Certified Mail Receipt (7008 1300 0000 6174 2234) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, - Petitioner, vs. ; FRAES NO, 2009009928 KIPLING MANOR RETIREMENT 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 Kipling Street, Pensacola, Florida 32514; Escambia County, Florida, pursuant to §§120.569 and 120.57, Fla. Stat. (2009), and alleges as follows: NATURE OF THE ACTION Pursuant to § 58A-5.003(5), Fla. Admin. Code (2009) and §429.19, Fla, Stat. (2009), this is an action to impose an administrative fine against an Assisted Living Facility in the amount of six thousand dollars ($6,000.00); one thousand dollars ($1,000.00) as to Count I and five thousand dollars ($5,000.00) as to Count IT. Filed January 5, 2010 9:51 AM Division of Administrative Hearings. JURISIDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to §§120.569 and 120.57, Fla. Stat. (2009). 2, The agency has jurisdiction of the Respondent pursuant to §§20.42 and 120.60, and Chapters 429, Part I, and 408, Part II, Fla. Stat. (2009). 3. Venue lies pursuant to Rule.28-106.207 Fla. Admin. Code. PARTIES - 4. The Agency is the licensing and regulatory authority that oversees assisted care communities in Florida and enforces the applicable federal and state regulations, statutes and rules that govern such facilities. Chapters 429, Part I, and 408, Part II, Fla. Stat. (2009). 5. The Respondent is an Assisted Living Facility, License Number AL7285, located at 7901 Kipling Street, Pensacola, Florida 32514; Escambia County, Florida. COUNT I The Respondent failed to maintain accurate Medication Observation Records (MORs) for residents of the Facility in violation of §58A-5.0185(5)(b), Fla. Admin Code (2009). 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Despite the Agency citing the Facility for these deficiencies, the Facility repeatedly failed to maintain proper MORs for all of its patients. 8. §58A-5.0185(5)(b), Fla. Admin Code (2009), states: “The facility shall maintain a daily medication observation record (MOR) for each resident who teceives assistance with self- administration of medications or medication administration. A MOR must include the name of the resident and any known allergies the resident may have; the name of the resident’s health care provider, the health cate provider’s telephone number; the name, strength, and directions for use of each medication; and a chart for recording each time the medication is taken, any missed dosages, refusals to take medication as presctibed, or medication errors. The MOR must be immediately updated each time the medication is offered or administered.” 9. Pursuant to §58A-5.003(1), Fla. Admin. Code (2009) and §429.34, Fla. Stat. (2009), Agency surveyors performed an unannounced survey of the Facility on or about September 4, 2008. 10. Based on a record review and staff interviews, it was determined that the Facility failed to maintain an accurate medication observation record (MOR) for one (1) (Resident #12) of twenty- two (22) sampled residents. Resident #12, eventually had to be admitted to a crisis stabilization unit for care and services. 11. The “chart notes” revealed that Resident #12 was admitted on August 29, 2008 at 1:00 P.M. The Department of Elder Affairs/Assisted Living Facility, Form 1823, Health Assessment for Resident #12 dated August 27, 2008 indicated a diagnosis of schizoaffective disorder bipolar type, organic affective disorder with confusion and psychosis. Medications ordered on the health assessment included: Risperdal (schizophrenia, bipolar disorder) three (3) milligrams twice daily, Cogentin (anti-Parkinson’s disease) one (1) milligram twice daily as needed, Haldol (schizophrenia) hours as needed, Klonopin (seizures, panic disorder) 0.5 milligram twice daily. In addition, Haldol and Ativan had lines drawn through them and a notation “D /C’d 8/29/08.” 