The Issue Whether the Petitioner's licensure status should be reduced from standard to conditional effective April 5, 2001.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing and regulating the operation of nursing home facilities, including ensuring that nursing homes are in compliance with criteria established by Florida statute. Chapter 400, Part II, Florida Statutes (2000).1 Beverly Fort Pierce, located in Fort Pierce, Florida, is a facility licensed to operate as a nursing home pursuant to the provisions of Chapter 400, Part II, Florida Statutes, and the rules found in Chapter 59A-4, Florida Administrative Code. AHCA conducted an annual relicensure survey of Beverly Fort Pierce from April 2 through April 5, 2001, ("April 5, 2001, survey") for the purpose of determining Beverly Fort Pierce's compliance with the state and federal criteria applicable to nursing homes. As is AHCA's usual practice, the alleged deficiencies found during the survey were reported on a form used by the federal Department of Health and Human Services, Health Care Financing Administration, HCFA-2567, which is commonly referred to as a "Form 2567." The deficiencies cited on the Form 2567 were identified in accordance with the criteria set forth in the State Operations Manual, which is published by the federal Health Care Financing Agency and provides guidance to state surveyors in interpreting and applying the federal regulations applicable to nursing homes receiving reimbursement from Medicaid and/or Medicare. The State Operations Manual, Guidance to Surveyors, includes "tag numbers" corresponding to provisions of the regulations found in Title 42, Chapter 483, Code of Federal Regulations. In the State Operations Manual, a "tag number" is associated with each provision of the federal regulations, and the intent of the regulation is set forth, together with guidelines, procedures, and probes which are to be used by the state surveyors in determining whether a particular regulation has been violated. The deficiencies cited on the Form 2567 completed as a result of the April 5, 2001, survey of Beverly Fort Pierce were each identified by the federal tag number, by a citation to the applicable provision of the Code of Federal Regulations, by a citation to the applicable Florida administrative rule, and by a Florida statutory classification as either a Class II or Class III deficiency. The Form 2567 included citations for three Class II deficiencies and for several Class III deficiencies. On May 18, 2001, AHCA returned to Beverly Fort Pierce and conducted the first "revisit survey" subsequent to the April 5, 2001, survey. The Form 2567 prepared for the May 18, 2001, revisit survey indicated that two deficiencies from the April 5, 2001, survey remained out of compliance. In its original five-count Administrative Complaint, dated December 3, 2001, AHCA identified as the bases for the reduction of Beverly Fort Pierce's licensure status to conditional two of the three Class II deficiencies and one of the several Class III deficiencies cited in the Form 2567 for the April 5, 2001, survey, as well as the two Class III deficiencies cited in the Form 2567 for the May 18, 2001, revisit survey. The Amended Administrative Complaint filed on the date of the hearing contained only three counts, and, at the hearing, AHCA voluntarily dismissed two of the three counts in the Amended Administrative Complaint. Accordingly, at the hearing, AHCA offered proof only with respect to the Class II deficiency identified in the Form 2567 for the April 5, 2001, survey based on the allegations that resident #13 developed pressure sores on her right heel, left heel, and right great toe while she was a resident at Beverly Fort Pierce.2 At the time of the April 5, 2001, survey, resident #13 was 92 years of age and had resided at Beverly Fort Pierce since November 21, 1995. Resident #13 was chosen by the survey team prior to the commencement of the survey as one of the residents to be observed during the team's visit to Beverly Fort Pierce. During the initial tour of the facility on April 2, 2001, the survey team leader, Judy Spiritu, visited resident #13's room and noticed that she was lying on her back in bed and was wearing heel protectors, although the one on the left leg was around her calf. Ms. Spiritu decided to observe resident #13 more closely during the survey, and she reviewed her clinical records and interviewed her caregivers. The Nurses Notes for resident #13 indicate that "pressure areas to bilateral heels" were noted by the care specialist at approximately 10:30 p.m. on March 1, 2001, and the resident's feet were elevated off of the bed. At 10:00 a.m. on March 2, 2001, resident #13's right heel and great toe were sprayed and wrapped and socks and heel protectors were applied. At 1:00 p.m. on March 2, 2001, blisters were noted on resident #13's right and left heels and right great toe; the blister on the right heel measured 3 centimeters by 3 centimeters, the blister on the top of the right great toe measured 0.5 centimeters by 0.5 centimeters, and the blister on her left heel measured 1 centimeter by 1 centimeter. The blisters were classified as Stage II ulcers, defined in Beverly Fort Pierce's records as "an ulceration in which partial thickness of skin is lost with involvement of the epidermal and/or dermal layers of skin."3 Resident #13 suffered from a number of serious medical problems, including seizure disorder, advanced Alzheimer's disease, carotid artery stenosis, a duodenal ulcer, hypertension, osteoporosis, arthritis, peripheral vascular disease, arterial sclerotic heart disease, and aortic heart disease. The Minimum Data Set dated February 15, 2001,4 indicated, among other things, that resident #13 was completely dependent on staff for turning and repositioning in bed, although she could move her legs, and that resident #13 was incontinent of bowel and bladder. Beverly Fort Pierce prepared a Problem Summary for resident #13 based upon the problems identified in the Minimum Data Set prepared February 15, 2001. Entries made in the Problem Summary for resident #13 on February 16 and 22, 2001, reflect that, over the previous 90 days, resident #13 had significant weight loss and decline in functioning with respect to activities of daily living and that she was totally dependent on staff for bed mobility.5 It was also noted in the Problem Summary entry for February 22, 2001, that resident #13 was at risk for the development of pressure ulcers because of incontinence, advanced Alzheimer's, and the decline in bed mobility. Beverly Fort Pierce had in place a Plan of Care for resident #13 for February 2001, and it was noted in the February 22, 2001, entry that resident #13 was at risk of developing pressure ulcers due to incontinence; it was further noted that, at the time, she had no pressure ulcers. A number of interventions were identified in the Plan of Care to deal with the risk that resident #13 would develop pressure ulcers, including use of a "pressure relieving mattress"; "protective/preventative skin care after each incontinent episode"; "monitor skin turgor for any area of concern"; "[i]ntervene as needed"; and "turn and reposition Q 2H [each two hours]." There is no mention in resident #13's Plan of Care that heel protectors should be used as an intervention until on or after March 2, 2001, when the Stage II ulcers on resident #13's heels and right great toe were first discovered. Although there is no indication in the Plan of Care of the date on which a pressure-relieving mattress was provided, Beverly Fort Pierce replaced all of its mattresses with pressure relieving-mattresses several years prior to the times material to this proceeding. Skin Assessment Forms completed for resident #13 for March and April 2001 documented that resident #13's skin was assessed weekly from March 5, 2001, through April 16, 2001, and the existence of blisters on the right and left heels and the right great toe were noted on the March 5, 2001, assessment.6 In addition, the Treatment Records for March and April 2001 carry a set of initials for each shift for most days through April 22, 2001, beside the entry of an order dated February 16, 1999, which required the following care: "Both siderails up when in bed due to alteration in safety awareness due to cognitive decline. Check q [each] 30 min[.] Release q2h [each two hours] for positioning and tolieting [sic]."7 It was not the policy of Beverly Fort Pierce to make a notation each time routine care such as turning and repositioning was provided, and the only explicit indication that resident #13 was turned and repositioned was an entry in the Nurses Notes for March 23, 2001.8 The first mention of the use of heel protectors was a notation in the Nurses Notes entered at 10:00 a.m. on March 2, 2001, and the use of heel protectors for resident #13 is often mentioned in the Nurses Notes after that date. A pressure ulcer is a sore that develops as a result of pressure to areas of the body referred to as pressure points, because the pressure diminishes the blood supply to the affected area and results in the death of the tissue; a pressure sore can develop in a matter of hours and may first appear as a Stage II blister because the damage to the tissue may initially occur beneath the surface of the skin. A stasis ulcer is an ulcer that develops on the lower extremities, most commonly in the "inner aspect of the lower third of the leg" and on the "lateral aspect of the leg."9 A stasis ulcer is related to chronic venous disease that inhibits the flow of blood from an area or to extensive arterial disease that inhibits the delivery of blood, oxygen, and