@) Q STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION ’ STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Y. AHCA No.: 2012005206 : License No.: 7109 File No. 11911439 BLC ATRIUM-JACKSONVILLE, LLC d/b/a License Type: Assisted Living Facility ATRIUM AT REGENCY (THE), . , Respondent. ee | ) ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, BLC Atrium-Jacksonville, LLC dlb/a Atrium at Regency (The), (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to impose an administrative fine in the amount of $1,000.00 based upon one Class II violation, PARTIES A The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities, Ch. 408, Part II, Ch. 429, Part J, Fla, Stat. (2011); Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules. §§ 408.813, 408,815, 429.14, 429.19, Fla. Stat. (2011). In addition Filed June 26, 2012 4:01 PM Division of Administrative Hearings @) Y to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency inay assess a survey fee against an assisted living facility. §429.19(7), Fla. Stat. (2011). 2. . The Respondent was issued a license (No, 7109) by the Agency to operate an assisted living facility located at 9960 Atrium Way, Jacksonville, Florida 32225 (“the Facility”), . and was at all times material required to comply with the applicable statutes and rules governing assisted living facilities. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24-hour nursing supervision, Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, assisted living facilities provide supervision, assistance with personal care and supportive services, as well as assistance with, or administration of, medications to residents who require such services. COUNTI The Respondent Failed to Obtain Level 2 Criminal Background Screenings For Staff Personnel 3, Under Florida law, no resident of an assisted living 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. §429.28(1)(a), Fla. Stat. (2011). 4. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809, §429.174, Fla. Stat, (2011). QO 6) 5. Under Florida law, level 2 background screening pursuant to Chapter 435 must be © conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435; (a) The licensee, if an individual. (b) The administrator or a similacly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similatly titled individual who is responsible for the’ financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435,04, For each controlling interest who has been convicted of any such offense, the licensee shal] submit to the Agency a description and explanation of the conviction at the time of license application, (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with’ a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor sereoning may be retained by the conttactor’s employer or the licensee. §408.809(1), Fla. Stat. (2011). 6. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under Chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such iescreening, the Agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If the fingerprints of such a person are not retained by the Department of Law Enforcement under Section 943.05(2)(g), the person must file a complete set of fingerprints with e) @) the Agency and the Agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check, The fingerprints may be retained by the Department of Law Enforcement under Section 943.05(2)(g). The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Proof of compliance with * level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the Agency, the Department of Health, the Agency for Persons with Disabilities, the Department of Children and Family Services, or the Department of - Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under Chapter 651 satisfies the requirements of this section if the person subject to screening has not been unemployed for more than 90 days and such proof is accompanied, under penalty of perjury, by an affidavit of compliance with the provisions of Chapter 435 and this section using forms provided by the Agency. §408.809(2), Fla. Stat. (2011). 7, Under Florida Jaw, in addition to the offenses listed in Section 435,04, all persons tequired to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses listed in Section 408.809(4). §408.809(4), Fla, Stat. (2011). 8. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that d Oo . indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification, The only basis for contesting the disqualification is proof of mistaken identity. §435.06(1), Fla, Stat. (2011). 9, Under Florida law, an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hite, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. If an employer becames aware that an employee has been arrested for a disqualifying offense, the , employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position - for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07, §435.06(2), Fla. Stat. (2011). 10. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. §435.06(3), Fla. Stat. (2011). QO 9 Level] 2 Background Screening Requirements Il. Florida has one of the largest vulnerable populations in the country, with over 25% of the state’s population over the age of 65, as well as children and disabled adults, These — vulnerable populations require special care as they ate at an increased risk of abuse. In 1995, the Florida Legislature created standard procedures for the screening of prospective employees ‘where the Legislature had determined it necessary to conduct criminal history background uo checks to protect vulnerable persons. Chapter 435, Florida Statutes, outlines the background soreening standatds for Level 1 employment screening and Level 2 employment screening, . 