STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2019004190 v. License No.: 5096 File No.: 11953349 FT MYERS ALF BSLC, LLC d/b/a Provider Type: Assisted Living Facility LAMPLIGHT INN Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), files this Administrative Complaint against Respondent, Ft. Myers ALF BSLC, LLC d/b/a Lamplight Inn (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes, and alleges as follows: NATURE OF THE ACTION This is an action to impose a fine of $42,000.00 on Respondent based upon: four (4) Class I violations, one (1) unclassified violation, and a survey fee. PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida. Ch. 408, Part II, and Ch. 429, Part I, Fla. Stat. (2017); Ch. 59A-35, Ch. 58A- 5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules. §§ 408.812, 408.813, 408.815, 429.14, 429.19, Fla. Stat. 2: Respondent was issued a license by the Agency to operate an assisted living facility (“the Facility”) with a capacity of one hundred and sixteen (116) beds located at 1896 Park Meadow Drive, Ft. Myers, Florida, 33907; and was at all times material required to comply with the applicable state statutes and rules. § 429.11, Fla. Stat. (2018). 3. On March 14, 2019, the Agency issued an Immediate Moratorium on Admissions against Respondent, effective immediately. At the time of the moratorium, the Facility had a census of ninety-six (96) residents. COUNT I Resident Supervision 4. Under Florida law, “the facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and service to treat the condition.” § 429.26(7), Fla. Stat., (2018). 5. Pursuant to Florida law, in pertinent part: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. (1) SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: (a) Monitoring of 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 resident. (c) Maintaining a 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 2 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. (ec) Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. Rule 58A-5.025, F.A.C., (2018). Survey Findings 6. On or about March 6 through March 8, 2019, the Agency conducted a complaint survey of Respondent’s Facility. 7. Based on observation, record review, and staff interviews, the Agency determined that Respondent’s Facility failed in the following areas: to ensure a safe environment to meet the resident's needs for two (2) residents (Resident #7 and #49) in the Memory Care unit; address violent resident behaviors until after one (1) Resident (Resident #49) was injured; to provide adequate supervision that lead to an alleged sexual assault which sent Resident #7 to the emergency room for examination; and to investigate, document, and train key staff, which allowed Resident #7 to remain with an abuser for five (5) weeks after the reported sexual assault. These systemic failures put these and other residents in imminent danger and may allow other residents to be injured in the same way. Resident #49 8. On or about March 6, 2019 the Agency reviewed a Facility incident report dated February 3, 2019. The report stated Resident #50 severely injured Resident #49, after Resident #50 pushed Resident #49 to the floor and kicked him/her multiple time in the side and torso area. Facility staff ran to intervene in the assault and told Resident #50 to stop, but the resident continued the to attack Resident #49. 9. Resident #49 was sent to the emergency room (“ER”) as a result of the assault and was found to have a closed fracture of the resident’s distal left radius (fractured wrist) 10. Later on March 6, 2019 the Agency reviewed the resident records of Resident #49 and Resident #50. Resident #49 was nearly twenty (20) years older than Resident #50, and diagnosed with dementia. Resident #50 was much larger than Resident #49. Both residents resided in Respondent’s the memory care unit. 11. Further Agency review of Resident #50’s record showed Resident #50 was admitted to the Facility with the diagnoses including Huntington's chorea (a progressive breakdown of nerve cells affecting movement, thinking, and behavior), bipolar disorder, and altered mental status. 12. The Agency then reviewed an Advanced Registered Nurse Practitioner (“ARNP”) visits notes for Resident #50, which relayed the following: a. September 10, 2018 — Resident #50 has been having aggression lately, hitting staff and other residence. Resident was sent to the ER due to violent behaviors. b. November 8, 2018 — Resident #50 was recently in the hospital due to violent outburst and aggression. Resident went to the hospital and was sent back to the Facility. No changes to medication, per the Facility. Resident #50 is having multiple issues with aggression. Today, the resident is impulsive, and has tremors. . December 3, 2018 — Resident #50 was having violent outbursts and aggression lately, the resident’s father wanted Resident #50 sent to neurology, but insurance was not accepted. . December 10, 2018 — Resident #50 has been having violent outbursts and aggression lately, consulted neurology to see patient, was apparently seen last week and the neurologist ordered Austedo (a drug to treat Huntington’s), but it was denied for coverage through insurance. The facility called (the ARNP), but (the ARNP) advised them to discuss the situation with neurology. . January 3, 2019 — Resident #50 has been having violent outburst and aggression lately; history of Huntington’s disease and is very impulsive. January 28, 2019 — Resident #50 is still having aggression at times. . February 4, 2019 — Resident #50 continues to have violent outburst and aggression. Currently facility asked me to see the resident due to Resident #50 pushing another resident and [the other resident] broke her arm. Resident #50 seems aware of what he/she has been doing and informed me today that medications are not working. (The ARNP) will discuss with a psychiatric nurse practitioner and see what the best treatment plan for Resident #50 will be. Medication changes made on February 4, 2019 was to discontinue resident Risperdal and start Resident #50 on Haldol [two antipsychotic medications]. . February 7, 2019 — Resident #50 has been on new medication for three (3) days and seems to be feeling better with no issues of pushing or harming other residents. Modified medications again today. Increase Depakote [a drug used to treat mood disorders] to five hundred milligrams (500 mg) twice a day. 13. The Agency also reviewed Resident #50’s “service notes,” which included the following notations: a. On September 5, 2018 Respondent’s memory care director was attacked by Resident #50. Resident #50 was swinging, hitting, and cussing at the director. The director tried to redirect Resident #50 three (3) times with very little effect. Local law enforcement was called to the Facility and Resident #50 was taken to hospital. b. On November 6, 2018 Resident #50 was observed attempting to hurt other residents when Facility staff held the resident back and went to get the Administrator. When Resident #50 saw the Administrator, Resident #50 got a hold of her neck. After multiple attempts to disengage the resident from the Administrator’s neck, 9-1-1 was called and Resident #50 was sent to the hospital. c. On December 24, 2018 Resident #50 had an altercation with the resident’s roommate on night shift. A room change was made. d. On February 3, 2019 Resident #50 had an altercation with physical behavior towards another resident in the afternoon. The other resident sustained a fractured arm. 14. On March 6, 2019, at approximately 8:20 am. the Agency interviewed Respondent’s employee “Staff X,” a medication tech/caregiver, about Resident #50. Staff X stated the following: a. Staff X had worked at Respondent’s Facility for three (3) weeks in the memory care unit. b. She only worked on Sundays from 2-10 p.m. c. She observed three (3) different incidents while she was on duty and she reported each but was never given an incident report to write her statement. d. On January 27, 2019 she saw a male resident push a female resident up against the wall and put his hand on her neck. The next Sunday she saw the same male resident push a woman in the hall and hurt a female resident’s arm. The femail resident had to go to the hospital and came back with her arm all bandaged up, but [Staff X] didn’t know if it was broken. e. Staff X then quit because it was too much for the employee. 