Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
Findings Of Fact In June, 1982, a rules workshop was held by the Board. At that time the adoption of a rule was proposed which would define certain statutory phrases included in Section 458.313(1)(d), Florida Statutes, which provides: Has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or is certified by the National Board of Medical Examiners as having completed its examination... Following the June, 1982, rules workshop, public notice of the proposed adoption of Section 21M-29.01(2), Florida Administrative Code, was published in the July 23, 1982, Florida Administrative Weekly. In support of Rule 21M-29.01(2), Florida Administrative Code, the Board adopted an economic impact statement which was prepared by the Board's attorney. In its entirety, the economic impact statement provides as follows: An estimate of the cost to the agency of the implementation of the proposed action: The only cost to the agency by this proposed rule will be the cost of notic- ing and printing. An estimate of the cost or the economic benefit to all persons directly affected: No additional cost or benefits are anticipated. An estimate of the impact of the proposed action on competition and the open market for emoloyment: No significant impact on competition or the open market for employment is anticipated. A detailed statement of the data and method used in making each of the above estimates: As this proposed rule merely provides a clearer understanding of what certain phrases mean, no new data or methodology is needed to reach the foregoing con- clusions. (Emphasis added.) Since the effective date of Rule 21M-29.01(2), Florida administrative Code, approximately two thousand applications- cations for licensure by endorsement have been filed with the Board. Approximately fifteen, or three- fourths of one percent of these applications, have been denied for failure to obtain a FLEX-weighted average of 75 percent from one complete- sitting on the examination. On August 7, 1983, the Board adopted Rule 21M-29.01(2), Florida Administrative Code, which provides as follows: The phrase has been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc.' (FLEX) or as certified by the National Board of Medical Examiners as having com- pleted its examination as used in Section 458.313(1)(d), F.S., shall mean the following: A FLEX-weighted average of seventy- five percent (75.0 percent) from one complete sitting on the FLEX, or an average score of seventy-five percent (75.0 percent) on the National Board. On November 10, 1983, the foregoing rule became effective and thereafter governed the application of Section 458.313, Florida Statutes. Prior to 1979, the Board had required a 75 percent FLEX weighted average to be obtained from one sitting of the FLEX, the same requirement contained in the challenged rule after its adoption. In 1979, however, legal counsel for the Board advised the Board that it lacked authority to require that an applicant for licensure by endorsement obtain a 75 percent score from only one sitting of the FLEX. Therefore, after 1979, and up to the promulgation of the challenged rule, the Board considered the highest grade obtained for a section of the FLEX examination when a candidate for licensure by endorsement had taken that section more than one time within the time frame required by Section 458.313, Florida Statutes. On December 21, 1982, Petitioner submitted by mail an application for licensure by endorsement to the Board. The application was received by the Board on December 28, 1982. Sometime between December 28, 1982, and January 19, 1983, the Board requested additional information from Petitioner relating to his professional activities during the period from June, 1967, to June, 1968. Petitioner responded to this inquiry by letter dated January 19, 1983, and therewith provided the Board the requested information. This letter was received by the Board on January 24, 1983. By use of a form dated February 23, 1983, the Board made another request for information from Petitioner relating to two omissions in his application. Petitioner responded to this inquiry by letter dated March 15, 1983, providing the requested information. This letter was received by the Board on March 21, 1983. Petitioner's application for licensure by endorsement is based upon his previously obtained FLEX certification. Petitioner took the FLEX, a three-part examination, incidental to applying for medical licensure by examination in the State of Illinois. Petitioner sat for the FLEX examination in Illinois on June 13, 14, and 15, 1972 and again on December 6 and 7, 1972. Following conclusion of each examination, Petitioner's responses to the examination questions were forwarded to the National Board of Medical Examiners for evaluation and scoring. On or about January 17, 1973, the National Board of Medical Examiners completed its evaluation and scoring of Petitioner's responses to the December, 1972, examination, and on or about January 19, 1973, the scores achieved by Petitioner were forwarded to the State of Illinois. On February 7, 1973, Petitioner was licensed by the State of Illinois, based upon the scores obtained by Petitioner on the June and December, 1972, FLEX examinations. The weighted average of the scores achieved by Petitioner on which licensure as granted by the State of Illinois was 75 percent. This weighted average was computed by assigning a one-sixth weight to the basic science portion of the FLEX examination taken by