12. A review of the MOR indicated the following: a. Risperdal, three (3) milligrams on August 30, 2008 at 8:00 A.M. not given as evidenced by initials circled for that time and day. b. Risperdal, three (3) milligrams only given once on September 1, 2008 with no time documented. This medication should have been given twice per the doctot’s instructions. c. Cogentin, one (1) milligram on August 30, 2008 at 8:00 A.M. not given as evidenced by initials circled for that time and day. d. Haldol, five (5) milligrams given on September 1, 2008 at 8:00 A.M. and September 2, 2009 with no documented reason or response. This was after the discontinuation date of August 29, 2008. e. Ranitidine, fifty (50) milligrams, given on September 1, 2008 once with no time documented. There was no physician ordes for this medication. f. Klonopin was not administered as it was not listed on the MOR as a part of the Resident’s regimen, 13. On September 2, 2008 at around 10:00 A.M., the Resident exhibited erratic behavior, saw sparks coming out of the light sockets, room was in disarray, wandered in and out of other Resident’s tooms and went through their belongings.. The Resident had to be admitted to a crisis stabilization unit for care and treatment. 14. This was classified at a Class I deficiency. 15. On or about October 15, 2008, Agency surveyors conducted a follow-up survey of the Facility. 16. Upon a review of records and interviews with staff members, it was again determined that the Facility failed to maintain accurate Medication Observation Records (MORs). However, on this occasion, it failed to maintain accurate MORs for at least five (5) (Residents #s 1, 2, 3, 6, and 7) of nine (9) sampled residents. Furthermore, the Facility failed to accurately document medication dosage and current physician orders on residents’ MORs and failed to ensure that the label on the medication bottle was consistent with the medication ordets on the residents, MOR. The findings are as follows: a. A review of the clinical record for Resident #3 revealed a current physician order for Choline and Mag Trisalicylate 750 milligrams orally twice daily. The order was written on September 17, 2008. The Resident’s MOR revealed two entries for the same medication, one ordered on May 21, 2008 with a dosage of 500 milligrams twice daily and the second entry for the currently ordered dosage. The current order on the MOR for the Choline Mag Trisalicylate 750 milligrams was noted to be a duplicate order and was not being used to document the Resident’s administration of the medication. The daily administration of the medication was being documented as a 500 milligram dosage instead. A check of the actual pill card for this medication for Resident #3 with the facility’s licensed nurse on October 15, 2008 at 1:35 P.M. tevealed the Resident was being administered the currently ordered dose of 750 milligrams despite it being documented as a 500 milligram dose. The facility nutse confirmed the etror in documentation of the medication dosage. b. A review of the medications fot Resident #6 revealed a physician’s order dated July 23, 2008 for Ativan, 1 milligram to be given twice daily as needed for agitation or insomnia. However, the MOR inaccurately reflected the current physician’s order as Ativan, 1 milligram to be given only once daily if needed for agitation or insomnia. This was confitmed via interview with the nurse on October 15, 2008 at approximately 1:20 P.M. c. A review of the medications for Resident #2 found he/she had been receiving Novolog 6 units subcutaneously twice daily and Lantus Insulin 5 units subcutaneously at bedtime per the physician’s order dated July 19, 2008. An interview with the Nurse at approximately 1:45 P.M. on October 15, 2008 found the doctor had discontinued the accu checks on July 30, 2008 as the Resident had been refusing them and as well as refusing all medication. However, continued review of the chart found the Novolog and the Lantus had not been discontinued by a physician’s order but that the Insulins had been discontinued -by-the nursing staff. According to the Nurse, the last time the Resident had received the medications was on July 13, 2008 and there had been no accu checks performed (per discontinuation orders on July 30, 2008) to know if there were any negative effects. d. A review of the medications for Resident #7 found a physician’s order dated for September 11, 2008 for Aricept 5 milligrams one tab taken at bedtime with the MOR reflecting the same. However, a review of the label on the bottle of medications found it inaccurately reflected the order as it read Aricept 5 milligrams, one tablet to be given once daily in the mornings. e. A review of the MOR on October 14, 2009, revealed that Resident #1 was being given Priolosec 20 milligram, one tablet daily before breakfast. A teview of the clinical record for Resident #1 revealed no physician order for this medication. An