28, 2007; f. Cream of Wheat or grits, pastry and coffee for breakfast on August 29, 2007; g. Shrimp Alfredo ingredients, tossed salad/dressing ingredients and fresh fruit for lunch on August 29, 2007; h. Chicken wings, potato salad ingredients, celery/carrots and pudding mix for supper on August 29, 2007. 58. That Petitioner’s representative interviewed two (2) credible, alert, and oriented residents on August 17, 2007 who indicated as follows: a. One resident indicated that the facility does indeed serve the old, hard bread and moldy pastries at times to the residents, but the resident refuses to eat them, and that sometimes the facility deviates from the menu and serves a lot of sandwiches for lunch and dinner; b. One resident indicated second servings are sometimes given but not always available at mealtimes when there is enough food to do so. 59. That the above reflect the failure of Respondent to ensure that regular meals which meet the nutritional needs of residents are served, placing residents at nutritional risk. 60. That the Agency determined that this deficient practice was related to the operation and maintenance of the Facility, or to the personal care of Facility residents, and directly threatened the physical or emotional health, safety, or security of the Facility residents. 61. That the Agency cited the Respondent for a Class II violation in accordance with Section 429.19(2)(b), Florida Statutes (2008). 62. That the Agency provided a mandated correction date of August 2, 2008. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one thousand dollars ($1,000.00), against Respondent, an assisted living facility in the State of Florida, pursuant to Section 429.19(2)(b), Florida Statutes (2008). COUNT V 63. | The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 64. — That pursuant to Section 429.19(7), Florida Statutes (2008), in addition to any administrative fines imposed, the Agency may assess a survey fee, equal to the lesser of one half of a facility’s biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28(3)(c), Florida Statues (2008), to verify the correction of the violations. | 65. That on or about August 27, 2007, the Agency completed complaint investigations at the Respondent Facility that resulted in a violation that is the subject of the complaint to the Agency. 66. That pursuant to Section 429.19(7), Florida Statutes (2008), such a finding subjects the Respondent to a survey fee equal to the lesser of one half of the Respondent’s biennial license and bed fee or $500.00. 67. That Respondent is therefore subject to a complaint survey fee of five hundred dollars ($500.00), pursuant to Section 429.19(7), Florida Statutes (2008). WHEREFORE, the Agency intends to impose an additional survey fee of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(7), Florida Statutes (2008). 15 Respectfully submitted this [ x day of October, 2008. Fla. Bar. No. 566365 Counsel for Petitioner Agency for Health Care Administration 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1525 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 Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3,MS #3, Tallahassee, FL 32308;Telephone (850) 922-5873. RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT 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 C/E a I HEREBY CERTIFY that a true and correct copy of the 3 on Sopiemnte LA served by U.S. Certified Mail, Return Receipt No. 7008 0500 0001 0421 4583 on Se er ZA, 2008, to Julius V. Reyes, Administrator, Westbury House, 7114 Congress Street, New Port Richey, Florida 34653 and by U.S. Mail to Julius Vincent Reyes, Registered Agent, 2238 Camp Indianhead Road, Land O” Lakes, 34639. Copies furnished to: Julius V. Reyes, Administrator Westbury House 7114 Congress Street New Port Richey, Florida 34653 (US. Certified Mail) Kathleen Varga Facility Evaluator Supervisor 525 Mirror Lake Dr., 4" Fl. St. Petersburg, Florida 33701 (Interoffice) Julius Vincent Reyes Registered Agent 2238 Camp Indianhead Road Land O’ Lakes, 34639. (U.S. Mail) Thomas J. Walsh II, Esq. Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, Florida 33701 (Interoffice) SENDER: COMPLEY ® Complete items 1, <, .ad 3. Also complete - Item 4 if Restricted Delivery is desired. “Print your name and address on the reverse so that we can return the card to you. __@ Attach this card to the back of the mailpiece, . or on the front if space permits. © 1. Article Addressed to: D. ca fs If YES, enter deliveryaddress Julius V. Reyes, Administrator Westbury House 7114 Congress Street New Port Richey, Florida 34653 PS = 3811, February 2004 Domestic Retum Recelpt 402595-02-M-1540

Docket for Case No: 08-005603