15. On March 7, 2019, at approximately 8:30 am. the Agency interviewed Respondent’s employee “Staff U,” a medication tech/caregiver, about Resident #50. Staff U said she was aware of Resident #50's behaviors and knew that resident often got upset and agitated when the resident was not allowed to as much as Resident #50 wanted from the juice machine. Staff U said Resident #50 was hard to redirect when the resident was upset and mad. 16. On March 7, 2019, at approximately 8:40 am. the Agency interviewed Respondent’s employee “Staff Q,” a medication tech/caregiver, about Resident #50. Staff Q stated the following things: a. Resident #50 could become aggressive and violent when the resident did not get the resident’s way. b. One time Resident #50 chased her around the table in the dining room trying to get her because the resident was mad. She was scared and the other residents were trying to protect her. c. Staff Q was on duty the day Resident #50 pushed down and kicked Resident #49 multiple times while Resident #49 was on the floor. This was not unusual behavior for Resident #50. 17. On March 7, 2019, at approximately 8:50 am. the Agency interviewed Respondent’s employee “Staff V,” a medication tech/caregiver, about Resident #50. Staff V stated the following: She was aware of Resident #50’s aggressive behavior. Resident #50 has attacked multiple staff and other residents. Resident #50 wants to do what the resident wants to do and if you try to redirect the resident, Resident #50 becomes violent. She was on duty the day Resident #50 pushed Resident #49 and he kicked Resident #49 while Resident #49 was on the floor. 18. On March 7, 2019, at approximately 9:05 am. the Agency interviewed Respondent’s Memory Care Coordinator (“the Coordinator’) about Resident #50. The Coordinator stated the following: a. b. Resident #50 was aggressive and violent at times. She was attacked by Resident #50 herself once, and it scared her. She acknowledged Resident #50 has behaviors, the resident wants to do what the resident wants, and staff have to try to redirect Resident #50, but the resident gets mad. Resident #50 has had altercations with staff and residents, and once had to be moved because the resident got in fight with the resident’s roommate. e. She confirmed the incident when Resident #50 got aggressive with the Administrator, grabbed her around the neck, and she had to try to pull resident #50 off her. f. She reported Resident #50’s behaviors to Respondent’s Administrator, the Director of Nursing (“DON”), and the nurse every time. 19. On March 7, 2019, at approximately 2:30 p.m. the Agency interviewed Respondent’s employee “Staff L,” a licensed practical nurse (“LPN”), about Resident #50. Staff L said she was aware of Resident #50's behavior and said she was the nurse who sent Resident #49 to the hospital after the altercation with Resident #50. She said Resident #50 had a history of aggressive behavior against staff and residents. She said she was unaware of any changes in Resident #50’s medication until after Resident #49 was hurt and the resident’s arm fractured. 20. On March 7, 2019, at approximately 3:30 p.m. the Agency interviewed Respondent’s Administrator about Resident #50. The Administrator said she was aware of Resident #50’s behaviors and confirmed that in one incident the resident had grabbed her around the neck and staff had to physically remove Resident #50 from her. She said that the police were called and Resident #50 was taken to the hospital. She also acknowledged Resident #50 remained in the memory care unit after this incident and no medication changes were made after this incident. Resident #7 21. On March 6, 2018 the Agency reviewed Resident #7’s resident records. The record noted Resident #7 was a mute with a traumatic brain injury. Resident #7 resided in the Memory Care Unit along with Resident #50. Resident #7 was approximately ten years older and smaller than Resident #50. 22. Resident #7’s records contained notes from the ER that documented Resident #7 was sent to the hospital on January 3, 2019 for examination after an alleged sexual assault by bodily force by Resident #50. 23. On March 6, 2019, at approximately 8:20 p.m. the Agency interviewed Respondent’s employee “Staff X,” about Resident #50 and Resident #7. Staff X stated the following: a, She worked on January 20, 2019, where she came into a room and found two men naked in the room, one man was on his knees in front of the other man and it looked like he was going to perform oral sex on the other man. She yelled, because she did not know their names at that time, because she was just hired. Then another staff member came in and identified one of the residents as Resident #50, who she claimed was homosexual. 24. On March 6, 2019, at approximately 9:20 am. the Agency interviewed Respondent’s Memory Care Coordinator (“the Coordinator”) about Resident #50 and Resident #7. The Coordinator stated the following: a. She was made aware of a resident-to-resident interaction between Resident #7 and Resident #50 that was of the sexual nature. The Administrator told her she had gotten a call about an alleged sexual event that happened. The Facility sent Resident #7 to the ER to have the resident checked out to see if the resident’s body had any evidence of damage of a sexual nature. 10 She was unaware if any incident report was filled out regarding the incident or if it was investigated. Resident #50 remained on the memory care unit after the incident, even though the Facility staff knew Resident #50 would always follow Resident #7 around. She tried to keep an eye on Resident #50 to make sure the resident did not go after Resident #7. Resident #7 is not able to speak so the resident is unable to tell what is happening. 25. | On March 6, 2019, the Agency reviewed the Agency's Incident Reporting System (“AIRS”), which revealed as of the survey date, no AIRS report was filed with the Agency related to the assault of Resident #7. 26. On March 6, 2019, at approximately 2:35 p.m. the Agency interviewed Respondent’s employee “Staff U” about Resident #50 and Resident #7. Staff U said she had only work at the Facility for a month but she knew about Resident #50 liking Resident #7, and that Resident #50 was seen going into Resident #7’s room. 27. On March 7, 2019, at approximately 8:40 am. the Agency interviewed Respondent’s employee Staff Q about Resident #50 and resident #7. Staff Q stated the following: a. She was aware of Resident #7 going to the hospital after an incident with Resident #50. Resident #50 liked Resident #7, but this was not allowed because Resident #7 could not talk and did not want Resident #50 by him Resident #7 would push Resident #50 out of Resident #7’s room when Resident #50 tried to come in. 11 28. d. Resident #7 did not like male staff and residents in his room. Resident #7 would get upset and the resident’s hands would shake. On March 7, 2019, at approximately 8:58 am. the Agency interviewed Respondent’s employee “Staff V,” a medication tech/caregiver, about Resident #50 and resident #7. Staff V stated the following: 29. a. b. She saw Resident #50 coming out of Resident #7’s room before. She came in Resident #7's room and saw Resident #50 in Resident #7’s bed. Resident #50 told her more than once that Resident #7 was the resident’s boyfriend. She told Resident #50 that that is not true and the resident should not say Resident #7 is his boyfriend. On March 7, 2019, at approximately 8:40 am. the Agency interviewed Respondent’s Administrator about Resident #50 and Resident #7. The Administrator stated the following: There was an incident involving Resident #7 in early January. She got a phone call from the previous DON and from an employee who told her about a possible sexual incident involving Resident #7. She went to the memory care unit and told them to send Resident #7 to the ER to be checked over from head to toe to see that the resident was ok. The incident had something to do with Resident #7 being touched inappropriately by Resident #50. The previous DON told her it happened that day about two or three in the afternoon. 12 She did not have an incident report or investigation. The Administrator did not report it to the Abuse Hot Line or file a one-day adverse incident report for Resident #7 being transferred to the hospital for a possible sexual assault. She had not investigated the incident because the DON did everything. The Administrator looked through the incident reports and could not find any report or documentation. The previous DON may have taken the report with her when she left. The Administrator notified the doctor and had an order to transfer to the hospital but could not find the order. She denied knowledge of other incidents of the sexual nature between. She had not interviewed the staff in the memory care about Resident #50 stalking Resident #7 or meeting with staff about keeping the two residents apart while in the same unit. 30. On March 8, 2019, at approximately 10:15 a.m. the Agency interviewed Resident #7’s sibling and power of attorney. The sibling stated the following: a. b. The Administrator had called about an incident in the beginning of January. The Administrator told the sibling a caregiver may have touched Resident #7 inappropriately and she sent the resident to the hospital to get checked out. The Administrator said the ER reported Resident #7 was ok, and that was it. The sibling was not aware of anything else or that the assault involved another resident. She repeated the Administrator said it was a caregiver involved. 