The Issue The issue in this case is whether there is sufficient cause for Respondent, Agency for Health Care Administration (AHCA or the Agency), to deny the licensure renewal application filed by Petitioner, Senior Lifestyles, LLC, d/b/a Kipling Manor Retirement Center (Kipling or the Facility), to continue operating a 65-bed assisted living facility (ALF) located in Pensacola, Florida.
Findings Of Fact Kipling is a 65-bed assisted living facility located at 7901 Kipling Street, Pensacola, Florida. It has been in operation for approximately 20 years and is licensed by AHCA as an assisted living facility with a limited mental health license and a limited nursing services license. Kipling is an older facility and its residents are some of the hardest residents to place, i.e., many are homeless, have serious mental illnesses, and do not have money to pay for amenities and extra care. As described by a former assistant administrator at Kipling, “[The residents] are a very tough bunch. However, they are loving. They don’t always communicate as well as you and I do. At times they’re – they have internal stimuli. They hear things and see things that aren’t there. They don’t have the full grasp of why they have to be there, their illnesses and what are, . . . that they may be doing wrong, if they’re not clean, they’re not taking a bath, they don’t understand why they have to do that or they don’t have the internal stimuli telling them not to do that. But, overall, you know, the residents are very happy and loving, unless they are agitated, which comes with mental illness.” (Elizabeth Dunn, Respondent Exhibit 18, pp. 18-19) AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this State. As part of its duties, AHCA makes a determination whether applications for initial licensure or license renewal should be approved. Such determinations are made, in part, based upon findings made by Agency surveyors who visit facilities to inspect and monitor compliance with regulatory guidelines. Surveyors make findings as to what they observe at the specific point in time during which their investigation is conducted. Their observations and interviews with staff and residents are reduced to writing in AHCA Forms 3020 or 5000, the Statement of Deficiencies report. On June 25, 2013, Kipling filed an application for renewal of its operating license. The application was filed timely with AHCA. AHCA found there to be three items missing from the application: 1) There was an outstanding balance of $47.35 due on a fee; 2) There was no current fire safety inspection report; and 3) There was no fictitious name registration. Kipling responded to the omissions letter and all three outstanding items were presumably provided to AHCA (although no evidence to that effect was presented at final hearing). AHCA did not assert that failure to provide those three items constituted a basis for its decision to deny the licensure renewal. On September 6, 2013, AHCA issued a Notice of Intent to Deny Renewal, advising Kipling that its renewal application was being denied. The stated basis for the denial was “the applicant’s failure to meet minimum licensure standards pursuant to 408.815(1)(d), Florida Statutes.” That statutory section states in pertinent part: “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: . . . A demonstrated pattern of deficient performance; . . .” The Notice then listed a number of surveys that had been conducted at the Facility and the general findings therein. On October 15, 2013, AHCA issued an Amended Notice of Intent to Deny Renewal Application. The Amended Notice included information from two surveys which had been conducted after the date of AHCA’s first notice of denial. The Amended Notice cited as “legal grounds for the denial of the renewal application” three distinct bases: 1) Violation of the Health Care Licensing Procedure Act; 2) A demonstrated Pattern of Deficient Performance; and 3) A failure to comply with the Background Screening Standards. At final hearing, the Agency presented evidence of alleged deficiencies at Kipling during ten inspection surveys conducted over the past three years. The surveys, which will be discussed individually below, are identified by the following dates (although some of the surveys lasted more than one day): February 17, 2011; February 1, 2012; June 11, 2012; October 26, 2012; December 19, 2012; March 14, 2013; April 24, 2013; August 8, 2013; September 18, 2013; and October 2, 2013.3/ AHCA is claiming a “pattern of deficient performance” by Kipling which, if proven, could establish a basis for not renewing the licensure application. The findings made in the ten surveys ostensibly form AHCA’s basis for the alleged pattern of deficient performance. AHCA’s findings in and Kipling’s response to each of the aforementioned surveys is set forth in more detail below. There are several different kinds of surveys performed by AHCA, but during each survey AHCA is generally looking for compliance with the same rules and regulations. A survey may be one of the following: A biennial