interview with the facility nurse on October 14, 2008 at approximately 1:00P.M., confirmed that the Resident record failed to contain a physician’s order for Prilosec. f. A review of the MOR for Resident #1 also revealed that Metoclopran 5 milligrams, one tablet thtee times daily before meals was not documented as being taken on October 6, 2008 for the evening dose; and for Baclofen 20 milligrams one tablet four times daily for the 8:00 A.M. dose. This was evidenced in both cases by a blank space on the MOR and no explanation on the back side of the MOR for the lack of an entry, 17, The surveyors classified these violations as Class III deficiencies and gave a correction date of November 15, 2008. 18, On or about May 27, 2009, Agency surveyors conducted a second follow-up survey/revisit of the Facility. This visit resulted in sanctions being sought by the Agency for the continued deficiencies in the Facility’s MOR and record keeping practices. 19. Based on observations and record reviews, Agency sutveyors determined that the Facility failed to document assistance with giving medications to one (1) of nine (9) residents observed in the Medication Pass Observation (Resident #8 of the sample). The findings are as follows: a, During the Medication Pass Observation at approximately 8:30 A.M. on May 27, 2009, the medication tech was observed giving one Datvocet N-100 tablet to. Resident #8. A review of the MOR for Resident #8 at approximate 11:30 A.M. on the same date reveals that Darvocet N-100 is not itemized on the MOR, and there was no entry made on the MOR teflecting that the Facility had provided assistance with this dose of medication to Resident #8. It was later determined that there was no valid order for Resident #8 for Darvocet N-100. 20. The Facility’s practice and procedures with regard to MORs and proper documentation remains out of line with Florida. The repeated deficiencies necessitate the imposition of a fine in this matter. COUNT I The facility failed to serve therapeutic diets as ordered by the physician for 4 of 11 sampled residents in violation in §58A-5.020(1)(c), Fla. Admin, Code (2009), 21. The Agency re-alleges and incorporates by teference paragraphs one (1) through five (5). 22. §58A-5,020(1)(c) states in pertinent part: “(1) GENERAL RESPONSIBILITIES. When food setvice is provided by the facility, the administrator ot a person designated in writing by the administrator shall: (c) Provide regular meals which meet the nuttitional needs of residents, and therapeutic diets as ordered by the resident’s health care provider for resident’s who require special diets, Fla, Admin. Code (2009).” 23. Pursuant to §58A-5.003(1), Fla. Admin. Code (2009) and §429.34, Fla. Stat. (2009), Agency surveyors performed an unannounced survey of the Facility on or about September 4, 2008. 24. Based on observations and record reviews, the surveyors determined that the Facility failed to follow the menu and failed to serve therapeutic diets as ordered by the physicians for 8 (#’s 3, 9, 10, 16, 18, 19, 21, and 22) of 22 sampled residents. The findings are as follows. a. A review of the cutrent menu indicated that only regular diets are setved with no concentrated sweets and no added salt. Interviews with the Administrator, Assistant Administrator, and Director of Nursing on September 4, 2008 at approximately 1:40 P.M. confirmed that no diets other than the regular diet ate served. A tecord review of the Health Assessment (HA) for Resident #3 indicated a diagnosis of chest pain and shortness of breath with.an ordet for Low Fat and Low Cholesterol diet. A record review of the HA for Resident #9 indicated a diagnosis of diabetes mellitus (DM) with an order for a diabetic diet. A record review of the HA for Resident #16 indicated a diagnosis of DM with an order for a diabetic diet. A record review of the HA for Resident #18 indicated a diagnosis of DM with an order for an 1800 calorie diet. A record review of the HA for Resident #19 indicated a diagnosis of DM with an order for a diabetic diet. k, A record review of the HA for Resident #21 indicated a diagnosis of DM with an order for an 1800 calorie diet. A record review of the HA for Resident #22 indicated a diagnosis of DM with an otder for an 1800 calorie diet. , There was no evidence that the Facility had menus for Low Fat and Low Cholesterol, Diabetic, or 1800 Calorie diets and there was no evidence the residents with these diet ordets received a therapeutic diet in accordance with these restrictions. Observations of the Special Care Unit on September 3, 2008 and September 4, 2008 at approximately 8:00 A.M. revealed Resident ##10 asking for coffee during breakfast. During an interview with the Administrator, Assistant Administrator, and Director of Nursing, it was learned that coffee is on the menu, however, residents residing in the Special Care Unit are not allowed coffee due to the temperature of the beverage and the possibility of injury. These were classified as Class II deficiencies. 