nutrition to an area; a stasis ulcer develops over a period of time, not in one or two days, and is characterized by thickening, redness, and changes in the skin referred to as stasis dermatitis. Stasis ulcers develop as a result of a resident's clinical condition and are considered unavoidable. Based on the description in the Nurses Notes of resident #13's ulcers when they were first discovered and given the short time during which the ulcers developed, the ulcers on resident #13's heels and right great toe were pressure ulcers, not stasis ulcers,10 although the ulcers could have been caused in part by resident #13's vascular status.11 As noted in the entry on the Problem Summary of February 22, 2001, resident #13's medical condition had deteriorated during the previous 90 days, she had a number of serious medical problems, and she was very near the end of her life. A person with such morbidity factors is more likely to develop pressure ulcers despite being provided with appropriate routine preventive care and medical services than are persons with fewer or less serious medical problems. Although resident #13's clinical condition might have placed her at risk of developing pressure ulcers, the evidence presented by Beverly Fort Pierce establishes that the staff was aware that resident #13 was at risk of developing pressure ulcers and that certain preventive measures were included in her Plan of Care as a result of this risk, including providing her with a pressure-relieving mattress and turning and repositioning her in bed once every two hours. However, no requirement was included in the Plan of Care that heel protectors were to be used when resident #13 was in bed. Beverly Fort Pierce presented no evidence with respect to the preventive care that was actually provided to resident #13 prior to 10:30 p.m. on the night of March 1, 2001, when the pressure areas on resident #13's heels were noted. The evidence establishes that resident #13 was provided with a pressure-relieving mattress, but there is no evidence that she was turned and repositioned every two hours or that she was provided with heel protectors prior to 10:00 a.m. on March 2, 2001.12 Without proof of the preventive care that the staff provided resident #13, Beverly Fort Pierce has failed to establish that the pressure ulcers on resident #13's heels and right great toe were unavoidable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that Beverly Health and Rehabilitation Center, Fort Pierce, had a Class II deficiency at the time of the April 5, 2001, relicensure survey in that resident #13 developed pressure sores on her heels and right great toe that were not unavoidable; and Reducing the licensure status of Beverly Fort Pierce from standard to conditional, effective April 5, 2001, pursuant to Section 400.23(7)(b), Florida Statutes (2000). DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2002.
The Issue This case involved the treatment of and records maintained on Veronica Tuthill while she was a patient at Padgett's Nursing Home from May of 1979, until February, 1980. There were certain factual matters in dispute, to include: Did Veronica Tuthill receive preventive treatment for decubitus ulcers? Did Mrs. Tuthill have a physical-therapy assessment, and was it recorded? Were records on Mrs. Tuthill properly maintained by the nursing staff? Was the transfer document completely prepared when Mrs. Tuthill was transferred from Padgett's Nursing Home to Bay to Bay Nursing Home? Did Mrs. Tuthill receive proper treatment for decubitus ulcers? The primary legal issue is whether the Respondent, Rubin Padgett, is legally responsible for any of the deficiencies alleged. Because of the voluminous quantity of evidence produced and the many proposed findings, the findings herein are limited to those which were at issue. Significantly conflicting testimony regarding issues of fact have been indicated, together with the specific finding. The Board showed that there were certain specific instances when the nursing staff failed to chart or to chart completely the nursing care and treatment rendered Mrs. Tuthill, that a nursing staff member failed to properly complete the transfer document, and that Mrs. Tuthill developed decubitus ulcers while a patient at Padgett's Nursing Home. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence or not being a finding of fact. Only those materials received into evidence at hearing were considered as part of the record and formed the basis for these findings. FINDINGS OR FACT The Respondent, Rubin Padgett, is a licensed nursing home administrator and has extensive experience in this field, to include service on the state regulatory board. Respondent is not a registered nurse, medical doctor or related health care professional. Veronica Tuthill was brought to Florida by her daughter, Barbara Magee, who discovered her mother in a nursing home in Virginia. Mrs. Tuthill had been placed in the Virginia home by an unidentified daughter. Ms. Magee was vague about her mother's past medical history, and Mrs. Tuthill was apparently unable to provide her treating physicians with an adequate medical history. However, Mrs. Tuthill was in poor medical condition with contractures, a poorly healed and misaligned fractured hip, malnutrition, anemia, chronic pulmonary disease, arteriosclerotic heart disease and one decubitus ulcer (bedsore) when Ms. Magee brought her to Florida. On April 18, 1979, Mrs. Tuthill was admitted to Centro Espanol Hospital. She was given treatment for her various problems, to include transfusions and treatment for her decubitus ulcer. She was discharged from the hospital on May 10, 1979, with her condition improved; however, she still had the chronic problems described above and a decubitus ulcer the size of a quarter on her left hip. On May 10, 1979, Mrs. Tuthill was admitted to Padgett's Nursing Home (PNH). During her stay at PNH, Mrs. Tuthill's original decubitus ulcer broke down again. She also developed additional ulcers on her left and right buttocks and on her right foot. In many instances the nursing records for Mrs. Tuthill were not adequate because they did not fully and in every instance reflect the treatment and nursing care given the patient. These deficiencies included failure to chart the size, condition, etc., and treatment given Mrs. Tuthill's decubitus ulcers. However, it is specifically found that Mrs. Tuthill received the ordered treatment and preventive measures regularly taken to prevent the formation of decubitus ulcers. The development of decubitus ulcers on opposite sides of Mrs. Tuthill's body and buttocks while she was at PNH supports the testimony of the nursing staff treating her that she was turned properly as ordered, although said care was not always recorded in the nursing records. The records of treatments rendered also support the staff's testimony. A physical therapy assessment was performed and an appropriate entry charted in the nursing notes. The report of the therapist was not found in Mrs. Tuthill's file when it was reviewed by inspectors from the Department of Health and Rehabilitative Services (HRS). When this was reported to the director of nurses, she requested and received a copy of the report from the physical therapist which was placed in Mrs. Tuthill's file. This report reflects that Mrs. Tuthill was assessed for physical therapy and was determined not to be capable of receiving any benefit from physical therapy. Moreover, at the time of her assessment the results were reported to Mrs. Tuthill's physician, who discontinued his orders for physical therapy. This was annotated in the nursing notes at the time. Mrs. Tuthill was transferred from PNH to Bay to Bay Nursing Home on February 25, 1980. The transfer form on Mrs. Tuthill was not properly completed by the nursing staff at PNH at the time she was transferred to Bay to Bay Nursing Home. On March 5, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery on her decubitus ulcers. She was discharged on March 19, 1980, after the ulcers were debrided. On March 24, 1980, Mrs. Tuthill was again admitted for surgical closure of the ulcers as had originally been planned. She was discharged on April 7, 1980, with all her ulcers closed and healed. On August 10, 1980, Mrs. Tuthill was admitted to Centro Asturiano Hospital for surgery to close two decubitus ulcers which had developed during her stay at Bay to Bay Nursing Home. During her hospitalizations, Mrs. Tuthill received blood transfusions to increase her hemoglobin in order that she could receive anesthesia. This also improved her overall health, positively affecting her anemia, nutrition, pulmonary disease and arteriosclerotic circulatory problems, thereby assisting in the treatment of her ulcers. Expert medical testimony was conflicting on whether proper nursing care can prevent the formation of decubitus ulcers. It is specifically found that bedridden patients can develop decubitus ulcers while receiving the best of nursing care and treatment. This finding is supported by the fact that Mrs. Tuthill developed ulcers in both nursing homes and under two different treatment regimes. Expert medical testimony was conflicting on the appropriate medical treatment for decubitus ulcers. Mrs. Tuthill's medical treatment at PNH was within the limits of the conservative approach to treatment of decubitus ulcers. Her treating physician altered his treatment, increasing the strength of the medications and efforts to reduce and heal the patient's ulcers. Surgery is also an acceptable treatment for moderate-to-severe ulcers; however, Mrs. Tuthill's ulcers at the time of her discharge from PNH were at the moderate stage of development. Respondent had appointed a qualified medical director and a qualified nursing director, and had developed written procedures as required prior to Mrs. Tuthill's admission. These directors were directly responsible for the supervision of their particular services. Respondent was responsible for the overall administration of the nursing home; however, he was dependent upon the specific professional judgment and knowledge of his subordinate staff directors. Although PNH was inspected annually, and some failings regarding charting of medications were discovered and reported, these failings were not sufficient for HRS to deny licensure. Respondent took remedial action to improve the performance of his staff after these inspections. No evidence was introduced that there were significant departures from the standards of care established by the applicable rules and regulations or prevailing professional standards in the care of other patients. At the time the HRS personnel investigated Mrs. Tuthill's case, they did not investigate other patient files.