survey, required for continued licensure as an ALF; a follow-up survey to determine if cited deficiencies have been corrected; a complaint survey based on allegations made by someone, usually anonymously and sometimes maliciously; or a re-visit, much like a follow-up survey. February 17, 2011 This biennial survey, conducted almost two-and-a-half years before the Notice of Intent to Deny Renewal (and before Kipling’s current license was issued), resulted in a finding of seven Class III4/ (that is, potentially or indirectly threatening) deficiencies. Those deficiencies include: The latest inspection report was not assessable to persons visiting the Facility. Two bottles of over-the-counter medications used to treat constipation did not have prescribing instructions on them. The same medication error as above, but cited under a different standard. The Facility was using Lancets (tools for taking blood samples) which had expired. There was no evidence that one employee had received required HIV/Aids training. There was no documentation showing that one employee had received first aid training. There was not a complete substitution log for meals. Each of the cited deficiencies was corrected immediately or was otherwise cleared prior to the follow-up survey. As to the specific citations: 1) The inspection report was available in the administrator’s office on the date of the survey, but would hereafter be kept in the lobby area for easier access by interested persons. Kipling is a closed facility, so that anyone seeking entry must wait for the door to be unlocked. Such visitors could then request to look at the inspection report and it would be made available to them. However, the inspection reports could have been kept in the outer lobby area, which is accessible to the general public. 2) The over-the-counter medications should have been labeled to show which resident was taking them, and at what times; that failure was a documentation issue rather than a medical issue. There was never any potential for harm to the resident. 3) The old Lancets were disposed of immediately; no explanation was given as to why outdated lancets were at the facility. 4) Documentation showing that each of the employees had the appropriate training was presented. 5) The prior food services director had taken the meal substitution logs, so they were indeed missing as of the date of the survey. The logs are being redrafted by current staff. Note: A meal substitution log is simply a sheet of paper showing that the planned meal for that day was not going to be served. Rather, a substitute meal would be provided. This happened when the Facility was unable to acquire the foods listed in the original meal log. For example, if fried chicken was on the menu but the Facility could not purchase chicken that day, it might substitute beef for the chicken. As this February 2011 survey was the first utilized by AHCA in this proceeding, it is presumed that some or all of the deficiencies cited therein form the basis for the alleged pattern of deficient performance. As set forth below, none of these cited deficiencies constitute the first instances of a pattern followed by Kipling. At the same time the biennial survey was going on, two simultaneous surveys were being conducted by AHCA related to Kipling’s Limited Mental Health license and its Limited Nursing Services license. Those surveys resulted in no findings of deficiencies. February 1, 2012 Seven deficiencies were found by AHCA during this complaint survey. Each of them was a Class III, and each had been corrected by the time of the revisit survey the following month. The cited deficiencies were: The Facility failed to provide supervision or assistance to four of 16 sampled residents (according to statements allegedly made by some residents and family members to the surveyor – although there was no valid corroboration for these hearsay-based findings). One example given was that a particular resident had not had a shower in over a month, according to the resident’s statements; The Facility failed to act on the grievances or complaints of seven of 18 sampled residents, but again there was no competent and substantial evidence to support this allegation; A medication technician rather than a nurse assisted a resident with taking medications; There were incorrect medication observation records (MORs) for two of six sampled residents; Medications needed by some identified residents were not in stock; The heat in one resident room was not working properly, and washers and/or dryers were not working at one point in time; and Medications were documented as having been given, but were not in fact given. Note: None of the deficiencies in the prior (February 1, 2012) survey were repeated in this survey. The Facility corrected each of the seven deficiencies within the time prescribed by AHCA. In direct response to the cited deficiencies, however, the Facility stated that: 1) Kipling has a bath schedule for its residents. Many of them simply choose not to bathe and the Facility cannot force them to do so. 2) There are no confirmed instances of resident complaints being ignored. 