13 31. On March 8, 2019, at approximately 11:15 am. the Agency interviewed Respondent’s former director of nursing (“the prior DON”) about Resident #50 and Resident #7. The prior DON stated the following: a. She remembered in early January when she was off, the Administrator called and told her about a call that came in to the corporate office regarding an allegation of sexual misconduct between Resident #50 and Resident #7. The Administrator told her she was sending Resident #7 to the hospital to get looked over. When she got back to work, she looked at the ER report and noticed it said that it was sexual assault by bodily force by a caregiver. She brought this to the Administrator’s attention that it was wrong and it was a sexual incident between residents. She was not involved in the incident or investigation at all, the Administrator did everything and it was between the Administrator and corporate office. The Administrator told the prior DON that corporate told her what to do about the situation. 32; In a second interview with the Administrator on March 8, 2019 at 12:45 p.m., the Administrator stated that she had forgotten that she had done the incident report after the incident between Resident #50 and #7. She said she found the incident report in a box of papers in the DON’s office. The Administrator now said she was informed of the incident by the prior DON who called her and told her she had received an anonymous call about it. 33. Resident #7 remained on the memory care unit with Resident #50, Resident #7’s abuser for five (5) weeks after the reported alleged sexual assault. 14 34. | The Agency found no evidence of staff training or interventions to ensure Resident #7’s safety, or for interventions with Resident #50. 35. Based on the actions and inactions, the Agency cited Respondent with a Class I violation. Requested Remedy 36. | Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2018). 37. Under Florida law, as a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. § 408.813, Fla. Stat. (2018). 38. | Under Florida law, in addition 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 any person subject to level 2 background screening under section 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.19(1), Fla. Stat. (2018). 39. Under Florida law, in pertinent part, class I 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 present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2018). 15 40. | Under Florida law, 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: (a) Class “I” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2)(a), Fla. Stat., (2018). WHEREFORE, Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $10,000.00 against Respondent. COUNT I Resident Rights 41. Under Florida law, in pertinent part: (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. * * * (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. * * * 16 (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 either advocacy or special interest groups. § 429.28(1), Fla. Stat., (2018). 42. Under Florida law, in pertinent part: 58A-5.0182 Resident Care Standards. An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. * * * (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S., or a summary provided by the Long-Term Care Ombudsman Program must 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 must have a written grievance 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. * * * (f) The facility must 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 must allow 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 must be, at a minimum, a readily accessible telephone on each floor of each building where residents reside. (g) In addition to the requirements of Section 429.41(1)(k), F.S., the use of physical restraints by a facility must be reviewed by the resident 's physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint Rule 58A-5.0182(6), F.A.C., (2018). Survey Findings 43. The Agency re-alleges, and incorporates by reference, all the facts in Count I of this complaint. 44. On or about March 6 through March 8, 2019, the Agency conducted a complaint survey of Respondent’s Facility. 45. Based on record review, and resident and staff interview, the Agency determined that Respondent’s Facility failed to provide the following: adequate and appropriate health care for two (2) residents (Resident #37 and #16) reviewed for anti-seizure medications; The facility protection of two (2) residents (Resident #15 and #51) from potential exposure to blood borne pathogens when assisting with obtaining blood samples observed for diabetic assistance; protection from assaults for two (2) residents (Resident #49 and #7); protection of two (2) residents (Residents #44 and #46) from restrictions to a secured unit without assessment or documentation of legal authority for the residents; and assistance to one (1) resident (Resident #44) when the resident’s glasses were lost. These failures to implement systemic approaches to ensure a safe environment places all residents in imminent danger of neglect or loss of personal rights. Resident #37 46. On March 6, 2019 at approximately 9:35 a.m., the Agency interviewed Resident #37. The Resident stated the following: a. On January 7, 2019 Resident #37 had a grand mal seizure (a seizure that causes a loss of consciousness and violent muscle contractions) in the bathroom. b. Resident #37 was on the floor "for hours" before someone found the resident. c. Resident #37 said the hospital increased medications for the resident because they wanted Resident #37’s “blood level” up. 18 47. Resident #37 had no issues with grand mal seizure before on previous dose levels. The Facility was out of the resident’s medication for three (3) to four (4) days before January 7, 2019 and that was reason the resident had a seizure. The resident kept asking Facility staff every morning if they had gotten the resident’s medication in yet. On March 6, 2019 the Agency reviewed Resident #37’s resident record. The record revealed the following: 48. a. b. Resident #37 had a diagnosis of epilepsy and recurrent seizures. A physician’s order dated April 17, 2018 4for Keppra (an anti-seizure medication) at five hundred milligrams (500 mg) twice a day. The resident’s Medication Observation Record (“MOR”) for January 2019 indicated Resident #37 did not receive the 8:00 a.m. dose of Keppra on January 3, 2019. The MOR was circled as not being given. The 4 p.m. dose for January 3, 2019 was initialed as given. Both doses for January 4, 5, and 6, 2019 were circled as not given on Resident #37°s MOR. In total, seven (7) missed doses of the Keppra were listed on the MOR. A nursing note dated January 7, 2019 at 8:30 a.m. indicated Resident #37 was observed on the bathroom floor with seizures, multiple ones in five (5) minutes. 9-1-1 was called and while emergency medical services was there resident #37 had two (2) more seizures. Resident #37 was transported to the hospital. The Agency then reviewed Resident #37’s hospital records revealed the following: 19 h. ‘i Resident #37 was admitted on January 7, 2019 for seizures, was nonverbal, arousable to painful stimuli, and had a hematoma (a solid swelling of clotted blood) on the right forehead. After admission, the physician was notified the resident began actively seizing and Keppra was administered intravenously (into the vein). The physician noted critical care was required due to the high probability of sudden, clinically significant deterioration in the patient's condition and required the highest level of preparedness to intervene urgently. Services provided were to treat and clinically prevent significant deterioration that could result in seizure. The final admitting diagnosis was fall with traumatic hematoma of head, altered mental status, and seizure. Resident #37 was intubated (tube inserted into airway for placement on a ventilator) and admitted to Intensive Care Unit (“ICU”). While in ICU, Resident #37 was started on a tube feeding and treated with antibiotics for possible aspiration pneumonia. The resident’s symptoms improved and the breathing tube was removed. On January 21, 2019, Resident #37 was discharged to a skilled nursing facility. 