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law that the Respondent, Rubin Padgett, is found not guilty of violating Rule 10D-29.38(1), (4), (8), (14) or (16), Florida Administrative Code, or Section 468.1755(1)(k) or (m), Florida Statutes, it is recommended that the Administrative Complaint against him be dismissed. DONE and ORDERED this 13th day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Edward P. de la Parte, Jr., Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Mildred Gardner, Executive Director Board of Nursing Home Administrators 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Conclusions DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 Having reviewed the Administrative Complaints and Notices of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Notices of Intent to Deny and Election of Rights forms to Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center. (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 Notice of Intent to Deny is superseded by this Agreement. 3. Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center shall pay the Agency $25,500.00. 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 4. Conditional licensure status is imposed on Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center beginning on April 12, 2013. ORDERED at Tallahassee, Florida, on this 22 day of Marek 2014. Dg 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 copy of this Final Order was served on the below-named persons by the method designated on this 3/4°—day of Mh re ‘A 2014. Richard Shoop, Agency Clerk 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) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Anna G. Small, Esq. Allen Dell, P.A. 202 South Rome Avenue Tampa, Florida 33606 (U.S. Mail) Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) aU DECOY T |} 7256 9006 F111 6922 4925 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CovenNOR Better Health Care for all Floridians SEA ORETARY. EK May 22, 2013 ADMINISTRATOR “cre RECEIVED LAKESHORE VILLAS HEALTH CARE CENTER CLLIFY INTAKE UNFFLICENSE NUMBER: 1282096 16002 LAKESHORE VILLA DR . FILE NUMBER: 62921 TAMPA, FL 33613 MAY & 9 2013 CASE #: 2013005471 Agency for Health NOTICE Of INFENTEO. DENY Dear Ms. Johnson: It is the decision of this Agency that Lakeshore Villas Health Care Center’s license renewal application for a nursing home be DENIED. The specific basis for the Agency’s decision is based on the following grounds: e Pursuant to section 400.121(3)(d), F.S., the Agency shall revoke or deny a nursing home license for two class I deficiencies arising from separate surveys within a 30 month period. Lakeshore Villas Health Care Center was cited for Class I deficiencies on October 13, 2011 and November 14, 2012. ¢ = Section 408.815(1), F.S., states that 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) a violation of this part, authorizing statutes, or applicable rules; and (d) a demonstrated pattern of deficient performance. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. for Adminjstraty (/C- Bernard E. Hudsds, Manager Long Term Care Unit Agen ce: Agency Clerk, Mail Stop 3 EXHIBIT 1 Visit AHCA online at ahca.myflorida.com 2727 Mahan Drive,MS#33 Tallahassee, Fiorida 32308 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: LAKESHORE VILLAS HEALTH CARE CENTER CASE NUMBER: 2013005471 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed Notice of Intent to Deny of the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within twenty-one (21) days of the day you receive the attached Notice of Intent_to Impose_a Fine, Administrative Complaint or any other proposed action by AHCA. If an 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, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please reply using this Election of Rights 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: 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 Fine, Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object and 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 proposed penalty, fine or action. OPTION TWO (2) __ I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, 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 facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. 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 twenty-one (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: Nursing Home License number: 1282096 Applicant Name: SENIOR CARE GROUP INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER Contact person: Name Title Address: Street and number City Zip Code Telephone No. ; Fax No. Email (optional) I 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: ‘Date: Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case Nos. 2013006534 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing June 4, 2013, and to impose administrative fines in the amount of two thousand five hundred dollars ($2,500.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2012). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and Support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1)(1), Fla. Stat. (2012). 8. That Florida law provides the following: “‘Practice of practical nursing’? means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2012). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “All physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4.107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2012). 12. That on June 4, 2013, the Agency completed a re-visit to a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where, inter alia, Respondent failed to implement nutritional interventions for a resident and failed to ensure that provided wound care services for the treatment of pressure ulcers for two (2) of seven (7) sampled residents, said failure being contrary to community standards and Respondent’s policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative observed resident number two hundred twenty-three (223) on May 31, 2013, at approximately 5:30 p.m. and noted a thin gentleman in a private room on a low bed with signs on the door/equipment which indicated the resident was on special infection control precautions. 15. That Petitioner’s representative reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The face sheet identified the resident's original admission date as May 7, 2012, and a most recent admission date as March 4, 2013. b. The resident was documented as a male, fifty-nine (59) years of age, suffering from the following diagnosis: pressure ulcer, paralysis agitans, hypertension, diabetes mellitus, anxiety, dementia without behavioral disturbance, chronic kidney disorder, depression, esophageal reflux, and Alzheimer's disease. c. A care plan was developed on May 16, 2013 as follows: i. Problem of: Actual skin breakdown related to unstageable to coccyx debrided surgically May 3, 2013; May 3, 2013 Right outer ankle open area Stage II. ii. Relevant care plan approaches were as follows: Treatment to coccyx/wound vac as ordered; Right ankle treatment as ordered; Monitor site for signs and symptoms of infection. d. Physician's orders included the following: i. May 17, 2013 Telephone Order: Continue Medihoney to right lateral ii. iil. ankle, change dressing every other day and as _ needed soiling/dislodgement. May 17, 2013, Telephone Order: Discontinue Santyl to sacral wound, discontinue Acticoat Flex to sacral wound; Apply Silver Foam to sacral wound, for wound vac dressing. May 24, 2013, Telephone Order: Sacral wound: Apply collagen matrix to wound bed; then apply KCI wound vac. ,change dressing every Monday, Wednesday, and Friday and as needed (PRN) soiling/dislodgement. The resident’s May 2013 Treatment Administration Record (TAR) reflected as follows: i, ii. The May 17, 2013, treatment to the sacral area was documented to Apply silver foam to sacral wound. Then black foam then wound vac every Monday, Wed, and Friday and PRN. This treatment was not documented as administered on May 22, 2013, Wednesday, as ordered. A new treatment of May 24, 2013, to the sacral wound, was noted to be done on the 7:00 a.m. - 3:00 p.m. shift. On Friday May 31, 2013, at approximately 6:30 p.m., the treatment for that day had not yet been initialed as administered. Respondent’s unit manager for the resident on May 31, 2013, at 6:40 p.m. confirmed to Petitioner’s representative that this treatment should have been done by the day shift nurse. Weekly wound documentation signed by the resident's unit manager and dated May 30, 2013, documented the following wound measurements for May 30, 2013: Sacrum - 8.3 cm x 8.0 cm x 1.6 cm with undermining at 12:00 and 4.5 cm deep; Ankle - 0.5 cm x 0.4 cm x 0.2 cm. A progress note by the Wound Care Advanced Registered Nurse Practitioner dated May 24, 2013, documented the exact same measurements as the May 30, 2013 unit manager's weekly wound documentation. 