Q9 STATE OF FLORIDA 2, ke, AGENCY FOR HEALTH CARE ADMINISTRATION Py Le STATE OF FLORIDA, 4 AGENCY FOR HEALTH CARE a 1 i034 ADMINISTRATION, Petitioner, Vv. Case No. 2008012656 HARBORCHASE OF NORTH COLLIER, INC. d/b/a HARBOR MEMORY CARE OF NORTH COLLIER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter “the Agency”), by and through the undersigned counsel, and files this administrative complaint against the Respondent, HARBORCHASE OF NORTH COLLIER, INC., d/b/a HARBOR MEMORY CARE OF NORTH COLLIER (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2008), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of ELEVEN THOUSAND DOLLARS ($11,000.00) based upon two (2) Class I deficiencies, pursuant to Section 429.19(2)(a), Florida Statutes (2008), and one (1) Class II deficiency, pursuant to Section 429.19(2)(b), Florida Statutes (2008) and to assess a survey fee in the amount of FIVE HUNDRED DOLLARS ($500.00) pursuant to Section 429.19(7), Florida Statutes (2008), for a total sum of ELEVEN THOUSAND FIVE HUNDRED DOLLARS ($11,500.00). JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2008). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42, 120.60 and Chapters 408, Part II, and 429, Part I, Florida Statutes (2008). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable federal and state regulations, statutes and rules _ governing such facilities, Chapters 408, Part II, and 429, Part I, Florida Statutes (2008); Chapter 58A-5, Florida Administrative Code (2008). The Agency may deny, revoke, or suspend any license issued to an assisted living facility, or impose an administrative fine in the manner provided in Chapter 120, Florida Statutes (2008), Sections 408.815 and 429.14, Florida Statutes (2008). 5. The Respondent was issued a license by the Agency (License Number 8546) to operate a seventy-five (75) bed assisted living facility located at 101 Cypress Way East, Naples, Florida 34110, and was at all times material required to comply with the applicable federal and state regulations, statutes and rules governing assisted living facilities. COUNT I The Respondent Failed To Offer Personal Supervision, As Appropriate For Each Resident, In Violation Of Rule 58A-5.0182(1), Florida Administrative Code 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. 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. Facilities shall offer personal supervision, as appropriate for each resident, including the following: (a) Monitor the quantity and quality of resident diets in accordance with Rule S8A- 5.020, Florida Administrative Code. (b) Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the individual. (c) General awareness of the resident’s whereabouts. The resident may travel independently in the community. (d) Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (e) A written record, updated as needed, of any significant changes as defined in Rule 58A-5.0131(33), Florida Administrative Code, any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. Rule 58A-5.0182(1) Florida Administrative Code. 8. On or about September 12, 2008 through September 17, 2008 the Agency conducted a Complaint Investigation (CCR #2008-010616) of the Respondent’s facility. 9. Based on a facility record review, resident record review, and interviews with the Executive Director and two (2) facility staff members, the facility failed to provide personal supervision as appropriate for two (2) of four (4) residents reviewed, Resident number three (3) and Resident number four (4). 10. A review of Resident number three’s (3) record on September 12, 2008 at 5:20 p.m. revealed that Resident number three (3) had, on August 27, 2008 and September 7, 2008, inappropriately sexually touched Resident number four (4). 11. | A review of the facility's adverse incident log revealed that Resident number three (3) had been seen on August 27, 2008 and September 7, 2008 by facility staff having a resident to resident incident. 12. During an interview on September 12, 2008 at 6:00 p.m., the Executive Director acknowledged the incidents. 13. During an interview on September 12, 2008 at 4:15 p.m., Staff number four (4) stated she was a witness on August 27, 2008 to Resident number three (3) having his/her hand on Resident number four’s (4) breast and his/her other hand in Resident number four’s (4) pants, rubbing his/her vagina. This incident occurred in a small television room. Staff number four (4) had been directed to this room by another resident's family member who had witnessed this and reported it to Staff number four (4). 14. Staff number four (4) stated that she took Resident number four (4) to Resident number four’s (4) room and examined the resident for injuries. Staff number four (4) stated that Resident number four (4) had no redness or bruising at the vaginal area. Staff number four (4) documented this incident in Resident number four’s (4) record. 