49. _ Resident #37's record showed the Resident returned to Respondent’s facility more than a month later on February 13, 2019. 50. | On March 6, 2019 at approximately 1:20 p.m., the Agency interviewed a Pharmacy Technician about Resident #37. The Pharmacy Tech stated the following: 20 Resident #37's family member called the pharmacy and was upset saying the pharmacy let Resident #37 run out of seizure medication. The Pharmacy Tech told the family member the pharmacy sent a thirty (30) day supply, the resident should have had plenty of anti-seizure medication. The pharmacy was never notified Resident #37 ran out of medication. The pharmacy would have sent medications to cover Resident #37 until the next thirty (30) day supply. The Pharmacy Tech sent run sheets to Resident #37’s family-member to prove the Facility should have had plenty of medication on hand. 51. The Agency then reviewed the pharmacy’s delivery logs. The logs verified sufficient supply of Resident #37’s medication had been provided by the pharmacy well in advance of when the resident would have run out of the seizure medication. Sixty (60) tabs of Keppra were delivered on December 14, 2018. Resident #37 was due to run out on December 26, 2018 and had enough medication to last until January 24, 2019. The pharmacy delivery receipt was signed by previous Respondent’s Director of Nursing (“DON”). 52. On March 6, 2019 at approximately 2:35 p.m., the Agency interviewed a Respondent’s employee “Staff L,” a licensed practical nurse (“LPN”) about Resident #37. Staff L stated the following: a. She was called to Resident #37’s room by other staff on the morning of January 7, 2019 and saw the resident laying on the floor. Staff L told staff not to touch Resident #37 and called 9-1-1. The resident’s family member called right after the incident and said the resident’s Keppra had not been given, which caused the resident’s seizure. 21 The pharmacy was good about bringing medication right away and usually sent a thirty (30) day supply. Facility staff never made her aware of the Keppra not being available to give to the Resident #37. 53. On March 7, 2019 at approximately 10:30 a.m., the Agency interviewed a Respondent’s employee “Staff M,” a medication tech about Resident #37. Staff M stated the following: On the morning of January 3, 2019 Resident #37 was out of the seizure medication Keppra. The medication was not available and she circled the MOR as not being given. She told the nurse and also the previous DON about Resident #37’s seizure medicine being out. She mentioned it more than once as she was concerned over this as Resident #37 needed the medication. 54. On March 7, 2019 at approximately 10:49 am., the Agency interviewed a Respondent’s Advanced Registered Nurse Practitioner (“ARNP”) about Resident #37. The ARNP stated the following: a. He was the clinician for Resident #37 and was not aware the resident had been without Keppra for several days prior having a grand mal seizure. Resident #37 was very aware of his/her medications and would be able to say if the resident got them or not. Resident #37 has a low threshold for seizures and without the medication, the resident could have an intractable seizure which may lead to death. 22 After twenty-four (24) hours eighty-seven percent (87%) of the medication would be out of the resident system, which is why he orders it to be given twice a day. The ARNP confirmed he was never contacted by facility staff to alert him of the resident being without the anti-seizure medication Resident #16 55. On March 6, 2019 the Agency reviewed Resident #16’s medical records. The review revealed the following: a. On January 13, 2019 Resident #16 was observed with seizure activity and 9-1- 1 was called. Resident #16 was admitted to the hospital and did not return until January 15, 2019. On January 21, 2019 at approximately 7:00 p.m., Resident #16 was again observed with seizures, 9-1-1 was called and the resident was transported to the hospital. On January 25, 2019 Resident #16 returned to Respondent’s Facility with an order to decrease the Gabapentin (an anti-seizure medication) from eight hundred milligrams (800 mg) to six hundred milligrams (600 mg ) three (3) times a day for seizure and a new order for Vimpat (another anti-seizure medication) fifty milligrams (50) mg twice daily for seizures. Resident #16’s MOR for January 2019 showed the Vimpat was circled as not given; and the Facility continued to give Gabapentin 800 mg and not the 600 mg that was ordered. 23 56. On March 6, 2019 at approximately 11:30 am., the Agency interviewed the providing Pharmacist for Resident #16’s medications. The Pharmacist stated the following: a, b. On January 25, 2019 new orders were received for Resident #16. The Gabapentin was decreased to 600 mg and a thirty (30) day supply of the new dosage was sent to Respondent’s facility. A new order for Vimpat was also received and on January 29, 2019, and the Facility and the Physician were notified of the need for pre-authorization to pay for the Vimpat. The Pharmacist has never heard anything back from Facility or the Physician on this pre-authorization. 57. The Agency then reviewed Resident #16’s hospital records. The record review revealed the following: a. b. Resident #16 was admitted to the hospital on January 31, 2019. Resident #16 presents to the emergency department reporting status post two witnessed seizures. Per staff, Resident #16 had a seizure at lunch and another immediately prior to arrival. EMS was called, as the duration of the seizure was longer than usual. Resident #16 was discharged back to the facility on February 2, 2019. Discharge instructions included to stop Vimpat, take Gabapentin 600 mg three (3) times daily, and start Tegretol (carbamazene) two hundred milligrams (200 mg) three (3) times daily. 58. Resident #16’s MOR for February 2019 showed the Vimpat was circled as not given, and they continued to give Gabapentin 800 mg, and not the 600 mg that was ordered. 24 59. Resident #16’s MOR for March 2019 indicated the corrected Gabapentin 600 mg dose, but no indication that Resident #16 received the noon dose on March 3 and 4, 2019. 60. On March 4, 2019, the Gabapentin was rewritten for 800 mg three (3) times a day and a dose was given at 5:00 p.m. 61. On March 6, 2019 at approximately 8:36 a.m., the Agency interviewed Resident #16. Resident #16 stated the resident had concerns with not getting the prescribed seizure medication and missed two (2) doses over the weekend. Resident #16 did not want to go to the hospital again and told the Administrator about the medications on March 4, 2019. 62. On March 7, 2019 at approximately 2:30 p.m., the Agency interviewed Respondent’s Director of Nursing (“DON”) about Resident #16. The DON stated the following: a. She was approached by a med tech on March 4, 2019 about Resident #16’s MOR indicating Gabapentin 600 mg but the medication label was for 800 mg. b. She changed the MOR but was unable to locate a physician’s order for the dose being changed back to 800 mg. c. She did not contact the pharmacy or Resident #16's physician for clarification. 63. In a later interview with the DON at approximately 2:30 p.m., the DON said Resident #16 reported on March 4, 2019, that the resident had not been getting the prescribed anti- seizure medication on time. The DON said she was unaware of the missed doses on March 3 and 4, 2019. Infection Control 64. On March 7, 2019 at approximately 4:20 p.m., the Agency observed Respondent’s employee Med Tech “Staff Y” prepared to perform blood glucose monitoring for Resident #51. 25 65. Staff Y took the glucometer from the medication cart and placed a test strip into the machine. She took the lancing device, removed the end cap, placed a new lancet into the device, and replaced the end cap. She donned gloves, cleaned the resident's finger, and lanced it. She completed the process to wick a drop of blood on to the test strip in the glucometer and placed it back on her medication cart. She informed the resident of the results. She removed the test strip from the glucometer, removed the end cap and lancet from the lancing device, and disposed of the test strip and used lancet in the sharps container. 66. Staff Y did not disinfect the glucometer after use. 67. Continued Agency surveyor observation at approximately 4:30 p.m. revealed Resident #15 came to the medication room right after the previous resident. Med Tech Staff Y again prepared to perform blood glucose monitoring for Resident #15. Staff Y took the lancing device, placed a new lancet into the device, and placed the same used end cap on the device. She took the same glucometer (that had not been cleaned or sanitized) from the medication cart and placed a test strip into the machine. She donned gloves, cleaned the resident's finger, placed the lancing device against the finger and lanced it. She completed the process to wick a drop of blood on to the test strip in the glucometer and placed it back on her medication cart. She informed the resident of the results. 