16. That as a result of documentation in the record of resident number two hundred twenty- three (223), which was lacking documented care to the sacral wound on May 22 and 23, 2013, and the documented unchanged appearance of the wound for six (6) days, Petitioner’s representative requested the opportunity to observe wound care of the resident on May 31, 2013 commencing at approximately 6:45 p.m. and noted as follows: a. An isolation sign was on the door with Personal Protection Equipment (PPE) hanging from a yellow door container. Prior review of the infection control log revealed that the resident was receiving contact isolation precautions for C. Diff (Clostridium Difficile). Respondent’s staff nurse “A” was at the bedside and did not have an isolation gown covering his uniform. A wound vacuum machine was on the floor, resting on a floor mat on the right side near the head of the bed. The machine tubing was attached. It was not connected to the secondary tubing that attaches to the resident. An over bed table against the wall contained new wound care supplies including foam and 4x4s needed for wound care. The supplies were open and appeared ready to use. The over bed table had no clean barrier and also resting on the table were the following: a partial glass of cranberry juice with some partially dried areas of juice noted under the wound vacuum packaging, a covered Styrofoam cup of water, eye glasses, newspaper, and a crossword puzzle book. Against the right wall were two large isolation waste bins; a red and a yellow one, with a partially consumed dinner tray on top of the red bin. Nurse “A” stated he had not completed the wound care today, and that the wound vacuum came off the sacral wound "by itself” earlier today and he had covered the wound with a temporary covering. There was a clear dressing over the sacral wound. It was not dated. Respondent’s unit manager of the 200 hall came into the room to assist with positioning the resident. Nurse “A” washed his hands, gloved, and removed a small adhesive dressing covering the right lateral ankle. The unit manager began to measure the ankle wound using a stick end of a Q tip and comparing it to a paper ruler. She referred to the ankle wound as a Deep Tissue Injury (DTI). It is listed as a pressure ulcer on the wound care consult's document dated May 23, 2013. The ankle wound was an indented, round area in the middle of the wound with a yellow/pink base. The periwound area was red/pink and appeared inflamed and slightly edematous, extending about one inch past the open area boarder. The unit manager stated that the periwound discoloration was "not there before" and she would call the doctor. Staff nurse “A” stated he disagreed with the periwound being inflamed and stated when using the medication "Medihoney"” the wound might look "a little irritated." The unit manager stated this was a change from the observation of a couple of days ago and stated the treatment with Medihoney had been ongoing for "about one month." The right ankle wound remained uncovered for the duration of the wound care, lasting over one and one half hours, including incontinence care provided by two aides, that required the turning and positioning of the resident. Staff nurse “A” changed his gloves, used hand gel, and moved to the right side of the bed to care for the sacral wound. The nurse stated he "measured him on Wednesday and the wound was around 9 x 9 centimeters (cm.) with undermining.” He stated he was recently rehired by the facility and had returned several days ago. He was a Registered Nurse, listed on the employee list as the Wound Nurse. He removed the old undated dressing which contained a 4 x 4 gauze saturated with pink serous drainage. Continuing with the same gloves he measured the wound with a paper tape and found the following: length= 9.0 cm; width, 6.5 cm; depth 3.5 om. The base of the wound was visible with about 20% yellow slough and 80 % granulation tissue. Using the same gloves, the nurse picked up a small flashlight and visualized the wound, set the flashlight down, picked up a Q tip and used the cotton end to evaluate the inside of the wound. He stated there was tunneling in two areas; one area of 1.7-2.0 cm and a bb. cc. dd. ee. ff. gg. ii. ji- I. second "around 4 o'clock" measuring 3.5 cm. The nurse measured the wound on his knees, with his uniform against the bed at times. Per a facility lab report, dated April 20, 2013, a wound culture revealed heavy growth of two bacteria, Escheriachia Coli and Proteus Mirabilis. The resident was treated with a course of the antibiotic Cipro. The resident was shaking with a Parkinsonian type tremor of the upper extremities. He was on his left side. He was alert and oriented. He denied pain at about 7:10 p.m. At about 7:10 p.m., the unit manager observed the wound vacuum on the floor. She picked it up, removed the tubing and discarded it. She initially placed it back on the floor mat, picked it up again and hung it from the bed rail. Staff nurse “A” then was observed to re-glove without sanitizing his hands, touched a red garbage bag on the bed with the clean gloves, and turned to the over bed table and began assembling his supplies, including clean 4x4s, with the same gloves. He removed his gloves, did not sanitize his hands, re-gloved, sprayed a 4 x 4 gauze with wound cleanser, and placed the 4x4 into the base of the wound. The periwound skin was red and blotchy with the perimeter extending over one inch past the open wound. There was no odor present. He again removed his gloves, did not sanitize, and re-gloved. He then moved the juice and personal items off the table, and moved some wound care supplies from the bed to the table. oo, pp. qq. SS. uu. He did not clean up the spilled/dried juice on the table. The nurse noted that the resident was incontinent of a small amount of soft bowel movement. He stopped the wound care and asked for the assistance of nurse aides to help with the incontinence care. Around 7:25 p.m., two aides came into the room wearing isolation apparel including gowns, gloves and masks. Staff nurse “A” stepped away from the bed, removed his gloves, washed his hands and left the room, stating he was going to "get wipes to wipe down the pump." The sacral wound remained covered with a 4x4 saturated in wound cleanser. The ankle wound remained uncovered. One of the aides stated they needed to remove the two rubber backed incontinence pads under the resident as they were not to be used with the special mattress under the resident. They rolled the resident side to side to remove the pads and again to provide incontinence care. The sacral wound remained covered with the unsecured 4x4 and the ankle wound remained uncovered during the incontinence care. At 7:35 p.m., staff nurse “A” returned wearing an isolation gown over his uniform. He began to clean the wound vacuum machine with a solution marked "Virasept." A hand written note on the pump spray stated "C. Diff." and large black labeling down the side stated "EXP: November 2011.” XX. yy: ZZ. bbb. cece. ddd. cece. fff. gee. After he cleaned the machine this surveyor asked about the expiration date. The unit manager from another unit appeared at the door and initially stated that was the manufacturing date, but then agreed EXP was the universal label for expiration and left to obtain another bottle of cleanser. Staff nurse “A” resumed wound care after he re-gloved and moved to the window side of the bed, attempted to reposition the resident alone, stated it was "better from the other side," and moved the over bed table again to the door side of the bed. He handled the spray bottle, the resident, the plugs to an outlet, and the air mattress controls at the bottom of the bed with the same gloves. At 7:50 p.m., nurse “A” disposed of his gloves, used hand gel, re-gloved and repositioned the resident on his left side, toward the window. At this time, the unit manager from another unit was assisting with positioning the resident, asked the resident if he was okay, and the resident stated he needed a pain pill. The resident stated his pain was nine (9) of ten (10). The unit manager of the 200 hall was informed of the need for a pain pill. At 7:57 p.m., staff nurse “A” removed the 4x4 gauze from the sacral wound, removed the right glove, did not use hand sanitizer, re-gloved the right hand, and sprayed wound cleanser on a clean 4x4. He removed both gloves and re-gloved without using hand sanitizer. He cleaned the periwound area with the wound cleanser gauze, removed his gloves, did not sanitize his hands, and continued. No bone was visible, but the wound base showed outlines of boney prominences. (An X-ray of the sacrum and coccyx were done on April 26, 11 iii. I. 000. Ppp. qaqa. SSS. uuu. 2013, to rule out osteomyelitis. There was none detected at that time.) Nurse “A” removed his gloves, used hand sanitizer, re-gloved and used several packages of skin prep to the area surrounding the wound. He removed his gloves, did not sanitize his hands, and re-gloved. He used a two inch clear tape to, as he said, "picture frame” the wound in the periwound area, At 8:07 p.m. the unit manager returned with the pain pill. . The resident, alert and oriented, stated again that the pain was nine (9) of ten (10). The unit manager gave him the pill, crushed in applesauce, and left the room without washing her hands. At 8:10 p.m., nurse “A” prepared the