STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . V8 Case Nos. 2012005203 FLORIDA CARING HANDS CORPORATION 2012007816 d/b/a APPLE HOUSE I, 2012009374 : 2012012761 Respondent, Sy TRAT, col AINT 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, Florida Caring Hands Corporation d/b/a Apple House I (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (201 1), and alleges: _. NATURE OF THE ACTION This is an action against an. assisted living facility to revoke Respondent’s license to operate an assisted living facility in the State of Florida and to impose an administrative fine in the amount of twenty-eight thousand five hundred dollars ($28,500.00) based upon two (2) class I deficiencies and four (4) class II deficiencies. JURISDICTION AND VENUE 1, The Agency has jurisdiction pursuant to §§ 20,42, 120.60, and Chapters 408, Part II, and 429, Part I, Florida Statutes (2012). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207, PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living. facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 58A-5, Florida Administrative Code, respectively. 4. Respondent operates a twenty-five (25) bed assisted living facility located at 422 Pleasant Street, Pomona Park, Florida 32181, and is licensed as an assisted living facility, license number ' 8345, 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 1(A30 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 9,’ That Florida law provides: (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, 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 a.m. and 9 p.m, ata 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. (fp Manage. his or her financial affairs unless the resident or, if applicable, the resident’s tepresentative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in s, 429,27. (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. Section 429.28(1)(a through j), Florida Statutes (2011). 8. That Florida law provides: (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S,, ora summary provided by the Long-Term Care Ombudsman Council shall be posted in full view in a freely accessible resident area, and included in the admission package provided pursuant to Rule 58A-5.0181, F.A.C. (b) In accordance with Section 429.28, F.S., the facility shall have a written gtievance procedure for receiving and responding to resident complaints, and for residents to recommend changes to facility policies and procedures, The facility must be able to demonstrate that such:procedure is implemented upon receipt of a - complaint. (c) The address and telephone number for lodging complaints against a facility or facility staff shall be posted in full view in a common area accessible to all residents, The addresses and telephone numbers are: the District Long-Term Care: Ombudsman Council, 1(888)831-0404; the Advocacy Center for Persons with Disabilities, 4(800)342-0823; the Florida Local Advocacy Council, 1(800)342- 0825; and the Agency Consumer Hotline 1(888)419-3456, (d) The statewide toll-free telephone number of the Florida Abuse Hotline “1(800)96-ABUSE or 1(800)962-2873” shall be posted in full view in a common area accessible to all residents. (e) The facility shall have a written statement of its house rules and procedures which shall be included in the admission package provided pursuant to Rule 58A- 5.0181, F.A.C. The rules and procedures shall address the facility’s policies with respect to such issues, for example, as resident responsibilities, the facility’s 4 ee alcohol and tobacco policy, medication storage, the delivery of services to residents by third party providers, resident elopement, and other administrative and housekeeping practices, schedules, and requirements. (f) Residents may not be requiréd to perform any work in the facility without compensation, except that facility rules or the facility contract may include a requirement that residents be responsible for cleaning their own sleeping areas or apartments. If a resident is employed by the facility, the resident shall be compensated, at a minimum, at an hourly wage consistent with the federal minimum wage law. (g) The facility shall provide residents with convenient access to a telephone to facilitate the resident's right to unrestricted and private communication, pursuant to Section 429,28(1)(d), F.S. The facility shall not prohibit unidentified telephone calls to residents, For facilities with a licensed capacity of 17 or more residents in which residents do not have private telephones, there shall be, at a minimum, an " accessible telephone on each floor of each building where residents reside. (h) Pursuant to Section 429.41, F.S., the use of physical restraints shall be limited to half-bed rails, and only upon the written order of the resident’s physician, who shall review the order biannually, and the consent of the residont or the residents representative. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance shall not be considered a physical restraint. Rule 58A+5,0182(c), Florida Administrative Code. co ts 9. That on February 2, 2012, the Agency completed an Extended Congregate Care monitoring survey of Respondents facility. 