68. Again, Staff Y did not disinfect the glucometer after this use. 69. On March 7, 2019 at approximately 4:38 p.m., the agency interviewed Staff Y about the glucose testing. Staff Y stated she used the same lancing device for the all the residents who have blood sugar monitoring. She said that they just change the lancet inside. She was unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. 26 70. On March 7, 2019 at approximately 4:40 p.m., the agency interviewed Staff L, an LPN, about the glucose testing. Staff L said she unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. 71. On March 7, 2019 at approximately at 4:41 p.m., the Agency interviewed the DON about the glucose testing. The Don said she was unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. Residents #44 and #46 72. On March 8, 2019 at approximately 1:45 p.m., the Agency interviewed Resident #44. Resident #44 stated the following: a. The resident is locked in the memory care unit and has not been off the unit, even for activities, since the resident was placed in the unit. b. The resident was moved to the unit because she was behaving badly. c. Resident #44 would like to come off the unit sometimes and join the friends the resident has for activities, but is not allowed out. d. Resident #44 told the facility staff where the resident wanted to go (down the block to a bar/restaurant) but was told the facility staff felt the resident could not get there safely. 73. The Agency then reviewed Resident #44’s record. The review revealed the following: a. Resident #44 was relocated to the Memory Care unit on July 24, 2018 after the resident left the facility and wanted to visit with friends. b. Resident #44 was brought back to the facility and placed on the unit at 6:15 p.m. 27 74, Cc. Resident #44 signed him/herself into the facility on September 6, 2016. d. Resident #44 has no signed advance directives, power of attorney, or health care surrogate. The resident had no documentation of incapacity. On March 8, 2019 at approximately 2:39 am., the Agency interviewed Respondent’s Administrator about Resident #44. The Administrator stated the following: 75. following: 76. a. The Memory Care residents do get to come off the unit for special activities several times a week. Resident #44’s adult child lives in Japan, and they contact the child if they need permission for anything regarding Resident #44. The advanced directives for Resident #44 were in the record. After looking at Resident #44’s record, she said she did not realize the papers in the record had never been signed by the resident and were therefore not valid. The Agency then reviewed Resident #46’s record. The review revealed the Resident #46 was admitted to the Memory Care unit on January 4, 2019. Resident #46 was signed in by the resident’s spouse. . Resident #46 had diagnoses including major depressive disorder, generalized anxiety disorder, and dementia with behavioral disturbance. The record did not contain power of attorney, guardianship, or healthcare surrogate paperwork providing the right of placement to Resident #46’s spouse. On March 8, 2019 at approximately 2:39 p.m. the Agency interviewed Respondent’s Administrator about Resident #46. The Administrator stated she though the paperwork for Resident #46's guardianship was in the record. She said she knew the spouse had 28 gone to court to be able to provide for Resident #46. The Administrator reviewed the record, but did not find any guardianship or directive paperwork for Resident #46. 77. On March 8, 2019 at approximately 1:45 p.m. the Agency interviewed Resident #44. Resident #44 stated the following: 78. a. Resident # 44 lost his/her glasses. b. Resident #44 thought the glasses were nearby, but could not find them. The resident has looked everywhere. Because the resident is in a locked unit someone is going to have to help the resident get new glasses. During the interview the resident was observed wearing a pair glasses with tiger stripe pattern frames. Resident #44 said this is a pair someone gave the resident that are close to the resident’s prescription, but are not the resident’s own glasses. On March 8, 2019 at approximately 2:23 p.m. the Agency interviewed Respondent’s employee “Staff N,” a medication tech about Resident #44. Staff N stated the following: Resident #44 never gives her an problem. Resident #44 is usually in the resident’s room or out in the common area. Whatever you ask Resident #44 to do, the resident will do it. She asked the resident on Tuesday night about the resident’s glasses, but could not find them. Resident #44’s glasses have red frames. 29 f. Resident #44 thought he/she put them in a shoe, but they were not in the resident’s shoes, dresser drawers, etc. Staff N could not find them. 79. On March 8, 2019 at approximately 1:50 p.m. the Agency interviewed Respondent’s Administrator about Resident #44’s glasses. The interview went as follows: a. The Administrator immediately stated Resident #44 is wearing glasses. b. When told those were not Resident #44’s glasses, the Administrator said they were, that Resident #44 was confused. c. The Administrator pulled the record of Resident #44 and the photo within was not showing glasses. d. A look in the receptionist book found a picture of the resident wearing the red glasses. e. The Administrator acknowledged the red glasses in the photo. f. The Administrator dismissed the resident's concern about her glasses without investigating the lost or assisting to make an appointment for new glasses. 80. | Based on the actions and inactions listed above, the Agency properly cited Respondent with a Class | violation. Requested Remedy 81. | Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2018). 82. Under Florida law, as a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. § 408.813, Fla. Stat. (2018). 83. | Under Florida law, in addition 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 30 of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under section 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.19(1), Fla. Stat. (2018). 84. | Under Florida law, in pertinent part, class I 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 present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2018). 85. | Under Florida law, 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: (a) Class “TI” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2){a), Fla. Stat., (2018). WHEREFORE, Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $10,000.00 against Respondent. COUNT Ill Assistance with Self-Administration of Medication 86. Under Florida law, (3) Assistance with self-administration of medication includes: 31 (a) Taking the medication, in its previously dispensed, properly labeled container, including an insulin syringe that is prefilled with the proper dosage by a pharmacist and an insulin pen that is prefilled by the manufacturer, from where it is stored, and bringing it to the resident. (b) In the presence of the resident, reading the label, opening the container, removing a prescribed amount of medication from the container, and closing the container. (c) Placing an oral dosage in the resident’s hand or placing the dosage in another container and helping the resident by lifting the container to his or her mouth. (d) Applying topical medications. (e) Returning the medication container to proper storage. (f) Keeping a record of when a resident receives assistance with self-administration under this section. (g) Assisting with the use of a nebulizer, including removing the cap of a nebulizer, opening the unit dose of nebulizer solution, and pouring the prescribed premeasured dose of medication into the dispensing cup of the nebulizer. (h) Using a glucometer to perform blood-glucose level checks. (i) Assisting with putting on and taking off antiembolism stockings. G) Assisting with applying and removing an oxygen cannula but not with titrating the prescribed oxygen settings. (k) Assisting with the use of a continuous positive airway pressure device but not with titrating the prescribed setting of the device. ()) Assisting with measuring vital signs. (m) Assisting with colostomy bags. § 429.256(3), Fla. Stat., (2018). 