STATE OF FLORIDA 7 AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. : "Case No. 2012008244 EROM THE HEART ASSISTED LIVING, LLC Respondent. . / 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, From The Heart Assisted Living, LLC (“Respondent”), pursuant to Sections 120,569 and 120.57, Fla. Stat. (2012), and alleges: . . . NATURE OF THE ACTION This is an action against an assisted living facility (*ALF”) to impose $3,000 and $1,000 administrative fines for two State Class II deficiencies (Counts I & II), and to assess a $370 survey fee (Count IH), The total assessment is for $4,370. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla, Stat. (2012). 2. Venue lies pursuant to Florida Administrative Code (‘F.A.C.”) R. 28-106.207. Filed December 20, 2012 12:35 PM Division of Administrative Hearings PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable state statutes and rules governing ALF's pursuant to the Chapters 408, Part II, and 429, Part 1, Fla, Stat., and Chapter 58A-5, F.A.C., respectively. . 4, Respondent operates a six bed ALF located at 1945 19" St. S., St. ‘Petersburg, FL 33712, and is - licensed as an ALF, license number 11098, with Limited Mental Health and Limited Nursing Services | | specialty licenses. . 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 ($3,000 CLASS Tl FINE) 6. The Agency re-alleges and incorporates paragraphs 1-5 as if fully set forth herein. 7. Two complaint surveys, CCR # 2012004021 & 2012004118, were conducted at this ALF on 13 _ April, 2012. 8. Based on record review and interview, the facility/administrator failed to ensure that a resident, who the administrator knew or should have known based on ample documentation had violent criminal and troubled mental history, met the admission and/or continued residency criteria where that resident’ s known actions and behavior demonstrated a risk to other residents. 9, The sutveyor learned the following information by reviewing records and interviewing staff: a. The surveyor’s reviewed the facility’ records and learned the following regarding resident #1, a 52 year old male who was admitted to the facility on 12/10/ 10, following his discharge from the State’s Hospital (a hospital and mental institution) in Chattahoochee, and whose demographic information included special instructions regarding a court ordered curfew. the State’s Hospital (a hospital and mental institution) in Chattahoochee, and whose demographic information included special instructions regarding a court ordered curfew. b. He was in the State’s custody prior to admission and was subject to electronic monitoring as well as receiving counseling as a sex offender, c. His health assessment (AHCA Form 1823) section 1 dated and signed by a physician on 12/2/10 indicates under Cognitive or Behavioral Status to refer to the psychiatrist/psychologist notes. Form Section 2. D, 4, regarding special conditions/requirements, where it specifically asks if the . resident poses a danger to self or others, directs the reader to refer to the ‘psych notes.’ d. His clinical summary dated 4/22/10 indicates he had six prior confirmed hospitalizations since 1989 with a diagnosis of paranoid schizophrenia, pedophilia, exhibitionism, alcohol abuse, cannabis abuse, and cocaine abuse. It also stated that he has a criminal history which includes ‘homicide, two counts of sexual, abuse and two counts of battery. e. The facility’s ‘Resident Observation Log’ dated 4/10/12 it indicated that the administrator had been notified on 4/9/12 at 3:00 pm by staff member A that on an unknown date resident #1 sexually assaulted his roommate, resident #2. Resident #2 reported the incident to his stepfather and was relocated to another facility. The stepfather reported the incident to his stepson’s care worker and mother, the latter who in turn reported the incident to staff member A. The administrator documented reporting the incident to the abuse hotline. This resident was developmentally disabled. f. During an interview with staff #A on 4/13/12 at 8:00 pm she stated that when resident #2 moved out of the facility resident #3, whose was admitted on 7/15/10 with medical conditions of Asperger’s Syndrome, Autism and PTSD, was moved into the bedroom with Resident #1. The staff reported to the administrator that resident #3 was having difficulty sleeping in the same room with resident #1 and was acting out. The staff reported that resident #1 was agitating other residents including resident #3 who became difficult to handle. The staff had to remove the mattress from his bedroom every night and place it in an area where he could be watched so that he would feel safe to fall asleep, g. The surveyor interviewed former female staff member F on 4/15/12 at approximately 4:00 pm by phone. She said she left because resident #1 was always making sexual comments to her. On December 31st she was working the 11:00 pm - to 8:00 am shift and brought in some juice to serve the residents at midnight but all of them had gone to bed so she sat on one end of the sectional sofa to watch TV. Resident #1 came out of his room and sat on the