10. That based upon the review of records, observation, and interview, Respondent failed to ensure a safe and decent living environment, free from abuse and neglect, the same being contrary to the requirements of law. 11. ° That Petitioner’s representative interviewed resident number two (2) on February 2, 2012 at 11:08 AM and the resident indicated as follows: : a, "My roommate (resident number one [1]) hit me in the back of the head about a month ago and I told staff, nothing was done, Sometimes [the resident] hits my head, sometimes [the resident] hits my shoulder. I always tell staff. This has happened four times and I reported it four times. The staff talks to [the resident], but it doesn't do any good. I have.to go out of the room. It happens about once a month, They never offered a different roommate or room. They won't give me 5 ade one.” Resident number two (2) did not know how to use a telephone because the resident cannot read and did not go to school. 12, That Petitioner’s representative interviewed Respondent’s administrator related to resident number one (1) on February 2, 2012 at 3:28 PM and the administrator indicated as follows: a, b. The plan for resident number one (1) was to speak positively to the resident. She spoke with both residents numbered one (1) and two (2) when the complaint — was made and told them to avoid each other. When resident number one (1) watches loud television late at night with offensive material, resident number two (2) comes out of the of the room. Resident number two (2) went back into the room when resident number one (1) was out of the room. Resident number one (1) was eighty-three (83) years old and the administrator was aware of the complaints from other residents about the resident. She tried to find another facility to accept resident number one (1), but was not successful. She was going to have a psychiatrist see resident number one (1), but the resident shouted at the doctor and refused to be seen by him. She did not make a note on the resident's record and the psychiatrist did not make a note because the resident would not agree to be seen. She had another room, that was empty, but it was private and the other resident could not afford it. 13. That. Petitioner's s | representative 1 reviewed Respondent?s records related to residents numbered one (1) and two (2) during the survey and noted as follows: a. There was no referral for an evaluation by a psychiatrist in the records of resident number one (1). Resident number two (2) was seventy (70) years old and had the following diagnosis: Parkinson's, (DID) Degenerative Joint Disease right shoulder, and Leaming Disabilities. 14. . That Petitioner’s representative interviewed resident number seven (7) on February 2, 2012 at 2:10 PM and the resident indicated as follows: a. b. Two (2) weeks ago the police were called for-resident number three (3). Resident number three (3) had torn things up, knocked things off the wall and broken glass. Resident number three (3) took off the resident’s shirt in front of the police officer, | d. Resident number three (3) had eloped the same day and the staff went and brought the resident back. e. Residents were afraid of resident number three (3). “15, That Petitioner’s representative interviewed resident number four (4) on February 2, 2012 at 2:20 PM and the resident indicated as follows: a‘ The resident was afraid of the resident in the next room, resident number three (3) b. The residents share the same bathroom. c. "[The resident] says you better run, you better watch out," d, One night when the resident woke, resident number three (3) was sitting in the resident’s room in the resident’s chair and wearing the resident’s coat. Resident number three (3) was staring at resident number four (4), didn’t say anything to resident number four (4), and was wearing only a bra, 16. That Petitioner's representative interviewed Respondent’s administrator regarding resident number three (3) on February 2, 2012 at 2:30 PM and the administrator indicated as follows: a. Resident number three (3) had broken picture frames, went room to room, and was naked in the living room in a chair. b. Staff panicked because at first they couldn't find the resident, c. Resident number three (3) refused Ativan. d. The police and mental health were called and the resident was admitted involuntarily. @ Resident number three (3) was diagnosed with schizophrenia, anxiety and depression. f. The resident was released back to the facility on February 1, 2012. G). - The resident had tried to hit her also. The administrator was aware the residents were all aftaid of resident number three She was trying to find placement, had spoken with the resident’s Case Manager, and had an appointment for February 2, 2012. Her plan was to keep an eye on the resident to prevent elopement and be more positive when talking with the resident. 17. That Petitioner’s representative interviewed Respondent’s caregiver number one (1) regarding resident number three (3) on February 2, 2012 at 3:45 PM and the caretaker indicated as follows: “a. She was concerned for the safety of other residents. b. c. d, Resident number three (3) had threatened to hit her. The sheriff's office had been called for resident number three (3) threatening staff and the resident had also threatened the administrator. Residents had come to her and said they were afraid of resident number three (3). 