87. Pursuant to Florida law, 58A-5.0185 Medication Practices. Pursuant to sections 429.255 and 429.256, F.S., and this rule, licensed facilities may assist with the self-administration or administration of medications to residents in a facility. A resident may not be compelled to take medications but may be counseled in accordance with this rule. ... (3) ASSISTANCE WITH SELF-ADMINISTRATION. (a) Any unlicensed person providing assistance with self- administration of medication must be 18 years of age or older, trained to assist with self administered medication pursuant to the training requirements of rule 58A-5.0191, F.A.C., and must be available to assist residents with self-administered medications in 32 accordance with procedures described in section 429.256, F.S. and this rule. (b) In addition to the specifications of section 429.256(3), F.S., assistance with self-administration of medication includes, in the presence of the resident, reading the medication label aloud and verbally prompting a resident to take medications as prescribed. (c) In order to facilitate assistance with self-administration, trained staff may prepare and make available such items as water, juice, cups, and spoons. Trained staff may also return unused doses to the medication container. Medication, which appears to have been contaminated, must not be returned to the container. (d) Trained staff must observe the resident take the medication. Any concerns about the resident’s reaction to the medication or suspected noncompliance must be reported to the resident’s health care provider and documented in the resident’s record. (e) When a resident who receives assistance with medication is away from the facility and from facility staff, the following options are available to enable the resident to take medication as prescribed: 1. The health care provider may prescribe a medication schedule that coincides with the resident’s presence in the facility, 2. The medication container may be given to the resident, a friend, or family member upon leaving the facility, with this fact noted in the resident’s medication record, 3. The medication may be transferred to a pill organizer pursuant to the requirements of subsection (2), and given to the resident, a friend, or family member upon leaving the facility, with this fact noted in the resident’s medication record, or 4. Medications may be separately prescribed and dispensed in an easier to use form, such as unit dose packaging. (f) Assistance with self-administration of medication does not include the activities detailed in section 429.256(4), F.S. 1. As used in section 429.256(4)(g), F.S., the term “competent resident” means that the resident is cognizant of when a medication is required and understands the purpose for taking the medication. 2. As used in section 429.256(4)(h), F.S., the terms “judgment” and “discretion” mean interpreting vital signs and evaluating or assessing a resident’s condition. (g) All trained staff must adhere to the facility’s infection control policy and procedures when assisting with the self-administration of medication. Rule 58A-5.0185(3), F.A.C., (2018). 33 Survey Findings 88. The Agency re-alleges, and incorporates by reference, all the facts in Count II of this complaint 89. On or about March 6 through 8, 2019, the Agency conducted a complaint survey of Respondent’s Facility. 90. Based upon observation and interview, the Agency determined that Respondent’s facility failed to provide safe and sanitary assistance with self-administration of medication for two (2) residents (Resident #51 and #15) observed for blood sugar monitoring and insulin. The facility put the resident at risk for infection by the use of finger-stick devices for more than one person and not disinfecting blood glucose monitoring devices (glucometers). These systemic failures put resident at risk for exposure to blood borne pathogens such as hepatitis B virus (HBV). 91. On March 7, 2019, at approximately 4:20 p.m. the Agency observed Respondent’s employee Med Tech “Staff Y” prepare to perform blood glucose monitoring for Resident #51. 92. The Agency observed the following: a. Staff Y took the glucometer from the medication cart and placed a test strip into the machine. b. She took the lancing device, removed the end cap, placed a new lancet into the device, and replaced the end cap. c. She donned gloves, cleaned the Resident #51’s finger, and lanced it. d. She completed the process to wick a drop of blood on to the test strip in the glucometer and placed it back on her medication cart. e. The glucometer indicated a blood glucose reading of one hundred eighteen (118) and Staff Y informed Resident #51 of the results. 34 f. She removed the test strip from the glucometer, removed the end cap and lancet from the lancing device, and disposed of the test strip and used lancet in the sharps container. g. Staff Y removed the resident’s Novolog insulin pen from the med cart and dialed the pen to ten (10) units. h. She then stated the Resident #51 gets (10) units and showed the pen was dialed to ten (10) units. i. Staff Y handed the pen to the resident and Resident #51 injected it into the resident’s lower abdomen. j. Staff Y then placed the insulin pen back into the cart and the resident left. k. At the time of administration, the medication observation record (“MOR”) for Resident #51 was not on the med cart. 1. Staff Y did not look at the MOR. The MOR remained closed on the counter. m. The glucometer was not disinfected after use. 93. Agency review of the insulin order for Resident #5 1's (on the MOR and prescription on the bag) directed the resident to have thirteen (13) units of insulin. Resident #51 received three (3) units less than ordered. The package also noted the insulin pen's expiration date of February 7, 2019. 94. On March 7, 2019, at approximately 4:30 p.m. the Agency observed Respondent’s employee Med Tech “Staff Y” prepare to perform blood glucose monitoring for Resident #15. 95. The observations included: a. Resident #15 came to the medication room right after the previous resident. 35 Med Tech Staff Y again prepared to preform blood glucose monitoring for Resident #15. Staff Y took the lancing device, placed a new lancet into the device, and placed the same used end cap on the device. She took the same glucometer (that had not been cleaned or sanitized) from the medication cart and placed a test strip into the machine. She donned gloves, cleaned the resident's finger, placed the lancing device against the finger and lanced it. She completed the process to wick a drop of blood on to the test strip in the glucometer and placed it back on her medication cart. The glucometer indicated a blood glucose reading of two hundred seventy-four (274) and she informed Resident #15. Staff Y said Resident #15 would be getting four (4) units of Novolog insulin. She proceeded to dial Resident #15's insulin pen up to four (4) units and handed it to the resident. Resident #15 injected the pen into the resident’s leg and handed the pen back to Staff Y. 96. On March 7, 2019 at approximately 4:38 p.m. the Agency interviewed Staff Y about the glucose testing. Staff Y explained the flowing: a. She used the same lancing device for the all the residents who have blood sugar monitoring. She said that they just change the lancet inside. She was unaware unlicensed staff should not do blood sugars testing or dial insulin pens. 36 d. She was unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. e. She acknowledged she set the wrong amount of insulin for Resident #51 and realized she did not check the order on the resident’s MOR. 97. | On March 7, 2019 at approximately 4:40 p.m. the Agency interviewed Staff L, an LPN, about the glucose testing. Staff L stated the following: 98. She was not aware unlicensed staff should not do blood sugars testing or dial insulin pens. 99. The lead med techs on day and evening shifts have been doing the insulin and glucose monitoring for a few days now. The pharmacy had taught them how to do the testing. 100. Staff Lis the one who signs off on the blood sugars and insulin in the MOR. 101. The med techs write the blood sugar results on a piece of paper for her. 102. She was unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. 103. On March 7, 2019 at approximately 4:41 p.m. the Agency interviewed Respondent’s DON about the glucose testing. The DON also said she was not aware unlicensed staff should not do blood sugars testing or dial insulin pens. She was unaware the glucometer must be disinfected between residents and an end cap should not be used for more than one resident. 104. On March 7, 2019 at approximately 5:10 p.m. the Agency interviewed the Administrator about the glucose testing. The Administrator said she was unaware unlicensed staff should not do blood sugars testing or dial insulin pens. She said the state should send an e-mail or update when they decide not to do something. She said the pharmacy has been teaching the med techs how to do it so they must not be aware either. 