3) It may be that a medication technician--rather than a nurse--assisted one resident with his/her medications. While improper, the technician was conscientiously attempting to make sure the resident received his/her medication. 4) The medication issues surrounding one of the residents existed because the resident was under hospice care. Once hospice became involved, medications fell under their purview rather than being administered by Kipling’s staff. The evidence was unclear as to whether any or all of the cited errors were because of the resident’s status as a hospice patient. 5) It was difficult to ascertain from the evidence whether the medication errors alleged actually existed. There was scant non- hearsay evidence provided to make a legitimate determination of whether an error was made. 6) The facility is old, and it is probable that there could be heating or cooling issues in some rooms. Nonetheless, all identified issues were addressed immediately. 7) There were errors on the MORs forms for some residents. There were, as in the prior survey, citations concerning medication errors. The deficiencies were not exactly the same, though some fell under the umbrella of “medication deficiencies.” Based upon the kind of residents being served at Kipling and the pool of available employees willing to work there, it is not surprising that such errors occurred.5/ June 11, 2012 During this complaint survey only one deficiency was cited, a Class III. It had to do with cleanliness of the Facility in general, with four rooms specifically mentioned. The Agency found that Room 22 had a strong odor; Room 23 had a “fist- sized break” in the door and the ceiling vent was hanging down; the vent in Room 18 was missing; and Room 6 had missing baseboards. These deficiencies, euphemistically listed as “environmental” concerns, are to be expected in a facility such as Kipling. They are not excusable and must be addressed--but they are not all that surprising. By the time of the follow-up survey, the deficiency had been corrected. Meanwhile, the Facility provided information about each of the maintenance type deficiencies, to wit: The resident in Room 22 used a bedside commode which was the source of the smell. The damaged door and ceiling vent were in the queue to be repaired at the time of the survey. The vent in Room 18 was replaced immediately upon discovery. (Some residents removed vents, window screens, etc., from time to time and they would have to be replaced when discovered.) The missing baseboards in Room 6 were due to the fact that a new vanity had just been installed and the old baseboards were found not to fit any longer. New baseboards had been ordered. October 26, 2012 The Agency found two Class III deficiencies in the complaint survey conducted on this date: Room 35 had a strong odor; Room #17 had an odor and a used adult diaper was found on the shower stool; and Room 26 had a dirty floor. Room 20 did not have a vent cover over the exhaust fan; a common area bathroom had no vent fan or air conditioning vent cover. Note: The missing vent covers were a repeat from the prior survey, although for different rooms. Upon revisit, the deficiencies were not corrected. At the time of the second revisit, one deficiency had been corrected but not the other. At the last revisit, all items had been corrected. The Facility has a full-time maintenance person who tries to keep up with repairs, but sometimes things get broken faster than he can repair them. Further, some of the residents are destructive because of their mental illness, resulting in more physical plant problems than in other ALFs. This, coupled with the fact that this is an old facility, indicates that the existence of some physical plant issues is to be expected. These deficiencies confirm the difficulty faced by Kipling regarding its physical plant; they do not, however, constitute a pattern of deficient performance so much as they indicate slow responses to the problems. December 19, 2012 On this complaint survey (which included a follow-up review from the October 26 survey), three additional Class III deficiencies were cited. There were two medication errors cited and one other deficiency: Residents 13 and 15 were receiving medications which did not appear on the MOR; Resident 17 received Tylenol which was on the MOR, but for which there was no physician’s order. Also, as-needed (PRN) Tylenol tablets for Resident 15 were not in stock and neither was the PRN acetaminophen for Resident 17. The other deficiency had to do with failure to file an adverse incident report when a resident had eloped. All of the deficiencies were ultimately corrected. Note: The MORs deficiencies were similar to those cited in a prior survey. The Facility explained that it is often difficult, because of the nature of the residents it serves, to keep up with medications. Many of the residents are unable to fully communicate with their physicians, many are without any financial means of obtaining medications, many