18. That Petitioner’s representative reviewed Respondent’s records related’ to resident number three (3) during the survey and noted the following entries in the observation log: a, August 3, 2011 at 5:10 PM - The resident was seen by a caregiver strangling the resident’s neck under the resident’s roommate’s bed. The sheriff's office was called. The note further stated resident number three (3) had threatened "...all the " residents and the workers here in the facility." November 9, 2011 - The resident tried to hit the owner and cursed her, January 18, 2012 - The resident threw a glass which broke and cursed the staff. The sheriff's office was called. January 24, 2012 - The resident was destroying things in the resident’s room. The note further stated the resident jumped the fence and was found at the park and was returned by staff. . January 24, 2012 - The resident went into every room and locks []self in almost all of the rooms inside the facility. The resident kept on showing [the resident's] rude side, Caregiver on duty called the sheriff. [The resident] was taken, by the police officers." January 24, 2012 - The voluntary statement taken by the police officers at the facility stated resident number three (3) was "very violent and was endangering the residents and attacking workers." -19.. That Petitioner’s representative observed the physical plant and operations on February 2, 2012, during the survey and noted as follows: a. At 9:50 AM it was noted that required postings of the Advocacy Center for Persons with Disabilities, 1(800)342-0823, the Agency Consumer Hotline 1(800) 419-3456, and the statewide toll-free telephone number of the Florida Abuse Hotline "1(800)966-ABUSE or 1-(800)962-2873 were not in the facility or otherwise or accessible to all residents. At 10:50 AM in the: living room/dining room/activities room, the assistant administrator called out, "[Resident’s name], do you want to pee?" Three other residents were present and one was walking by the assistant administrator and the sutveyor was standing next to her. At 9:50 AM in a hallway outside the medication room was a list of the residents titled "Resident Evacuation Capabilities Apple House I". The room number, resident name, and a designation of "promp" or "slow" or "impract" was noted. 10 a ne et lee Nineteen (19) residents were designated as "promp," five (5) as "slow," and none as "impraet." A note at the bottom stated "promp - 3 min or less, slow 3 - B min, impractical - more than 3 min." This hall is open and accessible to the facility's _ residents and visitors. -20. That Petitioner’s representative interviewed Respondent’s assistant administrator regarding the posted resident. information on February 2, 2012 at 10:00 AM who indicated that the "Resident Evacuation Capabilities Apple House I" posted with resident names is utilized as the evacuation plan for the staff to know the room numbers of the residents and the ones who could be evacuated the quickest. "21. That the above reflects Respondent’s failure to ensure that its residents are provided a safe and decent living environment free from abuse and neglect including but not limited to Respondent’s failure to ensure the protection of known alleged victims of abuse and to protect the safety of residents from other residents known’ to possess behaviors that are violent, threatening, and potentially harmful, thereby threatening resident physical and emotional well- being; the failure to post and educate residents of their rights and mechanisms to report abuse or neglect, and the failure to protect the privacy and dignity of residents, 22. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which presents an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. 23, That the same constitutes a Class I offense as defined in Florida Statute 429.19(2)(a) (2011). WHEREFORE, the Agency intends to impose an administrative fine in the amount of ten MH thousand dollars ($10,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429,19(2)(a), Florida Statutes (2011), | COUNT I 24, The Agency re-alleges.and incorporates paragraphs (1) through (5) as if fully set forth herein, 25. That Florida law provides: (1) ADMINISTRATORS, Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the ‘facility including the management of all staff and the provision of adequate care to all residents as required by Part I of Chapter 429, F.S., and this rule chapter. Rule 58A-5.019(1), Florida Administrative Code. 26. That on February 2, 2012, the Agency completed an Extended Congregate Care monitoring survey of Respondent’s facility. 27, That based upon the review of records, observation, and interview, Respondent’s administrator failed to ensure the operations of the Respondent facility including the provision of adequate care for residents, the same being contrary to the mandates of law. 28. The Agency re-alleges and incorporates Count I as if fully set forth herein. 29. That the above reflects Respondent's failure to ensure that its administrator operated the facility to assure the provision of adequate care for residents including but not limited to the failure to devise and implement interventions which protect residents from potential harm presented by known violent and threatening behaviors of other residents, and the failure to protect resident rights to privacy and dignity. 30. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which presents an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. 31. - That the same constitutes a Class I offense as defined in Florida Statute 429,19(2)(a) (2011). WHEREFORE, the Ageney intends to impose an administrative fine in the amount of ten thousand dollars ($10,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(a), Florida Statutes (2011). COUNT Il (A74) 32. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 33, Under Florida law, no resident of an assisted living facility shall be deprived of any civil ot 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). 34. . ‘Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408,809(1)(c) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla, Stat. (2011). . 35. 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 similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d)} Any person who is a controlling interest if 13 ned 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 shall 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 screening may be retained by the conttactor’s employer ot the licensee, § 408.809(1), Fla. Stat. (2011). ’ 36, 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 rescreening, 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 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, 37. 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 14 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). ) 38, Under Florida law, in addition to the offenses listed in Section 435.04, all persons required 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). 39. Under Florida law, if an employer or Agency has reasonable cause to believe. that gtounds 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 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). 40. Under Florida Jaw, 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 15 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 hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a tole 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 becomes 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 requites 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). 41, | 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). 42, Under Florida law, personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis. In addition, records shall contain the following, as applicable - Documentation of compliance with level 1 background screening for all staff subject to screening requirements as required under Rule 58A-5.019,.F.A.C.. Rule 58A-5.024(2)(a)3, Florida Administrative Code, 16 43, 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 are 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 checks to protect vulnerable persons. Chapter 435, Florida Statutes, outlines the background screening standards for Level 1 employment screening and Level 2 employment screening. 44, In 2010, the Florida Legislature substantially rewrote the requirements and procedures for criminal background screening of the persons and busiriess 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 new 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 completed, (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 ftom disqualification for employees until three after the completion of all sentencing sanctions.! 45, 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 frail elders with mental and/or physical 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 ! 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 snacted into law by the Florida Legislature effective July 1, 2010. Ch. 2010-114, Laws of Fla. 17 ee ey 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 screening bolsters the public’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. 46. | On or about May 7, 2012, the Agency completed a biennial survey of the Respondent, 47. Based upon record review and interview, the Respondents failed to ensure that the staff had the required background screening for one (1) of three (3) sampled. staff members. 48, Staff member “B” was hired by the Facility on or about January 12, 2012, and provided personal services to the residents of the Facility. 49. A review of the personnel file for Staff member “B” revealed no background screening or an unsatisfactory background screening result. 50. That Petitioner’s representative interviewed Respondent’s administrator regarding the criminal background screening for staff member “B" and the administrator confirmed that she could not locate a criminal: history background screening for staff member “B.” 51. The Respondent’s actions or inactions constituted a class II violation. 52. 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). 53. Under Florida law, 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. § 18 429.19(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 one thousand five hundred ($1,500.00) against the Respondent, COUNT IV (A80) 53, The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 54, That Florida law provides: (b) Administrators and managers must successfully complete the assisted living facility core training requirements within 3 months from the date of becoming a facility administrator or manager. Successful completion of the core training requirements includes passing the competency test. The minimum passing score for the competency test is 75%. Administrators who have:attended core training prior to July 1, 1997, and managers who attended the core training program prior to April 20, 1998, shall not be required to take the competency test, Administrators licensed as nursing home administrators in accordance with Part It of Chapter 468, F.S., are exempt from this requirement. Rule 58A-5.0191(1)(b), Florida Administrative Code. 55. On or about May 7, 2012, the Agency completed a