15. During an interview on September 12, 2008 at 4:45 p.m., Staff number five (5) stated that on September 7, 2008 she had witnessed, in a hallway, Resident number three (3) grabbing and massaging the breast of Resident number four (4). Staff number five (5) yelled out. "(Residents name) knock it off." Staff number five (5) said Resident number three (3) threw up his/her hands, laughed, and then left. 16. A review of Resident number four’s (4) record on September 12, 2008 at 5:20 p-m. revealed that Resident number three (3) had, on August 27, 2008 and September 7, 2008, inappropriately sexually touched Resident number four (4). 17. During a review of the facility's adverse incident log, no documentation was found that Resident number four (4) had been involved in any adverse incidents on August 27, 2008 and September 7, 2008. 18. Before the surveyor exit of the facility on September 12, 2008 at 8:00 p.m., the Executive Director of the facility had a staff member one-on-one with Resident number four (4). The Executive Director also contacted the guardian of Resident number three (3) who stated that a companion for Resident number three (3) would be hired and should be in the facility that night. The surveyors confirmed both. 19. | The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. 20. . Pursuant to Section 429.19(2)(a), Florida Statutes (2008), the Agency shall impose an administrative fine for a Class I violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 21. The Agency provided the Respondent with a mandatory correction date of September 24, 2008. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2008). COUNT It The Respondent Failed To Comply With The Resident’s Bill Of Rights In Violation Of Section 429.28(1), Florida Statutes (2008) 22. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 23. Pursuant to Florida law, no resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live in a safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (c) Retain and use his or her own clothes and other personal property in. his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents. (d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9:00 a.m. and 9:00 p.m. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (e) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community. (f) Manage his or her financial affairs unless the resident or, if applicable, the resident's representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in Section 429.27, Florida Statutes (2008). (g) Share a room with his or her spouse if both are residents of the facility. (h) Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather. (i) Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident. (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. (k) At least forty-five (45) days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least forty-five (45) days' notice of a nonemergency relocation or residency termination. Reasons for relocation shall be set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. (1) Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. Each facility shall establish a grievance procedure to facilitate the residents' exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. Section 429.28(1), Florida Statutes (2008). 24. On or about September 12, 2008 through September 17, 2008 the Agency conducted a Complaint Investigation (CCR #2008-010616) of the Respondent’s facility. 25. Based on the facility record review, resident record. review, interviews with the Executive Director and staff, the facility failed to provide a safe living environment, free from neglect for one (1) of four (4) residents reviewed, Resident number four (4). 26. A review of Resident number four’s (4) record on September 12, 2008 at 5:20 p.m. revealed that Resident number three (3) had, on August 27, 2008 and September 7, 2008, inappropriately sexually touched Resident number four (4). 27. During a review of the facility's adverse incident log, no documentation was found that Resident number four (4) had been involved in any adverse incidents on August 27, 2008 or September 7, 2008. 28. During an interview on September 12, 2008 at 6:00 p.m., the Executive Director acknowledged the incidents. 29. During an interview on September 12, 2008 at 4:15 p.m., Staff number four (4) stated she was a witness on August 27, 2008 to Resident number three (3) having a hand on Resident number four’s (4) breast and another hand in Resident number four’s (4) pants, rubbing his/her vagina. This incident had occurred in a small television room. Staff number four (4) had been directed to this room by another resident's family member who had witnessed this and reported it to Staff number four (4). 30. Staff number four (4) stated she took Resident number four (4) to Resident “number four’s (4) room and examined the resident for injuries. Staff number four (4) stated Resident number four (4) had no redness or bruising at the vaginal area. Staff number four (4) documented this incident in Resident number four’s (4) record. 