have had their medications reduced by governmental agencies upon whom they rely. Often a physician who is responsible for calling in the medications simply fails to act because their patients (the ALF residents) cannot or will not complain if nothing is done. Thus, the Facility does often receive citations for failures relating to medication issues. While such deficiencies may constitute repeated errors, they do not necessarily constitute a pattern of deficient performance due to the reasons behind the failures. As to the elopement issue, the resident left the facility and went to his mother’s house. The facility failed to report the “elopement” because the resident was generally allowed to come and go at will. However, he was supposed to sign out each time he left and returned, but did not do so this time. While the resident did not truly “elope” from the facility, his failure to sign out should have been noted and technically constituted a deficiency. AHCA also cited Kipling for some physical plant deficiencies during this survey: The window screen in Room 2 was missing; Room 6 had “very dirty floors” and a noxious chemical odor; Room 12 had dirty floors; Room 14 had dirty floors and the bathroom door frame had rust on it; In Room 18 the bathroom shower area had a “large amount of black substance” on the shower walls and the room had an “earthy smell” to it; Room 20 has filthy floors and the toilet has feces stains around the lid; Room 22 has a “receptor missing and the bed has a torn mattress”; Room 25 had dirty pillow cases, dirty floors, and a portable urinal sitting near the bed had urine in it. There was also urine on the bathroom floor; There were flies in Room 31 and 34; Room 34 “needs sweeping and mopping” and the air conditioner grill cover was missing; Room 36’s window screen was missing and the closet door was broken; Room 26 had a dirty floor and the room was cluttered; Room 35 had dirty floors. Note: Again some of the environmental issues had been cited previously, but as noted this was an old and poorly maintained facility. These allegations by AHCA surveyors did not reflect whether the conditions found at the time of the survey had existed for a long period of time, what constituted “dirty” in the minds of the surveyors, or whether any explanation was given by the facility for the cited issues. Rather, the survey report indicates that maintenance staff was made aware of the issues and would take care of each one as time allowed. Again, this older building, serving mentally unstable residents, is likely to experience some of these physical plant issues. The facility has a full-time maintenance person, plus two full-time housekeepers. Due to the nature of the individual residents (many with mental health issues), it is difficult to keep up with housekeeping demands. Each employee of the facility is charged with assisting in maintaining the facility to the extent possible. March 14, 2013 On this biennial survey coupled with a revisit for past surveys, one Class III deficiency--concerning food service and dietary--was cited. The Facility provided a lunch of chicken alfredo, mixed nuts and a roll. However, the posted menu for that day indicated there would be ham and beans, cabbage, rice, and cornbread. The Facility simply failed to log the substituted meal on a substitution log. On the re-visit portion of the survey, two Class II deficiencies were cited concerning resident care and medication issues: One resident care issue had to do with the cleanliness, or lack thereof, of resident rooms, missing vents, etc. Resident 1 was not receiving his Remeron; Resident 2 had an expired prescription for Lortab on a PRN basis, but the medication had not been reordered and was not available. Resident 13 was not given his mucinex on two different days and did not have lortisone cream applied between his toes twice daily as prescribed. Resident 14 did not have vitamin B-12 available as prescribed. Kipling employs two full-time housekeepers to keep the rooms as neat and tidy as possible. The housekeepers do a “full scrub” on a certain number of rooms each day and a superficial cleaning of the others. All employees are expected to help keep the rooms clean. The urine odor in one room on the date of the survey was likely due to the fact that the resident had left a used adult diaper in the trash can. It was removed as soon as it was found. A missing closet door in one room was due to the resident’s preference; a missing dresser drawer in one room was remedied as soon as it was discovered. (Many of the residents at Kipling suffer from schizophrenia and other mental illnesses, so they are prone to mistreating the physical plant.) The Facility explained that many of its employees are not conscientious and do not perform their duties as directed. The poor work habits of employees caused problems that the Facility tried to correct as quickly as possible. The best and most well-trained employees were hired by nicer facilities. As the place that accepted and cared for the lower stratum of society, the