Petitioner on June 13, 1972; a two- sixth weight to the clinical science portion of the FLEX examination taken by Petitioner on December 6, 1972; and a three-sixth weight to the clinical competence portion of the FLEX examination taken by Petitioner on December 7, 1972. By letter dated March 1, 1983, a representative of the Board notified Petitioner that approval of Petitioner's application could not be recommended to the Board since Petitioner had not obtained a score of 75 percent or above at one sitting of the complete FLEX examination. The same letter informed petitioner that his application would be presented to the Board for consideration at its April 9-10, 1983, meeting, and that Petitioner would be notified of the Board's final decision within proximately fifteen days from the date of that meeting. On April 10, 1983, the Board at a regularly noticed public meeting considered Petitioners application Petitioner's attorney appeared before the Board and addressed the Board on behalf of Petitioner. After considering the information, argument, and legal authority presented by Petitioner's attorney, and the advice and information presented by its staff, the Board, through its chairman declared Petitioner's application was not filed within the ten-year period required by Section 458.313(d), Florida Statutes. The Board also determined that Petitioner had failed to comply with the requirements of Rule 21M-29.01(2), Florida Administrative Code, because he had not scored a FLEX- weighted average of 75 percent or better during only one complete sitting of the FLEX examination.
Conclusions Having reviewed the Amended Administrative Complaint ant the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and the Administrative Complaint and Election of Rights forms to the Respondent. (Composite Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $18,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed April 17, 2014 3:12 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this_ Z@ day of Cort , 2014. Elizabeth Dudxk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct gps of this Final Order was served on the below-named persons by the method designated on this ik. day of / , 2014. a ay X\ OOP, Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting ~ | Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Alba M. Rodriguez, Senior Attorney Peter A. Lewis, Esq. Office of the General Counsel Law offices of Agency for Health Care Administration Peter A. Lewis, P.L. (Electronic Mail) 3023 North Shannon Lakes Drive - Suite 202 Tallahassee, Florida 32309 (U.S. Mail) Cathy M. Sellers Administrative Law Judge [Division of Administrative Hearings (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012011203 ; v. ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. AMENDED ADMINISTRATIVE COMPLAINT" COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this Amended Administrative Complaint against ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, Chapter 408, Part Il, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $5,000.00 pursuant to Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare, and to impose a survey fee in the amount of $500.00 pursuant to Section 429.19(2)(c) and 429.19(7), Florida Statutes (2011). L The Amended Administrative Complaint is being issued to reflect the revised sanctions imposed by the Agency. Coellae TE EXHIBIT 1 JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Chapter 408, Part II, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes, COUNT I WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVE IN A SAFE ENVIRONMENT SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE — FACILITY PROCEDURES STANDARDS) CLASS If VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with one (1) Class II deficiency as the result of a revisit survey conducted on Aril 2, 2012. 8. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe and decent living environment and with due recognition of personal dignity, for 1 resident. (Resident #1) The findings include the following. 9. During an interview on 4/2/12 at 10:30 AM with Resident #1, the resident's room was observed in disarray. Empty food containers were on the resident's side table beside her nebulizer, food was in the draws of the wall unit, and in a box on the table. The resident's clothes were hanging on rods in broken boxes in the corner of the room. Four unidentified pills in a plastic bag were noted on the bedside table, and an empty insulin bottle and 4 empty pill bottles on the counter in the bathroom. The floor in the room was also soiled. 10. The resident stated she felt like nobody likes her, staff is mean, and nobody ever comes to check on her. The resident also stated she is missing medication, the aides don't shower her, and she feels like "the staff are mad at me". Then the resident began crying. 11. At 10:35 AM on 4/2/12, the call light was tested and pressed by the surveyor with the facility manager present. Fifteen minutes later, at 10:45 AM, the call light was answered. The call light was answered by a med tech, who stated nobody was in the medication room when the light went off so they did not see it. 12. During an interview on 4/2/12 at 11:40 AM with the 2 facility med techs, they stated resident #1 does not have any home health services and self-administers their medications. The med techs also stated they did not store any of the resident's medications and they should all be kept in her room. At that time observation was made of the call light system which is located inside the first floor medication room/nurse station. If no staff is present in this room, there is no way to know if a resident activates the call system. 