25. On or about October 15, 2008, Agency surveyors conducted a follow-up/revisit of the Facility. The surveyors learned that nothing had been done to correct the above-listed deficiencies as the findings of the survey were identical to those of the September 4, 2008 survey. 26. On or about May 27, 2009, Agency sutveyors conducted a second follow-up/revisit of the Facility. This re-visit resulted in the current Administrative Complaint and in the Agency seeking sanctions against the Facility. Based on observations, record reviews, and intetviews, it was detérmined that the Facility again failed to serve therapeutic diets as ordered by the physician for four (4) of eleven (11) sampled residents (#’s 1, 5, 7, and 9). The findings ate as follows: a. A review of the current menu provided to the surveyors on May 26, 2009 revealed the menu had been approved by a registered dietitian on September 26, 2008 for regular diets only. During an interview with the Facility’s Administrator on May 26, 2009 at approximately 2:45 P.M., the Administrator stated that the facility served regular diets only. He/she further stated there were no therapeutic diets and the resident’s “1823” (Health Assessment Form) would reflect this practice. A record review on May 26, 2009 at approximately 1:00 P.M., Agency surveyors uncovered the following: The most recent Health Assessment Form for Resident #1, dated January 29, 2009 revealed a diagnosis of hyperglycemia and a physcian’s order for a Diabetic Diet. The Resident also had physician orders for accu checks to be done four times daily and orders for Lantus Insulin 40 units every morning, Humalog Insulin, 4 units twice daily and sliding scale Humalog Insulin for coverage of blood sugars between 151 and 400 mg/dl. A review of the Resident’s MOR for May 2009 revealed that the Resident required administration of the sliding scale insulin nine times in March of 2009, four times in April 2009, and seven times between May 1, 2009 and May 27, 2009. The Resident’s accu check on May 20, 2009 at approximately 8:00 A.M. recorded a blood sugar of 319 mg/dl. During an interview on May 26, 2009 at approximately 2:45 P.M., the Administrator stated that the Diabetic diet order had to be a mistake because the staff had previously contacted the Resident’s physicians and had the physicians change all therapeutic diet orders to regular diet ordets. Furthet teview of the Resident’s clinical record on May 27, 2009 revealed another Health Assessment form dated May 27, 2009 signed by a different physician with a diet order for a Regular No Concentrated Sweets diet, however, Facility staff were unable to provided the surveyor with a menu which would guide staff on the difference between a regular and a no concentrated sweets diet. On May 28, 2009 at approximately 1:20 P.M., and interview was conducted with the nurse of the physician who made the diet change on May 27, 2009. The nurse stated that the Resident’s physician was of the understanding that Resident #1 would be receiving a diet that would comply with the Diabetic teaching the Resident pteviously received from the Outpatient Diabetes Education Center, She also stated that she was certain the physician did not intend for the Resident to be on a “regular” diet and that the physician was not awate that the Resident’s blood sugars were not being monitored four times daily as ordered. A record review of the Health Assessments for Resident #9 revealed assessments dated June 19, 2008 and May 30, 2007. The June 19, 2008 assessment notes the Resident to be a Type 2 Diabetic and the May 30, 2007 assessment notes the Resident to be a Non-Insulin Dependent Diabetic. Both assessments require her to be on a Diabetic Diet. On May 7, 2009 at approximately 1:00 P.M., the Resident was observed to eat