Facility was only able to attract the least trained and less motivated individuals. All medications were available and had been given as prescribed, according to the Facility’s DON. However, the assistant administrator admitted that Resident 1’s medication had been ordered but had not yet come in because the facility had difficulty dealing with Vanguard, the pharmacy. Thus, the medication could not have been provided to the resident on the day of the survey. The citation concerning medication errors appears to be a legitimate deficiency in this instance. Kipling was required to correct those errors by the time of the follow-up survey, which it did. April 24, 2013 This was a multi-purpose survey, including a follow-up or revisit survey. According to AHCA, the following deficiencies were found: Resident 1’s MOR was not up to date; Resident 2 did not have enough vitamin D available for his/her weekly dosage; There was a mistake made with Resident 3’s medications after s/he returned from a hospital visit; Resident 4 was given the wrong dosage of a medication; and Resident 6 was getting the wrong dosage of some medications and some of his/her medications had been discontinued. The facility disputed the claims by way of the following facts: The MOR for Resident 1 was filled in retroactively by the appropriate person.[6/] The problem had been an irregular discontinuation notice used by Lakeview, one of many providers with whom the facility does business. Although the MOR showed the vitamin D being given every day, that was an error. At the outset, only four days’ worth of vitamin D was ordered; the MOR should not have shown it being given every day. The MOR was corrected, but the AHCA surveyor refused to accept the corrected version or the explanation. AHCA was correct in finding some errors occurred with Resident 3’s medications upon return from his/her hospital visit. The proper medications for Resident 4 were attached to his/her admission form and signed by his/her physician. The MOR for Resident 6 was in error, but the medication (Plavix) had been given appropriately. This was a documentation error only. There were obviously some inconsistencies between the MOR, the appropriate dosages, and what medications some residents received. Those errors are an area of concern and should be addressed. The Facility showed, by competent and substantial evidence, that any and all such errors were corrected or explained. Nonetheless, the medication errors are repeated deficiencies. August 8, 2013 This was a complaint survey. Two Class II deficiencies were cited at this survey: Resident 4 did not receive required medications the first four days of his stay at the Facility. Resident 2 needed eye drops that were not available. Resident 1 needed Baclofen but there was none on the medication cart. A bottle was found in the resident’s closet. The Facility was also cited due to an alleged scabies outbreak, but there is no credible evidence that a single case of scabies was confirmed among the residents. Nonetheless, all scabies-like rashes were treated with an appropriate cream. Several dozen residents had rashes of some kind (or shared a room with someone who did), so the facility treated them all. It is Kipling’s belief that a new clothes detergent could have been causing the rashes, but there was not any credible evidence to support that contention. Resident 4 did not get his/her medications immediately upon admission; the nurse responsible for that mistake was terminated from employment. Resident 1 received one of his medications in an improper dosage amount and another of his medications had run out. Also, one employee (a re-hire from prior employment at the Facility) did not have proof that she had taken the two-hour Assistance with Medication training, which is required. The surveyors also found a box of expired medications in the facility “hurricane room.” The medications should have been disposed of by sending them back to the pharmacy or via some other method. When the medications were discovered they were immediately disposed of, but the existence of the medications in the hurricane room constituted a deficient practice by Kipling. September 18, 2013 This survey, which was conducted after Kipling’s license renewal had been denied, resulted in two Class II deficiencies. This was a complaint survey. The survey remains “open” as the Facility still has an opportunity to correct and/or challenge the alleged deficiency.7/ AHCA cited one Class III deficiency having to do with how and when residents were evicted from the Facility. Although the resident’s admission contract indicates that 45 days’ notice will be provided, only 30 days’ notice was given to Resident 1. Resident 2 was also given an immediate termination notice, but still remained at the Facility at the time of the survey, some 33 days later. In each case, there were extenuating circumstances for the expedited eviction; in one case the resident was not paying his rent and in the other case the resident was bringing illegal substances into the ALF. The Facility