31. During an interview on September 12, 2008 at 4:45 p.m., Staff number five (5) stated that on September 7, 2008 she had witnessed, in a hallway, Resident number three (3) grabbing and massaging the breasts of Resident number four (4). Staff number five (5) yelled out "(Residents name) knock it off." Staff number five (5) said Resident number three (3) threw up his/her hands, laughed, and then left. 32. Before the surveyor exit of the facility on September 12, 2008 at 8:00 p.m., the Executive Director of the facility had a staff member one-on-one with Resident number four (4). The Executive Director also contacted the guardian of Resident number three (3) who stated that a companion for Resident number three (3) would be hired and should be in.the facility that night. The surveyors confirmed both. 33. The Respondent’s deficient practice constituted a Class I violation in that it related to the operation and maintenance of a facility or to the personal care of residents which presented an imminent danger to the residents or guests of the facility or a substantial probability that death or serious physical or emotional harm would result therefrom. 34. Pursuant to Section 429.19(2)(a), Florida Statutes (2008), the Agency shall impose an administrative fine for a Class I violation in an amount not less than five thousand dollars ($5,000.00) and not exceeding ten thousand dollars ($10,000.00) for each violation. An administrative fine may be levied notwithstanding the correction of the violation. 35. The Agency provided the Respondent with a mandatory correction date of September 24, 2008. . WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of FIVE THOUSAND DOLLARS ($5,000.00) pursuant to Section 429.19(2)(a), Florida Statutes (2008). COUNT U1 Respondent Failed To Notify The Health Care Provider And Other Appropriate Party Of A Resident When Significant Change Was Exhibited In A Resident In Violation Of Rule 58A-5.1082(1)(d), Florida Administrative Code 36. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 37. 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. Facilities shall offer personal supervision, as appropriate for each resident, including the following: Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or. moves out. Rule 58A-5.0182(1)(d), Florida Administrative Code. 38. On or about September 12, 2008 through September 17, 2008 the Agency conducted a Complaint Investigation (CCR #2008-010616) of the Respondent’s facility. 39. Based on record review and interview, the facility failed to notify residents’ health care providers when residents exhibited a significant change for two (2) of two (2) residents with a significant change, Resident number three (3) and Resident number four (4). 40. During a telephone interview on September 15, 2008 at 11:00 a.m., with Resident number three’s (3) documented health care provider's office, Doctor number one (1), an employee reviewed the office record and reported that the doctor had not seen the resident since November 7, 2007, and that there was no documentation their office was notified or contacted by the facility regarding any incidences involving Resident number three (3) occurring on August 27, 2008 or September 7, 2008. The doctor had not been informed of Resident number three’s (3) major change in behavior involving inappropriate sexual touching of Resident number four (4) on August 27, 2008 and September 7, 2008. _ ) 41. During a telephone interview on September 15, 2008 at 4:15 p.m., with Resident number three’s (3) documented health care provider, Doctor number two (2) (Resident number three (3) had two (2) doctors on record), an office employee reviewed the office record and found there was no documentation of their office being notified or contacted by the facility regarding any incidences involving Resident number three (3) occurring on August 27, 2008 and September 7, 2008. Furthermore, according to Resident number three’s (3) record, the resident has not been seen by the doctor since 2007, but the office employee confirmed that Resident number three (3) had an appointment scheduled for September 16, 2008 for aggressive sexual behavior. The doctor had not been informed of Resident number three’s (3) major change in behavior involving inappropriate sexual touching on Resident number four (4) on August 27, 2008 and September 7, 2008. 42. During a telephone interview on September 16, 2008 at 11:30 am., Resident number three’s (3) guardian stated that the facility had notified the guardian on August 31, 2008 of an incident on August 27, 2008 but couldn't really remember when the facility called about the September 7, 2008 incident. 43. During a telephone interview on September 15, 2008 at 3:45 p.m. with Resident number four’s (4) documented health care provider, Doctor number three (3), an office employee reviewed the office record and found no notification or contact with the facility regarding any incidences involving Resident number four (4) occurring on August 27, 2008 and September 7, 2008, that Resident number four (4) was last seen on June 25, 2008 and the office had been contacted by the facility on September 10, 2008 regarding changes in Resident number four’s (4) eating/dietary habits. The doctor had not been informed of Resident number four’s (4) significant event when the resident was inappropriately sexually touched by Resident number three (3) on August 27, 2008 and September 7, 2008. 