the same meal as the other residents; barbecue chicken, baked beans, candied yams, roll, sweet tea, and red velvet cake, This Resident lost eleven (11) pounds from January of 2009 to May 2009. Resident #7 had a health assessment dated as recently at May 13, 2009 assessing him as requiring a Mechanical Soft Diet with Chopped Meats. Documentation on a Health Assessment as far back as October 18, 2008 noted his need fot this type of diet. On May 28, 2009 at approximately 9:30 A.M., one of the Facility’s cooks was interviewed. He/she stated at that time “‘we used to chop up his food but we don’t anymore.” In an interview, the Director of Nurses stated that she “thought they were still chopping his meat.” On May 28, 2009, Agency surveyors noted that the Resident was served whole meatballs. 27, The Facility’s practice and procedures with regard to MORs and proper documentation remains out of line with Florida. The repeated deficiencies necessitate the imposition of a fine in this matter. WHEREFORE, the Agency requests the following relief: 1. Enter factual and legal findings as set forth in the allegations on all counts. 2. Impose an administrative fine in the amount of SIX THOUSAND DOLLARS ($6,000.00); one thousand dollars ($1,000.00) as to Count I and five thousand dollars ($5,000.00) as to Count IT. 3, Grant such other relief as the court deems is just and proper. Respectfully s is q day of November, 2009. Shaddrick A. Haston, Assistant Genera Florida Bar I.D. No.: 0031067 Dwight O. Slater, Senior Attorney Florida Bat 1.D. No.: 0030607 Agency for Health Care Administration 2727 Mahan Dr., M.S. #3 Tallahassee, Florida 32308 Phone: (850) 922-5873 Fax: — (850) 413-9313 Respondent is notified that it has a tight 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: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Flotida, | 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 cottect copy of the foregoing has been served by US. Certified Mail, Return Receipt Requested on November ba) 2009, to Mr. Belie B. Williams, a Administrator, 7901 Kipling Street, Pensacola, Florida 32514. Teaco y Fl Shaddrick A. Haston, Esq. Dwight O, Slater, Esq. Shaddrick A. Haston Assistant General Counsel Agency for Health Care Administration Mt. Belie B, Williams, Administrator Kipling Manor Retitement Centex 7901 Kipling Street Pensacola, Florida 32514 Office of the General Counsel (US. Certified Mail) 2727 Mahan Drive, MS #3 : Tallahassee, Florida 32308 (Interoffice) Barbara Alford Dwight O. Slater Field Office Manager Assistant General Counsel Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Dr. MS # 46 Office of the General Counsel Tallahassee, Florida 32308 2727 Mahan Drive, MS #3 (Intero ffice) Tallahassee, Florida 32308 (Interoffice) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: KIPLING MANOR RETIREMENT CENTER CASE NO: 2009009928 EL. oO I ‘This Election of Rights form is attached to a proposed action by the Agency for Health Cate Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late, Fine or Administrative Complaint, If your Election of Rights with your selected option is not teceived by AHCA within twenty-one (21) days from the date you received this notice of proposed action by AHCA, you will have given up yout right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney of your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine ot Fee, or Administrative Complaint and I waive my tight to object and to have a heating. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) _____ I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (putsuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of ‘Administrative Hearings. PLEASE NOTE; Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal heating. You also must file a written petition in ordet to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1, ‘Your name, address, and telephone number, and the name, address, and telephone number, of your representative ot lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120,573, Florida Statutes, may be available in this matter if the Agency agtees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name _ Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Lhereby certify that I am duly authorized to_ submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. 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Docket for Case No: 10-000007