notes that this survey remains open and there has not been a final determination as to the cited deficiencies. The survey occurred after the denial of the licensure renewal application. October 2, 2013 Two Class III deficiencies were cited at this follow-up survey. However, the survey remains open at this time. A resident allegedly told an AHCA surveyor that s/he did not receive a medication (Lexapro) and another did not receive his/her Robitussin. One resident allegedly ran out of a medication (Ativan) and another was not receiving his/her medications (Combigan and Vigamox). One resident was not getting trazodone although it had been prescribed. However, there was no non-hearsay evidence to support these findings. Besides, Kipling explained that these residents were difficult to care for and did not have good relationships with their physicians. The Facility often found it difficult to get residents’ prescriptions filled timely. Background Screening Issue AHCA also cites Kipling for failing to properly conduct background screening on one of its employees. The employee in question was hired in April 2011. During a survey by the Agency in July of that year, it was determined that the employee had a disqualifying offense in his background. Kipling had not initiated a background screening of the employee because, as a cook for the facility rather than someone working directly with residents, it did not feel the screening was necessary. Once his disqualifying offense was discovered, the employee was dismissed from employment with Kipling. The failure to obtain background screening for the employee was addressed in DOAH Case No. 11- 4643. In that case, ALJ Staros determined that the failure constituted a Class III deficiency; she imposed a fine of $2,000 (which was actually the total for two Class III deficiencies found during the survey, one of which was the background screening issue). The Recommended Order was adopted by the Agency in its Final Order. Sanctions for the background screening deficiency have already been imposed and paid. There is no basis for any further penalty against Kipling related to that event. The facts of DOAH Case No. 11-4643 will not be revisited in the present Recommended Order. Kipling offered into evidence a certificate for employee Yahika Brown showing that Brown had received a TB test from Sacred Heart Medical Group (SHMG). Brown testified that she never received such a certificate, but that she saw one with her name on it in the assistant administrator’s office. The assistant administrator, Adrienne Taylor, said that Brown brought the certificate to the Facility and gave it to her. The charge nurse from SHMG, Laqueta Teamer, testified that the Brown certificate was a forgery. Teamer presented another certificate which had been issued to S—-S--, another former employee of Kipling. The S—S-- certificate was signed the same day by the same individuals and contained the same markings as Brown’s alleged certificate. There was no evidence in the SHMG files that Brown had been present at their office on the date stated in the certificate, nor could the nurse find Brown’s name in any of SHMG’s files. The greater weight of the evidence is that Brown’s certificate is fraudulent. General Observations It is patently clear that Kipling is not a pristine, state-of-the-art assisted living facility. The physical plant is old and severely abused by its residents. The competency level of many staff is extremely low, resulting in less effort being made to clean up the general messiness of the Facility. Many of the residents are on multiple medications and have little or no support from their treating physicians in maintaining their prescriptions. The Facility staff often appears to operate in a shoot- from-the-hip fashion concerning its duties. There are multiple errors on the MOR documents; there does not seem to be a strong sense of concern or empathy between residents and staff; and many problems seem to be met with a shrug. The fact that the Facility apparently falsified a certificate to indicate that one of its employees received a TB test that had not occurred is most concerning. It brings into question much of the testimony by some Kipling witnesses, especially Adrienne Taylor. Nonetheless, the owner and operator of Kipling seems to be genuinely willing to provide assisted living services to the most marginalized strata of humanity in the Pensacola area. That is to be commended, despite other negative actions. Looking at the entirety of the evidence, the demeanor of the witnesses, and the corroboration (or not) of hearsay evidence, it is clear that the Facility has some on-going issues which must be addressed regularly. There is insufficient evidence, however, that a “pattern of deficient performance” exists concerning operation of the Facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Agency for Health Care Administration, rescinding its Notice of Intent to Deny Renewal Application.8/ DONE AND ENTERED this 10th day of June, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2014.
