Ne STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2016014304 MANOR CARE CARROLLWOOD OF TAMPA FL, LLC d/b/a MANORCARE HEALTH SERVICES CARROLLWOOD, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Manor Care Carrollwood of Tampa FL, LLC d/b/a Manorcare Health Services Carrollwood (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2016), and alleges: NATURE OF THE ACTION This is an action to impose administrative fines in the amount of five hundred dollars ($500.00), based upon Respondent being cited for one (1) unclassified deficient practice. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2016). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4, Respondent operates a one hundred twenty (120) bed nursing home, located at 3030 Bearss Avenue, Tampa, Florida 33618, and is licensed as a skilled nursing facility license number 1315096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. ‘COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 7. 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. Staf. (2016). 8. That pursuant to Florida law, (1) The agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809. (2) The agency shall, as allowable, reimburse nursing facilities for the cost of conducting background screening as required by this section. This reimbursement is not subject to any rate ceilings or payment targets in the Medicaid Reimbursement plan. §400.215, Fla. Stat. (2016). 9. Under Florida law, every 5 years following his or her licensure, employment, or entry into acontract 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 sees” 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. 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. Until the person’s background screening results are retained in the clearinghouse created under section 435.12, the Agency may accept as satisfying the requirements of this section 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 Department of Elderly Affairs, 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, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in section 435.04, and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) 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. (2016). 10. That Florida law provides the following: “‘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: (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 contractor’s employer or the licensee. §408.809(1)(e), Florida Statutes (2016). 11. That pursuant to 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 hire, 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 s. 435.07. §435.06(2)(a), Florida Statutes (2016). 12. That pursuant to Florida law, a person who serves as a controlling interest of, is employed by, or contracts with a licensee on July 31, 2010, who has been screened and qualified according to standards specified in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015, in compliance with the following schedule. If, upon rescreening, such person has a disqualifying offense that was not a disqualifying offense at the time of the last screening, but is a current disqualifying offense and was committed before the last screening, he or she may apply for an exemption from the appropriate licensing agency and, if agreed to by the employer, may continue to perform his or her duties until the licensing agency renders a decision on the application for exemption if the person is eligible to apply for an exemption and the exemption request is received by the agency within 30 days after receipt of the rescreening results by the person. The rescreening schedule shall be: (a) Individuals for whom the last screening was conducted on or before December 31, 2004, must be rescreened by July 31, 2013. (b) Individuals for whom the last screening conducted was between January 1, 2005, and December 31, 2008, must be rescreened by July 31, 2014. (c) Individuals for whom the last screening conducted was between January 1, 2009, through July 31, 2011, must be rescreened by July 31, 2015. §408.809(5), Florida Statutes (2016). 13. That pursuant to Florida law, 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 s.435.07. §435.06(2)(c), Florida Statutes (2016). 14. That pursuant to Florida law, every employee must attest, subject to penalty of perjury, to meeting the requirements for qualifying for employment pursuant to this chapter and agreeing to inform the employer immediately if arrested for any of the disqualifying offenses while employed by the employer. §435.05(2), Florida Statutes (2016). 15. That pursuant to Florida law, all licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following ... The right to be free from mental and physical abuse, corporal punishment, extended involuntary seclusion, and from physical and chemical restraints, except see those restraints authorized in writing by a physician for a specified and limited period of time or as are necessitated by an emergency... §400.022(1)(0), Florida Statutes (2016). 16. That Florida law provides the following: “Each nursing home facility shall adopt, implement, and maintain written policies and procedures governing all services provided in the facility..... Each facility shall maintain policies and procedures in the following areas: (x) Resident’s rights.” Rule 59A-4.106(2) and (4)(x), Florida Administrative Code. 17. That on October 28, 2016, the Agency completed a complaint survey of Respondent and its facility. 18. | That based upon observation, the review of records and interview, Respondent failed to ensure its staff legally required to undergo criminal background screening were free from disqualifying criminal offenses, had completed required Affidavits of Compliance, or were otherwise exempted from disqualification during continued employment in violation of law, said failures placing resident’s at increased, illegal, and unnecessary risk of abuse or exploitation, the same being contrary to the requirements of law. 19. That Petitioner’s representative reviewed Respondent’s personnel records related to staff member “P” during the survey and noted as follows: a. The staff member was a certified nursing assistant. b. Absent from the record was any indication that Respondent had determined that a break in documented service in a position requiring criminal history background screening for a period in excess of ninety days did not require new criminal history background screening. 20. That Petitioner’s representative interviewed Respondent’s Human Services Director regarding staff member “P” on October 28, 2016, at 11:33 PA who indicated as follows: a. If there were a break in employment of ninety days or more by the staff member, Respondent should have obtained a new criminal history background screening for staff member “P.” b. The Florida Background Screening Clearinghouse did not show an end date under the Employment/ Contact History. c. Staff member “P” had in fact had a break of employment in a position requiring criminal history background screening and it was Respondent’s responsibility to conduct another Level II background screening on the staff member. 21. That Respondent knew or should have known that employee “P” had access to residents and their property and had not successfully completed statutory requirements related to criminal background screening as required by law. 22. That Respondent failed to obtain and maintain records of accurate criminal history screenings for its employees as mandated by law. 23. That every employee is required to obtain a new criminal history screening when the individual has not been employed in a position requiring screening for a period in excess of ninety days. 24. The Respondent’s actions or inactions constituted violations of Sections 435.12, Florida Statutes (2016) and 408.809(2), Florida Statutes (2016). 25. That Respondent has an affirmative duty to prevent persons who have not successfully undergone criminal background screening from being hired by Respondent or having access to facility residents. 26. That the above reflects Respondent’s failure to ensure that its staff had been appropriately determined as clear of disqualifying criminal backgrounds, or otherwise exempted, in violation of Florida law and or Respondent’s policy and procedure, said failures presenting a risk to resident health, safety, or well-being. 27. The Respondent’s failure to ensure that its staff meets criminal background screening requirements of law constitutes an unclassified deficient practice. 28. Under Florida law, the Agency may impose an administrative fine in a sum not to exceed five hundred dollars ($500.00) for each violation constituting an unclassified citation. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 408.813(3), Florida Statutes (2016). Respectfully submitted this 4 } day of January, 2017. J. Walsh II, Esquire Fla.‘Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) walsht@ahca.myflorida.com DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2016), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg. #3, MS #3, Tallahassee, Florida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No. 7010 0780 0001 9835 8520 Dawn Debrunner, Administrator, Manor Care Carrollwood of Tampa FL, LLC d/b/a Manorcare Health Services Carrollwood, 3030 Bearss Avenue, Tampa, Florida 33618, and by Regular U.S. Mail to C T Corporation System, Registered Agent for Manor Care Carrol}wood of Tampa FL, LLC, 1200 South Pine Island Road, Plantation, Florida , 33324, this day of January, 2017. Thomas‘J. Walsh II, Esquire Fila. Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) Copy furnished to: Patricia R. Caufman, FOM Agency for Health Care Admin. STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Manor Care Carrollwood of Tampa FL, LLC AHCA No: 2016014304 d/b/a Manorcare Health Services Carrollwood 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 must be filed within 21 days 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. 1 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, 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. 10 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 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 when 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. License Type: (ALF? Nursing Home? Medical Equipment? Other Type?) Licensee Name: License Number: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. Fax No. E-Mail (optional) Ihereby 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: Print Name: Title: SENDER: COMPL ERE a

Docket for Case No: 17-002399

Orders for Case No: 17-002399