far end of the sofa, making comments that made her uncomfortable. He told her that he wanted her and that she was beautiful. She asked him to stop and go back to his room. He moved closer, took her hand and placed it on his pants where she felt his penis and told her no one would know. She said no and got up but he told her he watched her fall asleep on the sofa at night and could get some when he wanted to. She became scared and phoned her mother who stayed on the phone with her all night. | -h. Former staff member F also stated that at another time resident #1 had dumped all his change on the floor and asked her to help him count it. He told the administrator that she was on the floor showing him her breast. When she reported the incident to the administrator, the administrator asked her if she was attracted to him and that she must have been since she let him down so nicely. No one wanted to get him angry because they were afraid of him. The employee stated she decided to go back to school and that she did not want to work there anymore carrying pepper spray. The administrator felt that resident #1 was a victim and because of his history people including her staff treated him differently. i, Former staff member F also stated that they did not document their reports. The administrator did not have any forms, a log, or reports that they were trained to use. The employees communicated with the administrator verbally in person or by phone. 10, a, Florida statutory law states the following as regards the appropriateness of an ALF resident for admission and continued residency: | 429.26 Appropriateness of placements; examinations of residents.— (1) 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. ... F Section 429.26, Fla. Stat, (2011) 4 b. Florida regulatory laws state the following requirements regarding an ALF’s residents: 58A-5.0181 Admission Procedures, Appropriateness of Placement and Continued Residency Criteria, (1) ADMISSION CRITERIA. 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: : (g) Not be a danger to self or others as determined by a physician, or mental health practitioner licensed under Chapters 490 or 491, F.S. (h) Not require licensed professional mental health treatment on a 24-hour a day basis. (n) 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 (4) CONTINUED RESIDENCY. Except as follows in paragraphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be vee dtd the same as the criteria for admission. ... (d) The administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility. (e) Continued residency criteria for facilities holding an extended congregate care license are described in Rule 58A-5.030, F.A.C. (5) DISCHARGE. If the resident no longer meets the criteria for continued residency, or the facility is unable to mect the resident’s needs, as determined by the facility administrator‘or licensed health care provider, the resident shall be discharged in accordance with Section 429.28(1), F.S. Rule 58A-5.0181, F.A.C. §8A-5.0182 Resident Care Standards, An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION, 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 58A-5.020, F.A.C, (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. Rule 58A-5.0182, F.A.C. 11, The Agency deterrnined that these deficient practices were conditions or occurrences related to the operation and maintenance of a provider or to the cate of clients which directly threatened the physical or emotional health, safety, or security of the clients, other than class_I violations. 12. . The same constituted a State Class II offense, defined as follows: 408.813 Administrative fines; violations. —As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ classified according to the nature of the violation and the gravity of its probable effect on clients. ... Violations shall be classified on the written notice as follows: (b) 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. The agency shall impose an — wee ee te des administrative fine as provided by law for a cited class II violation. A fine shail be levied notwithstanding the correction of the violation. Section 408.813, Fla. Stat. (2011) 13. The fine for a Class II violation is set forth as follows: 429.19 Violations; imposition of administrative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the ... actions of a facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility, (2) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation in an amount not less than $1,000 and not exceeding $5,000 for each violation. (3) For purposes of this section, in determining ifa penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: , (a) ° The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. - (b) Actions taken by the owner or administrator to correct violations. (c) Any previous violations, ‘ (d) The financial benefit to the facility of committing or continuing the violation. (e) The licensed capacity of the facility. (7) Inaddition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the 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 s. 429.28(3) (c) to verify the