biennial survey of the Respondent, 56, That based upon the review of records, observation, and interview, Respondent failed to ensure its manager timely completed the required CORE training and demonstrated competency, the same being contrary to the requirements of law. 19 “Ne 57. _. That Petitioner’s representative reviewed the personnel records ‘of staff member “B” during the survey and noted that the staff member had completed a CORE certification course in February 2012, however there was no record reflecting that the staff member had successfully passed the required competency test. ) 58. That Petitioner’s representative interviewed Respondent’s staff member “B” during the survey who indicated as follows: a. She was the manager of the Respondent facility. b She had completed the CORE training course, but had failed the competency test and is waiting to retake the test, 59. - That the above reflects Respondent's failure to ensure that its residents were provided care and services by competent trained staff. 60. The Agency determined that this deficient practice was a condition ot occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class I violations. 61. That the same constitutes a Class II offense as defined in Florida Statute 429,19(2)(b) (2011). . . WHEREFORE, the Agency intends to impose an administrative fine in the amount of two thousand dollars ($2,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(b), Florida Statutes (2011). COUNT V (A80) 62. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. | 63. That Florida law provides: (b) Administrators and managers must successfully complete the assisted living 20 facility core training requirements within 3 months from the date of becoming a facility administrator or manager, Successful completion of the core training requirements includes passing the competency test. The minimum passing score for the competency test is 75%. Administeators who have attended core training prior to July 1, 1997, and managers who attended the core training program prior to April 20, 1998, shall not be required to take the competency test, Administrators licensed as nursing home administrators in accordance with Part II of Chapter 468, F.S., are exempt from this requirement. Rule 58A-5.0191(1)(b), Florida Administrative Code. 64. On or about July 11, 2012, the Agency completed a follow-up to the biennial survey of the Respondent. wee Le 65. That based upon the review of records, observation, and interview, Respondent failed to ensure its manager timely completed the required CORE training and demonstrated competency, the same being contrary to the requirements of law. 66. . That Petitioner’s representative reviewed the personnel records of staff member “B” during the survey and noted that the staff member had completed a CORE certification course in February 2012, however there was no record reflecting that the staff member had successfully passed the required competency test, 67. That Petitioner's representative interviewed Respondent’s staff member “B” during the survey who indicated as follows: a. She was the manager of the Respondent facility. b. She had completed the CORE training course, but had failed the competency test and re-took the test in June and is awaiting the results. 21 68. . That the above reflects Respondent’s continued failure to ensure that its residents wore provided care and services by competent trained staff, despite being cited with this same , deficient practice in May 2012. 69, ’ The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance ofa provider or to the care of clients which directly threatens the physical or emotional. health, safety, or security ofthe clients, other than class I violations.” 70. That the same constitutes a Class II offense as defined in Florida Statute 429.19(2)(b) (2012). . WHEREFORE, the Agency intends to impose an administrative fine in the amount of two thousand dollars ($2,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429,19(2)(b), Florida Statutes (2012). OUNT VI(A80 71. The Agency revalleges and incorporates paragraphs (1) through (5) as if fully set forth herein. . | 72. That Florida law provides: (b) Administrators and managers must successfully complete the assisted. living facility core training requirements within 3 months from the date of becoming a facility administrator or manager, Successful completion of the core training requirements includes passing the competency test. The minimum passing score - for the competency test is 75%. Administrators who have attended core training ptior to July 1, 1997, and managers who attended the core training program prior to April 20, 1998, shall not be required to take the competency test. Administrators licensed as nursing home administrators in accordance with Part II of Chapter 468, F.S., are exempt from this requirement. 22 ee Y Rule 58A-5.0191( 1)(®), Florida Administrative Code, 2. On or about August 20,.2012, the Agency completed a second follow-up to the biennial Survey of the Respondent, . _ 74. . That based upon the review of records, observation, and interview, Respondent failed to ensure its manager timely completed the required CORE training and demonstrated competency, the same being contrary to the requirements of law. . 