wound supplies by cutting the black foam piece used with the wound vacuum. He removed the gauze in the sacral wound base and, using his right index finger, covered with a clean gloved finger, he probed the sacral wound areas of tunneling near the proximal edge of the wound, toward the spine. He removed his gloves, used hand gel, re-gloved, and placed small pieces of white foam wedges along the areas of wound tunneling. He then placed the large piece of black foam into the wound, covering the wound bed. He covered the entire wound with clear plastic wound covering. He then removed his gloves, did not sanitize his hands, re-gloved and cut a hole in the center of the clear plastic wound cover for the wound vacuum site. He created a "foam bridge" across the right buttocks for the tubing for the wound vacuum, again removed his gloves, did not sanitize, and re-gloved to complete the wound care. The surveyor left the resident bedside at 8:25 p.m., one hour and forty minutes after the beginning of wound care. 17. That Petitioner’s representative further reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The resident had a history of Depressive Disorder and Parkinson's Disease (Paralysis Agitans), both of which could have contributed to his inability to express his anguish during this extended wound care experience. He was observed to be passive when asked if he was doing alright, until the time when he requested pain medication. The psychological overlay from this experience, outside the expectations for wound care of this type, are yet to be determined. The dependent state of this resident was clearly documented throughout the medical record. On May 14, 2013, the nurse practitioner wrote that the resident was "eating with staff assisting" and he "wants to go home." The nurse practitioner added that the resident was "more alert" but "slow to answer.” It is unknown whether the resident felt the degree of anguish or degradation others would feel in this situation. He seemed unable to express his feelings during this observation. The resident was fifty-four (54) years of age, seventy-two (72) inches tall, and had an admission weight of one hundred fifty-four (154) pounds. Weight change history for April to May 2013 reflected as follows: i. April 16, 2013 — one hundred forty-nine (149) pounds. vi. i. April 22, 2013 — one hundred forty-eight (148) pounds. iii. April 29, 2013 ~ one hundred forty-eight (148) pounds. May 13, 2013 — one hundred thirty-eight (138) pounds. May 27, 2013 — one hundred thirty-nine (139) pounds. May 30, 2013 — one hundred thirty-nine (139) pounds. Care plan dated May 17, 2013, provides as follows: i. iii. Problem: ...risk for alteration in nutrition/hydration related to texture modified diet. Cognitive impairment. - Relevant goal related to this nutrition concern: ...will not experience significant weight changes thru next review date of 8/13/13. Relevant approach was in place to assist with achieving this goal: Supplements as ordered. The registered dietitian's notes since development of this care plan revealed the following entries: i, May 17, 2013, 10:23 p.m. - Weight and Wound review: Weight down in past month, after having been stable for over a month -- now at 138 lbs, 78% of ideal body weight (IBW). This represents a significant weight loss of 7.5% in 30 days, likely r/t C-Diff. Skin: Stage II sacrum (This wound is actually a large stage 4 pressure ulcer). Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30/4; albumin from. 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquid--resident averages 50% - 100% at most meals. Also receives Med Pass 90 ml four times a day, Prostat 30 ml twice a day, and multi-vitamin (MVI) with minerals for extra nutrition support. 18, Recommend: (1) change Med Pass to 120 ml four times a day secondary to wound (2) change Prostat to 30 ml three times a day secondary to wound/C-Diff (3) clarification: MVI with minerals one daily by mouth secondary to wound (3) fortified foods three times a day with meals. ii. May 30, 2013, 7:29 p.m. - Weight/Wound review: Weight has stabilized in past 2 weeks--now at 139 Ibs, 81% of ideal body weight (IBW). This represents a significant weight loss of 6.1% in 30 days and 9.7% in 90 days--most recent loss likely related to C-Diff. Skin: Stage IV sacrum and open area right ankle. Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30.4; albumin from 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquids-- resident eats well at meals (50-100%). Also receives Med Pass 120 ml four times a day, Prostat 30 ml three times a day, MVI with minerals, and fortified foods for extra nutrition support. Recommend: (1) magic cup each day at lunch secondary to weight loss. j. A telephone physician order written on May 17, 2013 provided: 1. Change Med Pass to 120 ml four times a day; 2. Change Prostat to 30 ml three times a day. k. The resident’s May 2013 medication administration record (MAR) and treatment administration record (TAR) did not reflect the orders to increase the supplement of Med Pass and Prostat written on May 1, 2013, and therefore the supplements were not administered in accordance with the dietitian's recommendations or physician's orders. That Petitioner’s representative interviewed Respondent’ s registered dietitian on May 31, 2013 at 7:09 p.m. regarding resident number two hundred thirty-three (233) who indicated as follows when shown that the supplement orders from May 17, 2013, had not been implemented: "He needs everything we can give him and then some. I know the order was written to increase Med Pass and Prostat. I wrote it myself.” 19. That Petitioner’s representative interviewed Respondent’s director of nursing on June 1, 2013 at 10:30 a.m. advising of the infection control concerns noted during the observation the night before with staff nurse “A” and resident number two hundred thirty-three (233) to which the director responded that the nurse was recently rehired and was not, in fact, the wound nurse, and that nurse A, who was not in the building on this day, was to be monitoring wound healing and a desk nurse on the north wing. 20. That Petitioner’s representative requested an updated employee list as nurse “A” was listed as "wound nurse," and the second list recorded nurse “A” as a staff nurse. 21. That Petitioner’s representative reviewed Respondent’s records related to resident number seventy-three (73) during the survey and noted as follows a. The resident was readmitted on November 28, 2012, per the facility face sheet. b. Diagnoses listed on the Physician Order Sheet (POS) for June 2013 included dementia, cardiovascular accident (CVA), osteomyelitis and sacral decubitus. c. Weekly Wound Documentation forms dated January 4, through May 29, 2013, documented that the resident was receiving ongoing treatment for a Stage IV sacral pressure ulcer. d. Weekly Wound Documentation forms dated April 6 through May 30, 2013, showed additional treatment for an unstageable wound on the right ischium. e. Current wound orders per the June 2013 physician order sheet were as 16 follows: i, Sacrum - apply Medihoney, fill with Ca (calcium) alginate, cover with clear occlusive dressing. Change every Monday, Wednesday and Friday and PRN (as needed). ii. Right hip - apply silver hydrogel with collagen (wound size). Cover with ded (dry clean dressing). Change Monday, Wednesday and Friday and PRN. 22. That Petitioner’s representative requested the Opportunity to observe wound care of resident number seventy-three (73) on June 3, 2013 commencing at approximately 11:35 a.m. with Respondent’s employee “B,” the resident’s assigned nurse, and noted as follows: a. b. The resident was positioned on the left side. The nurse washed her hands, put on gloves and removed the existing dressing from the resident's right hip wound. A moderate amount of serous drainage was noted on the discarded dressing. Without washing hands or changing gloves, she removed and discarded the dressing from the sacral wound. No drainage was noted on the sacral dressing. The nurse then removed her gloves, washed her hands and put on clean gloves. She proceeded to clean the sacral wound with wound cleanser and discarded the soiled gauze. She then cleaned the right hip wound and discarded the soiled gauze. The nurse did not wash her hands and/or change gloves between cleaning the two separate wounds. i. The nurse continued the wound care as ordered by applying Medihoney and calcium alginate to the sacral wound which was then covered with a clear occlusive dressing. j. Without washing hands and/or changing gloves, the nurse completed the wound care for the right hip wound with silver hydrogel ointment and collagen. k. She covered the wound with a clean adhesive dressing. 1 She discarded the used supplies, removed her gloves and washed her hands. 