13. A review of resident #1's record revealed an admission date of 1/31/11 and a diagnosis to include diabetes, renal insufficiency, and asthma. The AHCA form 1823 dated 1/26/11 documents the residents need for assistance with medications. The AHCA form 1823 dated 2/17/12 documents the resident's need for assistance with bathing and need for help taking their medications. The form did not document if the resident needs assistance with self- administration or medication administration. 14. The resident's medication observation record (MOR) for February through April 2012 was reviewed and included the following medications: Lantus 100 units/ml vial inject sub- Q 25 units 3 times a day, "Home Health Care". Iprat-Albut .5-3(2.5) mg use 1 vial via nebulizer twice daily. Wellbutrin XL 150 mg 1 tablet daily. Glipizide 10 mg 1 tablet daily. Singulair 10mg 1 tablet daily. Bupropion hel 150mg 1 tablet twice daily. 15. | The MOR's were blank. The facility did not document resident #1 had refused or received their medications as ordered by the physician for 14 months. A plan of care for skilled services to administer the resident's insulin was requested as well as the home health record. The facility manager stated the resident does not receive home health services and the facility has not been monitoring the resident's diabetes. 16. Further review of the record did not contain physician's orders for the resident to self-administer any medications, or documentation the resident was being assisted with bathing. There was no evidence the facility notified the physician with any concerns. 17. During an interview on 4/2/12 at 2:40 PM with the facility manger and Resident #1 in their room, the resident stated she gives herself the insulin 2 or 3 times a day depending on what she eats and does not check her glucose levels. At that time observation was made of 2 bottles of Lantus insulin in a plastic bag in the resident's refrigerator. The resident also stated she was missing medications, and needed to get to the bank because she did not have the money for the copayments. She reported the facility does not get her medications and was not in possession of any of the above listed medications. 18. During an interview on 4/2/12 at 4:00 PM with the facility manager and nurse consultant to review resident #1's record, it was confirmed the facility does not have a physicians order for resident #1 to self administer their medications. It was also confirmed the facility does not supply or store any of resident #1's medications. The facility could not provide documentation resident #1 had received any of their physician ordered medications from 2/1/11 through 4/2/12 or home health services as ordered by the physician for diabetic management. This is an uncorrected tag from survey on 12/21/11. 19. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28 Florida Statutes, and Rule 58A-5.0182(6), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $5,000.00. SURVEY FEE Pursuant to Section 429,19(7), Florida Statues (2011), AHCA may assess a survey fee in the amount of $500.00 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. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise. 2. Assess an administrative fine of $5,000.00 against Westchester of Sunrise on for the violation cited above. 3. Assess a survey fee of $500.00 against Westchester of Sunrise for the violation cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Ti allahassee, Florida 32308. Alba M. ee Bs i Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53” Street Suite 300 Miami, Florida 33166 305-718-5906 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. — Suite 500 Delray Beach, Florida 33484 (U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail palewis@petelewislaw.com, Peter A. Lewis, Esq., Attorney for Respondent, 3023 N. Shannon Lakes Drive, Suite 101, Tallahassee, Florida 32309 on this 13" day of February, 2014. Alba M. 2 Rediaatae STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF Westchester of Sunrise, LLC d/b/a AHCA No.: 2012011203 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) | I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___—=i dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Floriaa Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012001196 Return Receipt Requested: v. 7009 0080 0000 0586 7599 ISLF-WESTHCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this administrative complaint against ISLF-Westchester of Sunrise LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $13,000.00 pursuant to. Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4, AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I WESTCHESTER OF SUNRISE FAILED TO PROVIDE PERSONAL SUPERVISION 1 DAILY OBSERVATION, AND GENERAL AWARENESS OF RESIDENT’ S WHEREABOUTS AND SAFETY WHICH RESULTED IN DEATH. RULE 58A~5.0182(1), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE SUPERVISION STANDARDS) CLASS I VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with two (2) Class I deficiencies and one (1) Class IT deficiency as the result of a complaint investigation survey that was conducted on December 21, 2011. 8. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined that the facility failed to provide personal supervision, daily observation, and general awareness of a resident's whereabouts and safety, which resulted in death for one out of four sampled residents (resident #3). The findings include the following. 9. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a’ vacant room on the floor where he resided. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 10. The risk manager also reviewed documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident's family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation, the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 11. In interview on 12/21/11 at 3:45 PM the DON, risk manager, and administrator confirmed the facility does not have policies regarding resident supervision or resident safety related to vacant rooms. 12. A review on 1/13/11 of the police investigation dated 11/11/11 revealed a sworn statement taken from facility staff documenting staff was aware the resident liked to walk and was prone to falling. It was also documented that "No employees attempted CPR or to free him from his walker, nor. did any persons to her knowledge check for breathing or a pulse until the Sunrise FD arrived and performed their assessment." "It appears as if the decedent was confused...this was not the first time that the decedent wandered into another room thinking that is was his. No signs of forced entry, however, it appeared as if the decedent was possibly struggling to keep his balance thus knocking over some furniture." 13. A review of the medical examiner's report dated 11/12/11 identified the injury description as the decedent’s neck became caught in the walker and the cause of death as Asphyxia due to Cervical Compression. 14. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(1), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT II WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVED IN A SAFE ENVIRONMENT. SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE RIGHTS & FACILITY PROCEDURES STANDARDS) CLASS I VIOLATION 15. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 16. A complaint investigation survey was conducted on December 21, 2011. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe environment, free from neglect which resulted in a death of a resident, for 1 of 4 sampled residents (Resident #3). The findings include the following. 17. Resident #3 was admitted to the facility on 9/24/11 with a diagnosis to include depression, anxiety, and he osteoporosis. A review of the AHCA form 1823 dated 9/15/1 documented the resident ambulates independently with a walker. A review of the facility resident summary sheet dated 9/24/11 documents the resident's need for partial assistance with a walker while ambulating. 18. Continued review revealed a physician order dated 11/9/11 for Tylenol 650 mg daily three times a day and a rib series "dx: S/P Fall" (diagnosis: status/post fall). Further review of the resident's record revealed no documentation regarding a fall. 19. A review of the medication observation record (MOR) documented resident #3 began taking Tylenol 325 mg 2 tabs three times a day on 11/10/11. During an interview on 12/21/11 at 11:30 AM with the risk manager, Director of Nurses (DON) and administrator, the facility was unable to determine when the resident had a fall. 20. During an interview on 12/21/11 at 12:00 PM with the physician and the physician assistant, who wrote the order on 11/9/11, she stated the resident was complaining of rib pain "he said he had fallen but did not say when". The physician stated she reviewed an old X-ray from a left rib fracture but since the resident was complaining of right rib pain and has a history of falls she ordered the rib series. 21. A review of the facility's adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered unresponsive on the floor in a vacant room. During an interview on 12/21/11 at 2:45 PM with the DON and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. The DON stated the door to vacant rooms should always be locked. During the interview, the maintenance director confirmed the facility had not done any work in the room between 10/3/11 & 11/11/11. The facility did not have a policy related to resident supervision or securing/monitoring vacant rooms. 22. The risk manager also reviewed documentation from staff reporting the resident did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 23. During the interview at 3:45 PM on 12/21/11, the risk manager confirmed the room was vacant and stated the headboard of the bed was not attached to the wall, the bed was falling off the frame, and the resident was found unresponsive on the floor beside the bed with their head entrapped between the bars of the walker. A telephone interview on 12/21/11 with the medical examiner, revealed the cause of death as Asphyxia due to Cervical Compression. 24. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28, Florida Statutes, and Rule 58A- 5.0182(6), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT III WESTCHESTER OF SUNRISE FAILED TO IMPLEMENT THEIR ELOPEMENT RESPONSE POLICIES AND PROCEDURES. RULE 58A-5.0182(8), FLORIDA ADMINISTRATIVE CODE (ELOPEMENT PROCEDURE STANDARDS) CLASS II VIOLATION 25. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 26. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined the facility failed to implement their elopement response policy and procedure for 1 of 4 sampled residents (resident #3). The findings include the following. 27. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a vacant room on the floor where he resided at approximately 12:20 PM. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 28. Based on record review with the risk manager, the facility had documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. 29. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(8), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise on Counts I, II, and III. 2. Assess an administrative fine of $13,000.00 against Westchester of Sunrise on Counts I, II, and TII for the violations cited above. 3. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 4. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. 10 RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. If YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER Cewas mr. Races Alba M. Rodriguez} Esqa Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53%° Street Suite 300 Miami, Florida 33166 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. ~ Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Gary Stephen Solomons, Administrator, Westchester of Sunrise, 9701 W. Oakland Park Blvd., Sunrise, Florida 33351 on this i2** aay of Opts , 2013. Alba M. ee ye" Zz ms 12 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF-Westchester of Sunrise, LLC d/b/a AHCA No.: 2012001196 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive mny right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. ___Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Dates Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, AHCA No. 2012001196 Petitioner, DOAH No. 13-2452 vs. AHCA No. 2012011203 DOAH No. 13-3182 ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”, through its undersigned representatives, and Respondent, ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Respondent”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an Assisted Living Facility, licensed pursuant to Chapters 408, Part I], and 429, Part I, Florida Statutes, and Chapter 38A-5, Florida Administrative Code: and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapter 429, Part I, Florida Statutes; and WHEREAS, the Agency served Respondent with an administrative complaint on or about May 21. 2013, (on case #2012001 196), notifying the Respondent of its intent to impose adniinistrative fines in the amount of $13,000.00; and an amended administrative complaint on EXHIBIT 2 or about February 14, 2014, notifying the Respondent of its intent to impose administrative fines in the amount of 5,000.00, and a survey fee in. the amount of $500.00; and WHEREAS, Respondent requested a formal administrative proceeding by selecting Option 3 on the Election of Rights form: and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding: and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: L. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120,68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, Respondent agrees to pay $18,000.00 in administrative fines, and a survey fee in the amount of $500.00 to the Agency within thirty (30) days of the entry of the Final Order. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. ba 6. By executing this Agreement, Respondent neither admits nor denies, and the Agency asserts the validity of the allegations raised in the administrative complaint referenced herein. 7. No agreement made herein shall preclude the Agency from using the deficiencies from the surveys identified in the administrative complaint in any decision regarding licensure of Respondent, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance. The Agency is not precluded from using the subject events for any purpose. within the jurisdiction of the Agency. In such event, however, the Facility or its assigns or successors will be provided hearing rights pursuant to Chapter 120 to challenge the allegations made in this case. Further, Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal. state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part. the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Respondent's Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney's fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attomeys of and from all claims. demands, actions, causes of action. suits, damages, losses, and expenses, of any and every nature whatsoever. arising out of or in any way related to this matter and the Agency’s actions, including. but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. by or on behalf of Respondent or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule $9G-9.070, Florida Administrative Code. 14. Respondent agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof, owed by Respondent to the Agency ftom any present or future funds owed to Respondent by the Agency, and that the Agency shall hold a lien against present and future funds owed to Respondent by the Agency for said amounts until paid. 1S. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This. Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18... This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. Molly McKinytry Sheryl Adminisyrator Deputy Segrefary: Westchester of Sunrise Agency for Health Care Administration 9701 W. Oakland-Park Boulevard 2727 Mahan Drive, Bldg #1 Sunrise, Florida 33351 Tallahassee, Florida 32308 DATED: _&@ = 24-/f Stuart Williams, General Counsel Alba M. ante é q 4e Florida Bar No. 670731 Assistant General Counsel Agency for Health Care Administration 8333 NW 53” Street, Suite 300 2727 Mahan Drive, Mail Stop #3 Miami, Florida 33166 Tallahassee. Florida 32308 DATED: 3/3 6 / Ly DATED: —_ Péter A. Lewis, Esquire 2012 North Shanon Lakes Drive Suite 101 Tallahassee, Florida 323090 DATED: 3° 73-42! te