44, During a telephone interview on September 17, 2008 at 11:25 am. Resident number four’s (4) responsible party stated that the facility contacted this responsible party of the August 27, 2008 incident; however, this responsible party was not aware of the incident on September 7, 2008. 45. The Respondent’s deficient practice constituted a Class II violation in that it related to the operation and maintenance of a facility or to the personal care of residents which the Agency determines directly threaten the physical or emotional health, safety, or security of the facility residents, other than a Class I violation. Section 429.19(2)(b), Florida Statutes (2008). 46. | The Agency shall impose an administrative fine for a cited Class II violation in an amount not less than one thousand dollars ($1,000.00) and not exceeding five thousand dollars ($5,000.00) for each violation as set forth in Section 429.19(2)(b), Florida Statutes (2008). A fine shall be levied notwithstanding the correction of the violation. 47. The Respondent was given a mandatory correction date of October 17, 2008. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of ONE THOUSAND DOLLARS ($1,000.00) pursuant to Section 429.19(2)(b), Florida Statutes (2008). COUNT IV Assessment of Survey Fee 48. | The Agency re-alleges and incorporates paragraphs one (1) through five (5), and the allegations in Count J, Count II, and Count III as if fully set forth herein. 49. The Agency conducted a Complaint Investigation (CCR #2008-010616) on September 12, 2008 through September 17, 2008. 50. Asa result of the Agency’s Complaint Investigation (CCR #2008-010616), the Respondent was cited for two (2) Class I deficiencies and one (1) Class II deficiency. 51. Pursuant to Section 429.19(7), Florida Statutes (2008), the Agency is authorized to, in addition to any administrative fines, assess a survey fee equal to the lesser of one-half of the facility’s biennial license and bed fee, or five hundred dollars ($500.00), to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or for monitoring visits conducted under 429.28(3)(c), Florida Statutes (2008), to verify the correction of the violations. 52. In this case, the Agency is authorized to seek a survey fee in the amount of FIVE HUNDRED DOLLARS ($500.00). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration intends to assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00), pursuant to Section 429.19(7), Florida Statutes (2008). | CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: 1. Enter findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of ELEVEN THOUSAND DOLLARS ($11,000.00). 3. Assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00). 4. Order any other relief that this Court deems just and appropriate. Respectfully submitted this gg@4@,__ day of JamrnAttyn , 2009. “an Biicy Maoh Assistant General Counsel Florida Bar No. 0355712 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 338-3203 NOTICE RESPONDENT IS NOTIFIED THAT IT/HE/SHE HAS A RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. THE RESPONDENT IS FURTHER NOTIFIED THAT IT/HE/SHE HAS THE RIGHT TO RETAIN AND BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED ELECTION OF RIGHTS. ALL REQUESTS FOR HEARING SHALL BE MADE AND DELIVERED TO THE ATTENTION OF: THE AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, BLDG #3, MS #3, TALLAHASSEE, FLORIDA 32308; TELEPHONE (850) 922-5873. THE RESPONDENT IS FURTHER NOTIFIED THAT IF A REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF THE RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form has been served to: Colin Marshall, Administrator, Harborchase of North Collier, Inc. d/b/a Harbor Memory Care of North Collier, 101 Cypress Way East, Naples, Florida 34110, by U.S. Certified Mail, Return Receipt No. 7008 1140 0003 8886 3445, and F & L Corporation, Registered Agent for Harborchase of North Collier, Inc. d/b/a Harbor Memory Care of North Collier, One Independent Drive, Suite 1300, Jacksonville, Florida 32202, by U.S. Certified Mail, Retum Receipt No. 7008 1140 0003 8886 3483, on this gs, of Poctiaitlye __. 2009. Lion Paley J ee Assistant General Counsel Florida Bar No. 0355712 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901. Telephone: (239) 338-3203 15 Copies furnished to: Colin Marshall, Administrator Harborchase of North Collier, Inc. d/b/a Harbor Memory Care of North Collier 101 Cypress Way East Naples, Florida 34110 (US. Certified Mail) Mary Daley Jacobs, Assistant General Counsel Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (Interoffice Mail) F & L Corporation, Registered Agent for Harborchase of North Collier, Inc. d/b/a/ Harbor Memory Care of North Collier One Independent Drive, Suite 1300 Jacksonville, Florida 32202 Harold Williams Field Office Manager Agency for Health Care Administration 2295 Victoria Avenue, Room 340A Fort Myers, Florida 33901 (US. Certified Mail) (Interoffice Mail)

Docket for Case No: 09-001023