23, That Petitioner’s representative interviewed Respondent’s employee “B” directly after the above described observation and the employee indicated as follows: a. When asked about facility policy and/or procedure regarding wound care for residents with multiple wounds, the nurse stated that it was "usually" the procedure to provide treatment to each wound area separately. b. She stated that, due to the resident's advanced age, she chose to dress the clean, dry sacral wound and proceed directly to the hip wound dressing, c. When asked about the possibility of cross contamination, she agreed that there was a potential for cross-contamination by not washing her hands and changing gloves between the two separate wound care treatments, 24. That Petitioner’s representative reviewed Respondent’s policy and procedure on wound care for dressing applications entitled “Skin and Wound Management, Dressings, Dry/Clean, Level III from the Nursing Services Policy and Procedure Manual, copyright 2001 MED-PASS, Inc. (Revised October 2010), and noted under a subheading titled “Steps in the Procedure” the following twenty-five (25) numbered items: a. Step one (1) - Clean a bedside stand and establish a clean field. b. Steps two (2) through six (6) - Provided additional instructions for assembling supplies and preparing the resident for the procedure. c. Step seven (7) - Wash and dry your hands thoroughly. d. Step eight (8) - Put on clean gloves. Loosen tape and remove soiled dressing. e. Step nine (9) - Pull glove over dressing and discard into plastic or biohazard bag. f. Step ten (10) - Wash and dry your hands thoroughly, g. Steps eleven (11) through thirteen (13) - Provided instructions for opening and arranging dressing supplies using clean technique. h. Step fourteen (14) - Put on clean gloves. i. Step fifteen (15) - Contained instructions for wound assessment. j. Step sixteen (16) - Cleanse the wound. Use a syringe for irrigation if ordered. If using gauze, use a clean gauze for each cleansing stroke. Clean from the least contaminated area to the most contaminated area (usually, from the center outward). k. Steps seventeen (17) through nineteen (19) - Provided instructions to complete the dressing application. L. Step twenty (20) - Remove disposable gloves and discard into designated container. Wash and dry your hands thoroughly. m. Steps twenty-one (21) through twenty-five (25) - Instructions to make the resident comfortable following completion of the procedure. 25. That Respondent’s employee “B” did not follow Respondent’s policy and procedure steps seven (7), eight (8), ten (10), and fourteen (14), where the employee failed to remove gloves, wash hands, and put on clean gloves between treating two separate wounds for resident 19 number seventy-three (73). 26. That on June 24, 2013 at 12:00 noon, Respondent’s nursing home administrator and director of nursing were again informed of the concerns with wound care for residents numbered two hundred twenty-three (223) and seventy-three (73). 27. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow physician orders, and failed to ensure that it maintained the facility premises and equipment and conduct its operations in a safe and sanitary manner including, but not limited to, the failure to follow Facility policy and procedure and community standards related to hand sanitation and glove use during wound care, the failure to implement contact procedures related to infection control, the failure to implement care planned interventions, and the failure to follow physician orders. 28. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 29. That Respondent was cited for an isolated Class II deficient practice. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of two thousand five hundred dollars ($2,500.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2012). 20 COUNT II 30. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 31. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part IT of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing June 4, 2013. Respectfully submitted this 2 day of July, 2013. f eof THomas J. Walsh II, Esquire FI Bar No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: 7, he Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, F Torida, 32308, (850) 412-3630. 21 RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8952 on July 2 & , 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. a Phorfas J. Walsh, II, Esquire “A / Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 22 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013006534 d/b/a Lakeshore Villas Health Care Center 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 Chapter120, 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)___—S—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) I 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: Date: Print Name: Title: Late fee/fine/AC FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT GOVERNOR July 8, 2013 LAKESHORE VILLAS HEALTH CARE CENTER 16002 LAKESHORE VILLA DR . TAMPA, FL 33613 Dear Administrator: ELIZABETH DUDEK SECRETARY RECEIVED GENERAL COUNSEL JUL 12 2013 Agency for Health Care Administration The attached license with Certificate #18248 is being issued for the operation of your facility. Please review it thoroughly to ensure that all information is correct and consistent with your records. If errors or omissions are noted, please make corrections on a copy and mail to: Agency for Health Care Administration Long Term Care Section, Mail Stop #33 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Issued for status change to Conditional. Sincerely, SFracey Weatherspoan for Kathy Munn Agency for Health Care Administration Division of Health Quality Assurance Enclosure ce: Medicaid Contract Management 2727 Mahan Drive, MS#33 Tallahassee, Florida 32308 Visit AHCA online at ahca.myflorida.com gouvmssy fy NC) GBI] JO UOISIAT ch, Areyoroeg Ajndaq ; €102/67/90 ‘LV NOLLVUd Xa vr, nk je? y €10¢/P0/90 ‘ALVC AALLOGAAA > : HONVHD SOLVIS . Sdad 6LT “IVLOL E19EE Td “WdNV.L Ud VTUA JAYOHSHAVT cOO9T YaLNAD. wav) HLTVEH SV TIA AYOHSAAVT ‘SUIMOT[OJ oy} oye1odo : 0} pozoyINe st sasusoy] sy] se pure ‘soIMeEIS BPO “TT ued ‘OOP JaideyD ur pozoyne ‘uoneENsIUUIpy sed YIeOPT 10,4 Aouesw ‘epHopy Jo a1eig.atp Aq poidope suopeyndor pue sopnz.oy) yatm porfdurcs sey “NI “dMOUD TAVD YOINAS ky) wWaryuoo oF st sIL TIVNOILIGNOD HINOH ONISYON AONVUNSSY ALIIVND HLTVaH AO NOISIAIG NOILVULSININGV dav HLTVAH YO AONADV BPO] JO 3381S 960C87IANS ‘# ASNSOIT 8¥C8l -# ALVOIMLLYEO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . vs. Case Nos. 2013007612 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing July 11, 2013, and to impose administrative fines in the amount of five thousand dollars ($5,000.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2013). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part Il, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein, 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency. § 400.022(1)(J), Fla. Stat. (2013). 8. That Florida law provides the following: “‘Practice of practical nursing’ means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2013). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “Ail physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4,107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2013). 12. That on July 11, 2013, the Agency completed a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where Respondent failed to, inter alia, ensure and provide appropriate interventions for bowel incontinence and a dislodged dressing to prevent fecal contamination of an open wound on a resident’s coccyx whose wound was then identified to be a stage II pressure ulcer that had tripled in size within one week from July 2 through 9, 2013, said failure being contrary to community standards and Respondent's policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a. b. The resident was originally admitted to the facility on April 7, 2005. Medical diagnoses included osteoarthritis, depression, Alzheimer's disease, general muscle weakness, and dysphagia. The most recent minimum data set, dated June 10, 2013; included the following: i. Section G documented the resident was total dependent upon one person physical assistance for toileting and personal hygiene and bed mobility. ii. Section M documented the resident had two stage II pressure ulcers. A care plan, last updated June 12, 2013, documented under “Problem” that the resident had a stage II pressure ulcer to the resident's left buttock. A "Weekly Wound Documentation" sheet documented on June 11, 2013, that the coccyx wound was measured to be 1.7cmx1.7emx0.1cm, and documented the wound as being a stage II pressure ulcer. A weekly wound measurement of July 2, 2013 documented the wound measured to be 1.2cmx0.7cmx0.3cm. A weekly wound measurement of July 9, 2013 documented the wound measured to be 4.0cmx4.1cmx with "unstageable tissue damage." 15. That on July 11, 2013 commencing at approximately 10:20 am., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. The resident was observed lying in bed. b. There was a strong odor of feces that was noted at first in the hall and persisted outside of the resident's room. c. Petitioner’s representative knocked on the door, and Respondent’s employee “A” opened the door and stated that she was the certified nurse assistant (CNA) that was assigned to the resident and was going to render incontinence care to the resident. d. The resident made no attempt to verbalize, with eyes were closed and both arms appearing contracted. e. The resident was lying on the left side to reveal a moderate amount of stool. f. Approximately one inch up from the stool, a soiled gauze dressing that was not attached to the resident's skin on the bottom was dangling, and had another piece of gauze protruding from underneath that appeared heavily soiled with drainage and brown discoloration on the edges. g. Employee “A” was observed to cleanse the stool using upward strokes, repeatedly using the same soiled cloth and cleansing upward from the resident's anal area toward the wound that was not protected by the dressing. h. After removing the stool, using the one soiled wash cloth, she then dried the area with a towel. 