correction of the violations. Fla. Stat. 429.19 (2011) WHEREFORE, the Agency intends to impose a $3,000 administrative fine against 7 Respondent, an ALF in the State of Florida, putsuant to Section 429.19 (2) (b) and (3), Fla. Stat. (2011). COUNT II ($1,000 CLASS JIFINE) 14. The Agency re-alleges and incorporates paragraphs 1 - 5 and Count I as if fully set forth herein, 15, The facility/administrator failed to maintain a proper awareness of the general health, safety, and physical and emotional well-being of its residents. _16, a. Florida regulatory law, Rule 5-5.0182 (see paragraph 9 above) states the requirement to provide appropriate personal supervision for each resident in an ALF, b. Florida’s statutory law states: 429.28 Resident bill of rights — , (1) 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, ftee from abuse and ° neglect. Section 429,28, Fla. Stat. (2011) 17, — The surveyor learned the following additional information about this deficiency: a, During a record review of resident #1 on 4/11/12 it was revealed the resident was admitted to the facility with conditions that include a curfew, electronic monitoring, and sex offender counseling, b. Staff member A stated during a phone interview on 4/13/12 at approximately 8:00 p.m. that resident #1 had provoked and bullied other residents at the facility, The resident yelled, made sexual comments, threatened the staff by saying they violated his rights and he would phone the police, he also reported staff to the administrator who believed whatever he told her. c. During a phone interview with staff member Con 4/13/12 at approximately 8:20 pm the employee stated that she was worried about the residents. The employee stated she had seen resident ante ne #1 kick resident #2 who was $0 afraid that he just sat there and did not move even though resident #1 was calling him out and trying to provoke the resident to get up and face him. The incident was reported to the administrator who felt that the two residents could work it out. 4. Resident #1 has Idicked #2 who was too afraid to respond, Resident #2 reported sexual abuse and stated that he did not call out for help or report it to the administrator or staff because he was afraid of what resident #1 would do to him. e, Resident #3 would not sleep in the same bedroom and the staff removed his mattress each night and placed it where they could watch the resident sleep without fear, When the administrator was asked if she addressed the alleged sexual assault with resident #1 she stated on 4/11/12 at approximately 2:00 pm that she had not discussed it with the resident because she did not know how he would teact, ’ 18. The Agency determined that the deficient practice detailed above was a condition or occurrence related to the cate of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 19. The same constitutes a State Class II offense, defined in paragraph 12 above: 20, The fine for a Class II violation is set forth in paragraph 13 above: WHEREFORE, the Agency intends to impose a $1,000.00 administrative fine against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (2) (b), Fla. Stat. (2011). COUNT III ($370 SURVEY FEE) 21. The Agency re-alleges and incorporates paragraphs 1-5 and Counts I and I] as if fully set forth herein. 22. Pursuant to Section 429.19 (7), Fla. Stat. (2011) (see paragraph 13 above), in addition to any administrative firies 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), Fla. Stat., to verify the correction of the violations. 23. The citations of the two Class I deficient practices based on the 13 April, 2012, survey were the subjects of ‘two complaints. . 24. Respondent is therefore subject to a $370.00 survey, pursuant to Section 429,19 (7), Fla. Stat. (2011). WHEREFORE, the Agency intends to impose a $370 survey fee against Respondent, an ALF in the State of Florida, pursuant to Section 429.19 (7), Fla, Stat. (2011). “af ey Submitted this 1b day of November, 2012. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirrot Lake Dr. N., Suite 330H _ St. Petersburg, FL 33701 Ph: (727) 552-1942 Fax: ( ie ; By: ‘ ( J ~ Edwin D. Selby, Esq. Fla, Bar No. 262587 Attorney for Petitioner NOTICE OF RIGHTS The Respondent is notified that it/he/she has 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/he/she has the right to be represented by an attorney in this matter. Specific options 10 i. - 32712, , | C bei. iQ _ 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. CERTIFICA’ OF SERVICE I HEREBY CERTIFY that a true and contest copy of the foregoing has been served by US. Certified Mail, Return Receipt No. 7011 0470 0000 7951 4378 onf November, 2012, to Administrator Letitia Stephens, From The Heart Assisted Living, 1945 19 St. S., St. Petersburg, FL - 33712, and by regular U.S. mail to Registered Agent Letitia Stephens, 536 61" St. S., St. Petersburg, FL Edwin D. Selby, Esq. Copy furnished to: Pat Caufman, AHCA Area 5 Field Office Manager 11 Administrator Letitia Stephanis, From The Heart Assisted Living 1945 19th Sts, St. Petersburg, FL 33712. -

Docket for Case No: 12-004122

Orders for Case No: 12-004122