37 105. Accordingly, based upon the foregoing facts, the Agency properly cited Respondent with a Class I violation. Requested Remedy 106. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2018). 107. Under Florida law, as a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. § 408.813, Fla. Stat. (2018). 108. Under Florida law, in addition 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 any person subject to level 2 background screening under section 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.19(1), Fla. Stat. (2018). 109. Under Florida law, in pertinent part, class I 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 present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2018). 110. Under Florida law, 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. 38 The agency shall indicate the classification on the written notice of the violation as follows: (a) Class “I” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2)(a), Fla. Stat., (2018). WHEREFORE, Petitioner, State of Florida, Agency for Health Care Administration seeks to impose an administrative fine of $10,000.00 against Respondent. COUNT IV Medication Labeling and Orders 111. Under Florida law, (7) MEDICATION LABELING AND ORDERS. * * * (f) The facility must make every reasonable effort to ensure that prescriptions for residents who receive assistance with self- administration of medication or medication administration are filled or refilled in a timely manner Rule 58A-5.0185(7)(f), F.A.C., (2018). Survey Findings 112. The Agency re-alleges and incorporates by reference the allegations contained in Count IT and Count II] of this complaint. 113. On or about March 6 through 8, 2019, the Agency conducted a complaint survey of Respondent’s Facility. 114. Based on record review, resident and staff interview, the Agency determined facility failed to ensure residents received medications and refills as ordered for three (3) residents (Resident #37, #16, and #41). Resident #37 did not receive anti-seizure medication as ordered for four (4) days resulting in the resident having a grand mal seizure requiring extended hospitalization. The Facility failed to ensure Resident #16 received anti-seizure medications as 39 ordered and resulted in a hospitalization. The facility failed to ensure Resident #41 received a pain patch as ordered. These failures to implement systemic approaches to ensure appropriate medication places residents in imminent danger to their health. 115. On March 6, 2019 at approximately 2:41 p.m. the Agency interviewed Resident #41. Resident #41 stated the following: 116. following: a. b. Before coming to the facility the resident was on a Lidocaine patch for pain. Resident #41 had found this was effective in controlling the upper back pain and arrived with a supply from the prior facility. When the resident’s supply ran out, the facility did not re-fill the patch for Resident #41. When the resident is having too much pain, the resident has to lie down or ask for a pain medication. The patches help Resident #41’s pain and the oral pain medication makes the resident sick so he/she doesn't want to take it. The Agency then reviewed Resident #41’s medical records. The records reveal the An order dated November 26, 2018 for Lidocaine patch daily for pain. The MOR indicated Resident #41 ran out of the pain patch supply on December 18, 2018. On January 25, 2019, the resident’s Pharmacy notified facility and physician of need for pre-authorization on the Lidocaine patches. The MORs for Resident #41 showed the Lidocaine patch as not being available nearly two (2) months, from December 18, 2019 until February 11, 2019. 40 117. On March 7, 2019 at approximately 10:30 am., the Agency interviewed Respondent’s employee “Staff M,” a Med Tech. Staff M stated the following: a. Resident #41 had Lidocaine patches when first admitted and when the resident ran out, the facility never got any from the pharmacy. b. The resident kept asking about them and the resident would let the nurse know. c. She told the nurses and DON about the patches not being available. d. Resident #41 doesn't like the pain meds that were ordered for the resident and wants the patch as the resident says it relieves his/her back pain. 118. Accordingly, based upon the foregoing facts, the Agency properly cited Respondent with a Class I violation. Requested Remedy 119. Under Florida law, the Respondent as the licensee is legally responsible for all aspects of the provider operation. § 408.803(9), Fla. Stat. (2018). 120. Under Florida law, as a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. § 408.813, Fla. Stat. (2018). 121. Under Florida law, in addition 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 any person subject to level 2 background screening under section 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. § 429.19(1), Fla. Stat. (2018). 122. Under Florida law, in pertinent part, class I violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which 41 the agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. § 408.813(2)(a), Fla. Stat. (2018). 123. Under Florida law, 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: (a) Class “I” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class I violation in an amount not less than $5,000 and not exceeding $10,000 for each violation. § 429.19(2){a), Fla. Stat., (2018). WHEREFORE, Petitioner, State of Florida, Agency for Health Care Administration seeks to impose an administrative fine of $10,000.00 against Respondent. COUNT V Background Screening 124. Under Florida law, in pertinent part: (1) 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, or contracting with a licensee or provider to work 20 hours a week or more who will have access to client funds, personal property, or living areas. 42 Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1)(c), Fla. Stat., (2018). 125. Under Florida law, in pertinent part: (2) 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 unless the person’s fingerprints are enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically 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 shall be retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. 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 a specified agency is fully implemented in the clearinghouse created under s. 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 Families, 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: ...(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 § 408.809(2)(b), Fla. Stat. (2018). 43 Survey Findings 126. On or about March 6 through 8, 2019, the Agency completed a complaint survey of Respondent’s facility. 127. Based on record review and interview, the Agency determined that Respondent’s Facility failed to ensure staff who had a break in service of ninety (90) days or more completed a new background screening prior to beginning or returning to work for three (3) employees. (Administrator, Staff D, and Staff S). 128. Onor about March 8, 2019 the Agency reviewed the Respondent’s Administrator’s personnel record, which revealed a background screening dated April 22, 2015. 129. The record showed a break in employment from December 7, 2017 until March 23, 2018, a period greater than ninety (90) days. 130. No evidence of a level 2 background re-screening was present for the Administrator. 131. The Agency then reviewed the personnel record of Respondent’s employee Med Tech “Staff D.” The review revealed a background screening dated June 16, 2016. 132. The record also showed a break in service for Staff D from September 3, 2016 until September 11, 2018, a period greater than ninety (90) days. 133. No evidence of a level 2 background re-screening was present for Staff D. 134. The Agency finally reviewed the personnel record of Respondent’s employee “Staff S,” a resident aide. Staff S's personnel record revealed a break in service from June 8, 2018 to January 23, 2019, while Staff S had private sector jobs. 135. No evidence of a level 2 background re-screening was present for Staff S. 136. On March 8, 2019 at approximately 12:45 p.m. the Agency interviewed the Respondent’s Administrator about the background screening. The Administrator acknowledged her break in service. 137. On March 8, 2019 at approximately 1:45 p.m. the Agency interviewed the Respondent’s Business Manager, “Staff C” about the background screenings. Staff C said all personnel information was filed in the charts. 138. The Agency then observed a hand full of un-filed information that was presented and filed in the charts that were being reviewed by the Agency surveyors. 