73. That Petitioner's representative reviewed the personnel records of staff member “B” during the survey and noted that the staff member had completed a CORE certification course, however there was no record reflecting that the staff member had successfully passed ithe required competency test. 16. That Petitioner's Tepresentative interviewed Respondent’s staff member “B” during the i survey who indicated as follows: a, She was the manager of the Respondent facility, b. She had completed the CORE training course, but had failed the competency test, ~- . the most recent failures from testing of June 30 and July 25, 2012, and is again scheduled to retake the test, . . 77. That the above reflects Respondent’s failure to ensure that its residents were provided care and services by competent trained staff despite having been cited with this deficient practice in May and July, 2012, 78. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which directly threatens the physical or emotional health, safety, or security of the clients, other than class J violations, 23° ieee 79. ; That the same constitutes a Class II offense as defined in Florida Statute 429.19(2)(b) (2012). ’ WHEREFORE, the Agency intends to impose an administrative fine in the amount of three thousand dollars ($3,000.00), against, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(b), Florida Statutes (2012). COUNT VII (Revocation) 80. The Agency re-alleges and incorporates Paragraphs. one (1) through five (5) and Counts I through Vi as if fully set forth herein: . 81. That Respondent has been cited with two Class I deficiencies on a survey of February 2, 2012, two (2) Class II deficient practices on a survey of May 7, 2012, one (1) Class II deficient August 20, 2012, including the failure to comply with criminal background screening standards and repetitive citation of the failure to ensure management obtain required training. 82. That Florida law provides: In addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person , subject to level 2 background screening under s. 408.809, or for the actions of any facility employee ...(¢) A citation of any of the following deficiencies as specified in s. 429.19: 1. One or more cited class I deficiencies. 2. Three or more cited class II deficiencies. 3. Five or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified. (f) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435. Section 429.14(1)(e and f), Florida Statutes (2012). 24 83, That Florida law provides that in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of — ownership application. include any of the following actions by a controlling interest: (b) An intentional or negligent act materially affecting the health or safety of a client of the provider, (c) A violation of this part, authorizing statutes, or applicable tules, and (d) A demonstrated pattern of deficient performance, . Section 408,81 5(1)(b), (c)and (d), Florida Statutes (2012), 84. That Respondent has violated the minimum requirements of law of Chapters 429, Part II, and Chapter 584-5, Florida Administrative Code as described with particularity within this complaint. ) 85. That Respondent has a duty to maintain its operations in accord with the minimum requirements of law and to provide care arid services at mandated minimum standards. af 86. That the above reflects a demonstrated pattern of deficient performance. ' 87. That the above reflects grounds for which the Agency may tevoke Respondent’s licensure to operate and assisted living facility in the State of Florida. 88. That Respondent has a duty to maintain its operations in accord with the minimum’ wb 8 standards of law and its actions or inactions as described with particularity within this complaint constitute intentional or negligent acts which are in violation of the mandates of law and ‘materially affected the health or safety of residents, 89. That based thereon, individually and collectively, the Agency seeks the revocation of the Respondent’s licensure. ns en 25 WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida, Respectfully submitted this” day of January, 2013, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Telephone: (72 Florida 33701 7) 552-1947 Facsimile: (727) 552-1440 By: fomas J. NOTICE "Fla, Bar No. 566365 Walsh Il, Esq. 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 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 receiyed 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 Agen cy 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, 26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No. 7010 0780 0001 9836 2596 on January 3, 2013 to Ulysses F. Vinarta, Jr., Registered Agent, Florida Caring Hands Corporation, 2301 South Highway 17, Crescent City, Florida 32112,.and to Mary Ann Vinarta, Administrator, Florida Caring Hands Corporation d/b/a Apple House I, 422 Pleasant Street, Pomona Park, Florida 32181. Thomas J. Walsh II, Esq, Copy furnished to: Kriste Mennella Ulysses F. Vinarta, Jr, ; Thomas J. Walsh, II Field Office Manager Registered Agent Senior Attorney . Florida Caring Hands. =. Agency for Health Care Admin. Corporation 525 Mirror Lake Drive, #330G 2301 South Highway 17 St. Petersburg, FL 33701 Crescent City, Florida 32112 — (Interoffice Mail) (US Certified Mail) Mary Ann Vinarta Administrator Florida Caring Hands Corporation d/b/a Apple House I 422 Pleasarit Street Pomona Park, Florida 3218 (Regular U.S. Mail) 27 nn a ; Uk , Vinaria, Je. 4 Registered Agent j, Florida Caring Hands Corporation ji 2301. South Highway 17 }, Crescent City, Florida 32112

Docket for Case No: 13-000836

Orders for Case No: 13-000836