STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No.: 2013007748 EMERITUS PROPERTIES-NGH, LLC d/b/a EMERITUS AT MELBOURNE, Respondent, ADMINISTRATIVE COMPLAINT The State of Florida Agency for Health Care Administration (hereinafter “Petitioner” or . “Agency”), by and through the undersigned counsel, files this Administrative Complaint against Emeritus Properties-NGH, LLC d/b/a Emeritus at Melbourne (hereinafter “Respondent”), pursuant to Section § 120.569 and Section § 120.57, Florida Statutes (2012), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine in the amount of $3,000.00 based upon one State Class II deficiency pursuant to Section § 429.19(2)(b), Florida Statutes (2012). JURISDICTION AND VENUE 1, . The Agency has jurisdiction pursuant to Section § 20.42, Section § 120.60 and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2012). 2. Venue lies pursuant to Florida Administrative Code Rule 28-106.207. PARTIES 3, The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter 584-5, Florida Administrative Code. 4, Respondent operates a 102-bed assisted living facility (hereafter “ALF”) with Limited Nursing Services (“LNS”) located at 1765 West Hibiscus Boulevard, Melbourne, Florida 32901. It is licensed as an ALF, license number 9396. 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 - tag A0025 6. . The Agency re-alleges and incorporates paragraphs one (1) through five (5) as if fully set forth herein. . 7. Pursuant to Florida law: Resident Care Standards: An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. 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. (c) General awareness of the resident's whereabouts. The resident may travel independently in the community. (d) Contacting the resident's health care provider and other appropriate party such as the resident's family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident's family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. (c) A written record, updated as needed, of any significant changes as defined in subsection 58A-5.0131(33), F.A.C., any illnesses which resulted in medical attention, major incidents, changes in the method of medication administration, or other changes which resulted in the provision of additional services. Fla. Admin. Code R. 58A-5.0182(1) wKK 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, 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. at a minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (ec) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community, (f) Manage his or her financial affairs unless the resident or, if applicable, the resident's representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in 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. (k) At least 45 days' notice of relocation or termination of residency from the facility unless, for medical reasons, the resident is certified by a physician to require an emergency relocation to a facility providing a more skilled level of care or the resident engages in a pattern of conduct that is harmful or offensive to other residents. In the case of a resident who has been adjudicated mentally incapacitated, the guardian shall be given at least 45 days' notice of a nonemergency relocation or residency : termination. Reasons for relocation shall be-set forth in writing. In order for a facility to terminate the residency of an individual without notice as provided herein, the facility shall show good cause in a court of competent jurisdiction. (1) Present grievances and recommend changes in policies, procedures, and services to the staff of the facility, governing officials, or any other person without restraint, interference, coercion, discrimination, or reprisal. Each facility shall establish a grievance procedure to facilitate the residents’ exercise of this right. This right includes access to ombudsman volunteers and advocates and the right to be a member of, to be active in, and to associate with advocacy or special interest groups. Section 429.28, Fla. Stat. (2012) 8. On May 9, 2013, the Agency conducted a complaint inspection, CCR #2013000791, of Respondent’s assisted living facility, and found it out of compliance with the above statute and rule. 9. Based on record review and interviews, the facility gave a resident a medication that she was allergic to and this resulted in an allergic reaction requiring emergency treatment. Findings included: Resident #3 Resident #3, a retired nurse, was alert and oriented. Her November 29, 2011, AHCA Form 1823 revealed (1823) diagnoses of hypertension, elevated lipids and atrial fibrillation. The resident was independent with ambulation, dressing, eating, grooming, toileting and transferring but needed supervision with bathing. She also needed assistance with self-administration of medications. Allergies listed on her 1823 included: Zetia (for blood lipids), Isosorbide (for heart), Daypro (for pain), Levaquin (antibiotic) and Percodan (narcotic for pain). Facility notes showed that: 12/31/12 -2 PM The resident complained of cough and chest congestion. Order received and was faxed and noted. 01/01/13-11 AM The resident was on antibiotic therapy and Tamiflu per order. Stated she had emesis x1 this AM. Encouraged to increase fluids. Refused AM meal, encouraged to stay in room, will continue to monitor status. 