12, In 2010, the Florida Legislature substantially rewrote the requirements and procedures for criminal background screening of the persons and business that deal primarily with vulnerable populations. The 2010 changes provided that “vulnerable persons” include minors and adults whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. Among other things, the new requirements: (a) mandated that no person be allowed to begin work until the background screening was compléted, (b) increased the level of background screening from Level 1 to Level 2, (c) expanded the number of disqualifying offenses for employees, and (d) prohibited exemptions from disqualification for employees until three after the completion of alt sentencing sanctions.! 13. The primary purpose served by criminal background screening is the protection of the safety and well-being of the facility residents, As set forth above, assisted living facility residents oftentimes consist of disabled adults and fiail elders with mental and/or physical ' ‘The statements contained in this paragraph and the preceding paragraph is based upon statements and findings set forth within the Florida House of Representatives Staff Analysis for HB 7069. House Bill 7069 was enacted into law by the Florida Legislature effective July 1, 2010. Ch. 2010-114, Laws of Fla, 6 4) | 4) disabilities, who are at substantial risk of physical, mental and emotional abuse, medical neglect and financial exploitation. By enacting these provisions, the Florida Legislature has determined . that the risk to this vulnerable population is of such significance that prospective employment be delayed until the risk is addressed through the background screening process. As a secondary purpose, background soreening bolsters the publie’s trust in assisted living facilities and lessens -‘ the risk of potentially business ending civil liability for a facility. The commission of a crime or tort upon a resident not only has a direct impact upon the resident victim, but may also have an impact upon the fellow residents within the facility as well as the family members of the resident ; victim. . 14. On or about January 26, 2012, the Agency conducted a survey of the Respondent. 15. Based on record review and staff interview, the facility failed to provide documentation of level 2 background screenings for 3 of 5 sampled employees (Employees #2, #3, and #4), These employees were employed in positions that required level 2 background screening, 16. Personnel record review revealed Employee #2. did not have evidence ofa level 2 background screening available to review in Employee #2's personnel file. This employee was employed in a position that required level 2 back ground screening, 17. Personnel record review revealed Employee #3 did not have evidence of a level 2 background screening available to review in Employee #3's persomnel file. This employee was employed in a position that required level 2 back ground screening. 18. Personnel record review revealed Employee #4 did not have evidence of a level 2 background screening available to review in Employee #/4's personnel file. This employee was employed in a position that required level 2 back ground screening. 19. An interview with the Administrator on January 26, 2012, at 2:35 PM confirmed 7 e) 6) that there was no available documentation of level 2 background screenings for Employees #2, #3, or #4 at the time of the survey, These employees were employed in positions that required level 2 back ground screening. 20. ‘The failure to ensure residents receive care.and services from petsons who have not committed offenses that preclude them from employment directly placed residents at vi sk for . . exposure to persons whom the Florida Legislature has deemed inappropriate to provide care or services, 21 . The Respondent’s actions or inactions constituted a class II violation. 22, — Class “Ii” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients, which the Agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. §408,813(2)(a), Fla. Stat, (2011). 23, Under Florida law, the Agency shall impose an administrative fine for a cited class I violation in an amount not less than $1,090 and not exceeding $5,000 for each violation. $429.19(2)(b), Fla. Stat, (2011). A fine shall be levied notwithstanding the correction of the violation. §408,813(2)(a), Fla. Stat. (2011). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $1,000.00 against the Respondent. , CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to enter a final order granting the following relief: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose the relief against the Respondent as set forth above. QO Y Respectfully submitted on this. 30 ia of May 2012, Bradford C. Herter Assistant General Counsel Florida Bar No. 69060 ’ Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, Florida 32308 Telephone: (850) 412-3639 Facsimile: (850) 921-0158 NOTICE The Respondent is notified of the right to request an administrative hearing pursuant to Sections 120,569 and 120,57, Florida Statutes. If the Respondent wants to hire an attorney, it/fhe/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. ; The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. QO | Q ) CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of this Administrative Complaint and Election of Rights were served to: Registered Agent, C T Corporation System, 1200 South Pine Island Road, Plantation, Florida 33324, by U.S. Certified Mail Return Receipt Requested (7008 3230 0003 5048 1987); on this £2 day of May, 2012. MM MA Bradford C. Herter Assistant General Counsel Florida Bar No. 69060 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 3 Tallahassee, Florida Telephone: (850) 412-3639 Facsimile: (850) 921-0158 Copies furnished to: Shaddrick Haston : Rob Dickson Consultant Supervisor Field Office Managor Assisted Living Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) ‘ Q QO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: BLC Atrium-Jacksonville, LLC d/b/a ACHA No. 2012005206 Atrium at Regency (The) . ELECTION OF RIGHTS This Election of Rights form is attached to a proposed agency action by the Agency for Health Care 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 may be _ returned by mail or by facsimile transmission, but.m e filed with the Agency Clerk within al days by 5:00 p.m, Eastern Time, of the day that you receive the attached proposed agency action. If your Election of Rights with your selected option is not received by AHCA within 21 days of the day that you received this proposed agency action, you will have waived your right to contest the proposed agency action and a Final Order will be issued, (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 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 Telephone: 850-412-3630 Facsimile: 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 Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint and I waive my right to object and to have a hearing, | 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) __- T admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant 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, Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. Il O 9g PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. Jt. must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed agency 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. The name, address, telephone number, and facsimile number (if any) of the Respondent, 2. The name, address, telephone number and facsimile number of the attorney or qualified representative of the Respondent (if any) upon whom service of pleadings and other papers shall . be made. 3, A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. 4. A statement of whien the respondent received notice of the administrative complaint. 5. A statement including the file number to the administrative complaint. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, ; Licensee Name: Contact Person: Title: Address: Number and Street City . Zip Code . Telephone No. _. Fax No. E-Mail (optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Printed Name: Title: ; USPS.com® « Track & Contry English Cuntomor Service #AUSPSCOM Qulek Tools Track & Confirm ORTEMARUMATER «PRINT. DETAILS. YOUR LABEL NUMBER ' | 70083230000350401987 H Check on Anotheritem ‘What's your label (or recelpt) number? 700832300003604B 1983 LEGAL Pitvacy Polley» ‘Terma of Use > FOIA) No FEAR Act EEO Pata > Copyrlght® 2012 USPS, All Rights Rosorved. USPS Aoblle Ship a Package Send Malt SERVICE STATUS OF YOUR ITEM OelWorad Notice Lett (No Authorized Recipient Available) Artivel at Unit Depart USPS Sort Factlity Processed though USPS Sort Facllity Find ON USPS.COM Govenmont Servicer » Buy. Stans & Shop > Print a Label with Postaga> Customer Service » ‘Sila Indox > Manage Your Mall DATER TIME June 04, 2042, 10.04 am June 02, 2042, 13am shine 02, 2012, 9:05 am dune 04, 2012 June dt, 2012, 6:22am ON ABQUT.USPB.COM About USPS Home > Newsroaniy Mal] Sarvieg Updatos > Fotrne & Publications » Careers > https://tools.usps.com/go/TrackConfirmAction.action Page 1 of 1 O Register # 8ign in Search USPS.com or Treck Packages Shop Business Sotutions. Location FEATURES: |ront Cover an™ | LAUDERDALE, FL 39318: | FORT LAUDERDALE, FL 99924 . FORT LAUDERDALE, FL 99317 FORT LAUDERDALE, Ft, 93310 FORT. LAUDERDALE, FL, 39310 OTHER USPS SITES ‘Business Customar Galoway > Postal Inspockors > Inspector Gonaral » Postal Explorar 06/06/2012 COMPLETE THIS SECTION ON DELIVERY : SENDER: COMPLETE THIS SECTION io Gornplee inte i AG oa compete ; pearcaaries tem 4 If Restricted Delivery Is deshed, BGCUEIRET AR w Print your name and address on the reverse i mm __ so that we oan return the card to you. @) @ Attaghthis'Card to the back of the mallpisce, or on the front If space parmite, 1. Aitlela Addressed to: ©. Date of Delivery esgAiferent from item 12 O Yes it ES; enter dalivery address below: DNo pH 3, Service Type a Ai Cortiied Mal [51 Express Malt Cl Registared ‘BrRetwo Receipt for Merchardiee D tnsured Mall £1.6.0.0, ; 4 jeatlotod Dalvery? (Extra Fee) Registered Agent cena CT ‘Corporat * CT Corporation System rasviote 1200 South P] 1200 South Pine Island Road fenéomet piantation, F). Plantation, Florida 33324 BUSSE ARE NOS” or PO Box No, Oli Stake, AT [ae 2. 2008 3230 0003 5048 158? “ofmrerrrvirrseryrooranoy— PS Form 3811, February 3604 7008 3230 DOD3 soya 14987- Domestto Return Reodpt 102699-02-M-1840

Docket for Case No: 12-002257

Orders for Case No: 12-002257