139. Additional background screenings for the Administrator, Staff D, or Staff S was not found or presented to the Agency. 140. All three (3) employees had responsibilities that 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. 141. Respondent failed to maintain accurate employment records and eligible level 2 background screenings as mandated by law. Requested Remedy 142. Under Florida law, 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 Part I or Chapter 429, 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 Section 408.809, Florida Statutes, or for the actions of any facility employee: . . 45 Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2018). 143. Under Florida law, regardless of the class of violation cited, instead of the fine amounts listed in paragraphs (a)-(d), the agency shall impose an administrative fine of $500 if a facility is found not to be in compliance with the background screening requirements as provided in s. 408.809. § 429.19(2)(e), Fla. Stat. (2018). 144, Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class 1, class I, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2018). 145. Respondent had three (3) separate incidents of failing to maintain accurate and eligible background screenings for its employees. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of one thousand five hundred dollars ($1,500.00) against the Respondent. COUNT VI Revocation 146. Under Florida law, in pertinent part: (1) 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, any person subject to level 2 background screening under s. 408.809, or any facility staff: (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. 46 * * * (e) A citation for any of the following violations as specified in s. 429.19: 1. One or more cited class | violations. ... (f) Failure to comply with the background screening standards of this part, s. 408.809(1), or chapter 435. § 429.14(1)(a), (e)1, & (f), Fla. Stat., (2018). 147. Under Florida law, 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 rules. § 408.815(1)(b) & (c), Fla. Stat. (2018). 148. The Agency re-alleges and incorporates by reference all of the facts listed in Count I, Count II, Count III, Count IV, and Count V of this complaint. 149. From March 6 through March 8, 2019 the Agency conducted a complaint survey of Respondent’s Facility. The Agency properly cited Respondent with an unclassified violation for a failure to comply with background screening clearinghouse requirements, with three separate instances of the same type of deficient practice. 150. From March 6 through March 8, 2019 the Agency conducted a complaint survey of Respondent’s Facility. The Agency properly cited Respondent with four (4) Class I violations during this visit. 151. The Agency properly cited Respondent with multiple intentional or negligent acts materially affecting the health or safety of a client of the provider. 152. The Agency properly cited Respondent with multiple violations of the authorizing statutes and applicable rules. 47 153. Separately and collectively, these above-mentioned cited violations meet the requirements delineated by the Florida legislature to revoke Respondent’s license to operate an assisted living facility. WHEREFORE, Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke Respondent’s license to operate an assisted living facility. COUNT Vil Survey Fee 154. The Agency re-alleges and incorporates by reference Counts I, II, III, IV, and V of this complaint. 155. Pursuant to Florida law, in addition 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 Section 400.428(3)(c), Florida Statutes, to verify the correction of the violations. § 429,19(10), Fla. Stat. (2017). 156. The Agency received a complaint or complaints about Respondent’s Facility. 157. In response to the complaint or complaints, the Agency conducted a complaint survey of Respondent’s Facility from March 6 until March 8, 2019. 158. The Agency found violations that were the subject of the complaint or complaints while conducting the survey. 159. The Agency is entitled to a survey fee under Florida statutory authority. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks a survey fee of $500.00 against the Respondent. 48 CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to enter a final order that: 1. Renders findings of fact and conclusions of law as set forth above. 2. Grants the relief set forth above. Florida Bar No. 0104832 Agency for Health Care Administratio: 525 Mirror Lake Drive N., Suite 330 St. Petersburg, Florida 33701 Telephone: 727-552-1942 Facsimile: 727-552-1440 andrew.thornquest@ahca.myflorida.com 49 NOTICE OF RIGHTS Pursuant to Section 120.569, F.S., any party has the right to request an administrative hearing by filing a request with the Agency Clerk. In order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), F.S., however, a party must file a request for an administrative hearing that complies with the requirements of Rule 28- 106.2015, Florida Administrative Code. Specific options for administrative action are set out in the attached Election of Rights form. The Election of Rights form or request for hearing must be filed with the Agency Clerk for the Agency for Health Care Administration within 21 days of the day the Administrative Complaint was received. If the Election of Rights form or request for hearing is not timely received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a hearing will be waived. A copy of the Election of Rights form or request for hearing must also be sent to the attorney who issued the Administrative Complaint at his or her address. The Election of Rights form shall be addressed to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630, Facsimile (850) 921-0158. Any party who appears in any agency proceeding has the right, at his or her own expense, to be accompanied, represented, and advised by counsel or other qualified representative. Mediation under Section 120.573, F.S., is available if the Agency agrees, and if available, the pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to the below named persons/entities by the method designated a Andrew B. Thornquest, Assistant General Counsel Florida Bar No. 0104832 Agency for Health Care Administration 525 Mirror Lake Drive N., Suite 330 St. Petersburg, Florida 33701 Telephone: 727-552-1942 Facsimile: 727-552-1440 andrew.thornquest@ahca.myflorida.com a7 on this 4th day of March, 2019. 50 Shaddrick Haston, Esquire Counsel for Respondent 1618 Mahan Center Blvd. Suite 103 Tallahassee, Florida 32308 shad@shadhaston.com Electronic Mail Administrator, Ft Myers ALF BSLC, LLC d/b/a Lamplight Inn 1896 Park Meadow Drive Fort Myers, Florida 33907 (Certified Mail #: 7018 2290 0001 4174 2091 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: Ft. Myers ALF BSLC, LLC d/b/a Lamplight Inn AHCA No. 2019004190 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 with the Agency Clerk within 21 days by 5:00 p.m., Eastern Time, of the day that you receive the attached proposed agency action. If your Election of Rights with your selected option is not received by AHCA within 21 days of the day that you received this proposed agency action, you will have waived your right to contest the proposed agency action and a Final Order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 28, Florida Administrative Code.) Please return your Election of Rights to this address: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: 850-412-3630 Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I waive the right to a hearing to contest the allegations of fact and conclusions of law contained in the Administrative Complaint. | 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 fine, sanction or other agency action. OPTION TWO (2) I admit the allegations of fact contained in the Administrative Complaint, but wish to be heard at an informal hearing (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, sanction or other agency action should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Administrative Complaint and request a formal hearing (pursuant to Section 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 52 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. Licensee Name: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. Fax No. E-Mail (Optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: 53 USPS Tracking: Tracking FAQs_ Track Another Package + Remove Tracking Number: 70182290000141742091 Your item was delivered to an individual at the address at 10:31 am on March 29, 2019 in FORT MYERS, FL 33907. Status Delivered March 29, 2019 at 10:31 am Delivered, Left with Individual FORT MYERS, FL 33907 Get Updates Delivered

Docket for Case No: 19-001919