01/02/13 -9 AM The resident went to the Emergency Room (ER) via 911 at approximately 6 PM on 01/01/13. Resident discharged from ER 01/01/13 and went on leave of absence with family. Her 12/31/12 Healthcare Provider Communication Form documented that she had a cough and chest congestion and that she complained of shortness of breath, was using breathing treatment and that her temperature was 99 degrees Fahrenheit. It documented a 12/31/13 physician’s Order for Tamiflu (for flu symptoms) 75 mg., twice a day for 5 days; and Levaquin 500 mg. one daily for 10 days. Her December, 2012, and January, 2013, Medication Observation Record indicated that she had received the Levaquin 500 mg twice a day (charted as given, initials in box) on 12/31/12 and 01/01/13. Her 01/07/13 Healthcare Provider Communication Form documented her allergy to Levaquin. After receiving the medication, the resident had complained of _ itching and being unable to read. Her family took her to the ER on 01/01/13, the ’ day she took the second dose, A physician’s Order of 01/07/13 discontinued the Levaquin, stating “resident having itching and hives.” Resident #3°s Hospital Disposition/Discharged Patient Medications Report of 01/01/13 listed the medications given in Emergency Room: Sodium Chloride 0.9% infusion 1000 milliliters x2; Solumedrol, 125 mg IV push once; Famotidine, 10 mg IV push once; and Benadryl 50 mg IV push once. It required that she “Follow-up with primary physician in 3-5 days.” During an interview, Nurse A said that, when she got the order for Levaquin, the resident had flu-like symptoms so she sent the order to the pharmacy quickly, A med tech assisted the resident in taking the medication on 12/31/12. At the time, the resident was alert and oriented. She was also offered ginger ale and crackers. We had a hydration cart and snacks taking residents food and fluids. The nurse called and checked on her throughout the day but she did not want anything and was not complaining. The RCD was also interviewed and said that the resident usually got her meds from another pharmacy but this Order had been sent to a different pharmacy that would deliver the medications sooner. She explained that, because others in the facility had the flu, the physician wanted Resident #3 to get her flu medication right away. When the medication was delivered the facility did not check for allergies. The resident was discharged from the ER to the family's home and did not return to the facility, 10, The Respondent’s failure to be aware of the residents’ allergies, to keep proper documentation of same and for the licensed staff to assure proper care and supervision in that regard is unacceptable and violation of law. 11. The Agency determined that this deficient practice was related to the operation and maintenance of the Facility, or to the personal care of facility residents, and directly threatened the physical or emotional health, safety, or security of the facility residents. 12. | The Agency cited the Respondent for a Class II violation in accordance with Section 429.19(2)(b), Florida Statutes (2012). WHEREFORE, the Agency intends to impose an administrative fine in the amount of three thousand dollars ($3,000.00), against Respondent, an ALF in the State of Florida, pursuant to Section 429.19(2)(b), Florida Statutes (2012), NOTICE OF RIGHTS Respondent is notified of its right to request an administrative hearing pursuant to § 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 Agency for Health Care Administration, and delivered to Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg. #3, MS #3, Tallahassee, FL 32308; Telephone (850) 412-3630. The Respondent is further notified that the failure to request a hearing within 21 days of receipt of this Complaint 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 correct copy of the foregoing Administrative Complaint has been served by Certified Mail, Return Receipt #7011 0470 0000 7951 3500 to Corporation Service Company, Registered Agent, 1201 Hays Street, Tallahassee, FL 32301-2525 and by regular U.S. mail to Jill England, Administrator, Emeritus at Melbourne, 1765 West Hibiscus Blvd., Melbourne, FL 32901, this 26™ day of November, 2013. STATE OF FLORIDA, AGENCY FOR HEALTHCARE ADMINISTRATION 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, Florida 33701 (727) 552-1945; Fax: (727) 552-1440 suzanne.hurley@ahca.my florida.com STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: EMERITUS PROPERTIES-NGH, LLC CASE No. . 2013007748 EMERITUS AT MELBOURNE ELECTION OF RIGHTS This Election of Rights form is attached to a proposed 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 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 received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter! 20, 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: 850-412-3630 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 or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. 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 (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, the Notice of Intent to Impose a Late Fine, or Administrative ee 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 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. 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 or 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 mattcr if the Agency agrees. 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) Thereby certify that 1 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. Signed: Date: Print Name: Title: Late fee/fine/AC =! Agency for Health Care | Legal Office of the General Counsel 525 Mirror Lake Drive North Ste. #330 | St. Petersburg, Florida 33701 }

Docket for Case No: 13-004976

Orders for Case No: 13-004976