16. That Petitioner’s representative interviewed at approximately 10:45 am. on July 11, 2013, Respondent’s employee “B” regarding resident number one (1) and the employee indicated as follows: The certified nursing assistant did not tell her anything about the resident or any concerns that should have been reported to the nurse after she rendered incontinence care. Certified nursing assistants are expected to notify the nurse to "Check their skin" during incontinence care. 17. That on July 11, 2013 commencing at approximately 12:00 p.m., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. Respondent’s Unit Manager assisted with re-positioning the resident onto the right side so that the surveyor could observe the resident's coccyx area. The unit manager stated that the nurse had gone on break, and that no one had told her about any problem with the resident's dressing. She washed her hands and gloved. The soiled, partially attached dressing remained in place, now one hour and forty minutes after Employee “A” was observed to give the resident incontinence care and had observed that the dressing to the pressure ulcer was no longer intact. The bottom half of the outer dressing remained unsecured to the skin, and a gauze dressing protruding underneath was saturated with yellow drainage, and dots of darker brown substance on the edges. The unit manager was asked to remove the dressing so the surveyor could view the wound. g. The top adhesive part of the dressing was attempted to be removed by the unit manager, but only came loose with difficulty, and then the skin underneath was noted to be bright red and very fragile. h. The unit manager stated that she would make the wound care nurse aware and the dressing would be changed. 18. That Petitioner’s representative interviewed at approximately 1:15 p.m. on July 11, 2013, Respondent’s wound care nurse regarding resident number one (1) and the employee indicated as follows: a. The unit. manager had informed her of the problem with the resident's dressing. b. She confirmed that the dressing should be maintained to be intact at all times, and if it becomes dislodged, then the nurse, or the treatment/wound care nurse should be notified immediately. c. She confirmed that exposing the wound to fecal contamination can cause delayed healing or worsening of the wound. d. She stated that she had created a larger dressing so that the adhesive would not be in contact to the fragile skin. e. She confirmed that she had re-measured the wound on July 9, 2013, and notified the physician and the family that the wound had tripled in size within one week's time. 19. That Petitioner’s representative interviewed at approximately 2:40 p.m. on July 11, 2013, Respondent’s employee “D” regarding resident number one (1) and the employee indicated as follows: a. He is employed by the facility as a nurse, and most recently he has been a treatment and wound care nurse, although he has taken resident assignments as well. b. When asked what his expectations would be if a certified nursing assistant performed bowel incontinence care and observed that a dressing had become open or dislodged within the area of the bowel incontinence, he replied "I would expect them to clean the resident and them come to me immediately and let me know. If the dressing is open then that makes the wound susceptible to cross contamination, and maybe infection, and worsening of the wound. If it is coming off, then it is not going to be an effective dressing. The dressing should be secured on all sides of the wound to protect it and allow healing.” c. He also stated that the certified nursing assistant should not be wiping the feces toward the open wound to avoid bacterial contamination that could cause infection, impair healing, and worsen the pressure ulcer. 20. That Petitioner’s representative reviewed during the survey Respondent’s policy and procedure entitled "Diarrhea and Fecal Incontinence," last revised 8/11, and noted the following provisions: a. Step 6: "Wipe feces from the resident's skin." b. Step 11. "When evaluating the condition of the resident's skin, note the following ... c. Pressure ulcers." 21. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow ensure that incontinent care was provided to assure that no contamination of wounds occurs, to ensure incontinent care includes checks for skin condition and prompt attention given to presented issues, such as loose and soiled bandages, and to ensure effective bandaging of wounds to minimize risk of infection or contamination. 22. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 23. That Respondent was cited for an isolated Class II deficient practice. 24, That the fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. Section 400.23(8)*b), Florida Statutes (2013). 25. That Respondent was cited for a Class II deficient practice during a survey of June 4, 2013. See Attachment “A,” attached hereto and incorporated herein by reference. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2013). COUNT II 26. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 27. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2013). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing July 11, 2013. Respectfully submitted this t day of August, 2013. f J. Walsh IL, Esquire Flag Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8990 on August » 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. alsh, II, Esquire Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 11 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013007612 d/b/a Lakeshore Villas Health Care Center 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 Chapter120, 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) ___—Ss— 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(i), 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) 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, vs. ACHA No. 2013010196 License No. 1282096 SENIOR CARE GROUP, INC. d/b/a File No. 62921 _ LAKESHORE VILLAS HEALTH CARE CENTER, Provider Type: Nursing Home Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to impose administrative fines in the amount of $10,000.00, impose conditional licensure, and to impose survey fees of $6,000.00 with a 6 month survey cycle based upon Respondent being cited for one State Class I deficiency. PARTIES 1. The Agency is the licensing and regulatory authority that oversees skilled nursing facilities (also called nursing homes) and enforces the state statutes and rules governing such facilities. Ch. 408, Part I, Ch. 400, Part II, Fla. Stat; Ch. 59A-4, Fla. Admin. Code. The Agency is authorized to deny, suspend, or revoke a license, and impose administrative fines pursuant to sections 400.121, and 400.23, Florida Statutes, assign a conditional license pursuant to subsection 400.23(7), Florida Statutes, and assess costs related to the investigation and prosecution of this case pursuant to section 400.121, Florida Statutes EXHIBIT 1 2. The Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 3. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 4. Under Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities, and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1), Fla. Stat. (2013). 5. Under Florida law, every licensed facility shall comply with all applicable standards and rules of the agency and shall maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner. § 400.141(1)(h), Fla. Stat. (2013). 6. Under Florida law, a complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1) Reviewed no less than once every 3 months; 2) reviewed promptly after a significant change in the resident’s physical or mental condition; 3) revised as appropriate to assure the continued accuracy of the assessment. Rule 59A-4.109(1)(c), Florida Administrative Code. 7. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 8. On or about August 13, 2013, the Agency conducted a complaint survey of the Respondent. 9. That based upon observation, interviews, and the review of records, Respondent failed to ensure resident rights to dignity where Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for a sole resident currently residing in a facility with revoked Medicaid and Medicare certification. 10. That resident number one (1) was transferred into the Respondent facility after the facility transferred out all prior residents under the supervision of the Agency. 11. That resident number one (1), who was eighty-nine (89) years old, was the sole resident living in the facility at the time of this investigation. 12. That Petitioner’s representative observed resident number one (1) on August 13, 2013, sleeping on a mattress on the floor, covered with a sheet in room 111, a private room. There were no signs of incontinence. 13. That resident number one (1) was the only resident in the entire facility and the entire 179 bed facility was dark with closed rooms and common areas, except the small area of the 100 hall where the resident was residing. 14. That there was one licensed practical nurse giving the resident medications, one aide caring for the resident, and the interim Director of Nursing was seated at the desk. 15. That there was no sign on the door and no specific personal protection equipment indicating a need for isolation requiring a private room. 16. That Petitioner’s representative interviewed Respondent’s corporate nursing home administrator who indicated the following related to resident number one (1): a. 17. The resident was receiving one-on-one care and the resident’s activities included fishing in the pond in the front of the facility. The resident was admitted from a “sister” facility when the resident lost funding for Medicaid. This facility offered to “forgo” the private pay fees. The facility planned to transfer the resident back to the prior facility in “about a month.” The facility was able to offer the resident a private room and the resident “needed” a private room, but was unable to explain why. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a The facility face sheet revealed the resident had an admitting diagnosis of senile dementia. Other diagnoses listed included: late effects of cardiovascular disease/dysphasia, hypertension, BPH (benign prostate hypertrophy), anxiety state, hyperlipidemia, osteoporosis, history of UTI (urinary tract infection), coronary artery obstruction with infarct, and a history of falls. The billing section of the facility face sheet documented the resident was private pay. Medicaid and Medicare numbers were listed. The responsible party listed an adult child. A primary physician was listed. Current physician’s telephone orders stated to give “high calorie shakes q (every) dinner.” h. The resident’s weight on admission was 134.0 pounds, and the resident was 67 inches tall. i. It was unknown if the resident had lost weight since the transfer to this facility one week prior. 18. That Petitioner’s representative reviewed Respondent’s policy entitled “Charity Care,” signed on August 5, 2013, after Respondent’s transfer and discharge of all prior residents, including eight (8) or more private pay residents, and noted as follows: a. Under the section “Eligibility”, the facility policy stated that an “unpaid account balance will be considered for write off as charity care or adjustment based on demonstrated need for financial assistance.” b. “Medicaid eligible residents who are currently eligible for benefits, but were not eligible at the time of service, will automatically qualify for charity care at the appropriate level”. 19. That Respondent admitted resident number one (1) on August 6, 2013, after it had successfully discharged all of the residents on August 2, 2013, including both publically funded (Medicaid and Medicare) and private pay residents. 20. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 11:45 A.M. and noted as follows: a. The resident was brought into the dining room by the aide. b. The resident was served a regular diet consisting of: grilled cheese sandwich, soup, ice cream, cake, juice, and milk. c. The aide removed the crusts from the sandwich and placed it in front of the resident. 21, . The resident required verbal cues to take a bite, and refused the soup. . The resident did not consume much of the lunch, less than 50%. The aide said the resident had snacks earlier. . The resident said “hello” to the surveyor, but other responses were incoherent, though the resident did state that the resident was “not doing well,” but could not elaborate why. . The resident was seated in a wheelchair with bilateral leg splints on, covered with shoes, was clean and dry, and without evidence of incontinence. That Petitioner’s representative interviewed Respondent’s social worker related to resident number one (1) on August 13, 2013 at 11:40 A.M. and again at 2:00 P.M. and noted as follows: She had been the Business Office Manager at the sister facility, where the resident came from. . She knew the power of attorney for the resident from that position. She was promoted to social worker about one half years ago, and had worked for the corporation for about five (5) years. . When asked about the details of the transfer of the resident to this facility, the social worker stated that she received a call from the Corporate nursing home administrator and was asked to identify residents at the resident’s prior facility that were listed as either “Medicaid pending” or private pay. When asked to see if there was anyone interested in transferring to this facility,” she identified the resident because the resident’s Medicaid ended the end of July, 2013, and was pending for August, 2013. She did not recall the date of the call from the nursing home administrator, but thought it might have been August 5, 2013, three days after the discharge of all the residents on August 2, 2013. g. She did not know why the resident lost Medicaid benefits. h. She recalled that someone asked the state agency that processes benefits to please advise about the loss of benefits and she got a response that a Financial Release form was not received within sixty (60) days. i. She did not know who would have been responsible at the prior facility. j- The sister facility, where the resident had resided, had a social worker that was no longer there. k. She was now sending a list of forms to the adult child of the resident that were needed for Medicaid benefits to be reestablished. |. She thought the process took three (3) to four (4) weeks. m. When asked for a date when the process of reapplication started, she did not remember, but then stated an e-mail went out on August 5, 2013. n. When asked if the resident was the only one that fit the transfer criteria, she stated that there were others but resident number one (1) was the only one not receiving Skilled Services. o. When asked if there were plans to admit other residents to the facility, the social worker stated “no.” p. When asked what the facility transfer benefit to the resident was, the social worker stated she did not know. 22. That “Skilled Services” is a Medicare term used to define a specific group of medically necessary therapies that include physical therapy, occupational therapy, and speech therapy. 23. That Petitioner’s representative noted in the medical records of resident number one (1) a physician’s telephone order dated August 6, 2013 at 10:56 A.M., the day the resident was admitted to the facility, directing to discontinue physical therapy services, a skilled service. It was signed by an unknown provider. 24. That Petitioner’s representative reviewed a form provided to the surveyors and a copy of an email dated August 5, 2013, and noted as follows: a. 25. The email dated August 13, 2013 at 11:26 A.M. from an Adult Economic Services worker to the social worker stated to send encrypted emails only and contained an attached file and a link to access accounts. At the bottom of the printed email is another email dated August 5, 2013 from this social worker inquiring about the status of resident number one (1). A second page, stapled to the email trail, is a “Provider Inquiry Sheet”. Under client name, the entry included the first name and last initial of resident number one (1). The column titled “Main Inquiry Reason” contained and entry stating "Coverage Inquiry/SOC amount." The column titled "Provider Question" stated “The Business office has notified me that [resident number one (1)’s] coverage will end on July 31, 2013. Please advise why and if we can reapply for [gender pronoun] (not the gender of resident number one [1]) ICP Benefits [as] is Long Term Care resident requires custodial care.” The far right hand column stated “Please reapply as we didn’t get a recent financial release form within 60 days from the date of application (5/6/13).” That Petitioner’s representative telephonically interviewed the adult child of, and also the power of attorney for, resident number one (1) on August 13, 2013 at 1:05 P.M. and noted as follows: a. The adult child stated “nothing was said” about the billing during the transfer process from the resident’s prior facility. b. The adult child stated twice that the child had no concerns with care at the prior facility. c. The resident had no medical conditions that required a private room, and was in a three bed ward at the prior facility. d. The adult child was approached at the prior facility by the social worker, the same one that is at this facility, and asked about moving the resident to this facility. e. The adult child was told the resident would receive one-on-one staffing care, a private room, and was told the resident was the “only one there.” f. The adult child expected the resident to be in this facility “about one month” and then would go back to the prior facility. g. The resident was “in [] own world” (mentally) and went “up and down the halls” in the prior facility. h. The adult child was asked to bring in some documents today, August 13, 2013, for the Medicaid application. i. The adult child thought that the child had faxed in something a few months ago to the other facility and did not have any other information. j. There was no financial arrangement with this facility and the adult child was not expecting a bill. k. The facility asked for Social Security information today and the adult child was looking for it. 26. The adult child confirmed that the resident did not need a private room medically and was “just old,” about to turn 90 years old. . The adult child did not know if the resident had a different physician. The adult child did not know why the Medicaid was discontinued at the prior facility, had no Medicaid phone number, no workers name, and was unfamiliar with how to contact them. That Petitioner’s representative further reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: 27, a. b. The resident had a consent to treat form, dated August 6, 2013 at 11:45 am. Verbal permission was given by telephone from the resident’s adult child/ power of attorney. A “Do Not Resuscitate” form was dated November 27, 2012. A Statement of Incapacity was dated March 28, 2012. Power of attorney paperwork listed the adult child. A physician’s telephone order dated August 6, 2013 at 10:56 a.m., the day of the transfer, stated to discontinue Physical Therapy. There was no further information regarding why the resident was receiving these services. A telephone order dated August 8, 2013, stated to discontinue a Wanderguard that had been used related to elopement risk. There were no further details as to whether the elopement behaviors continued. An unsigned copy of the new physician’s orders was in the chart dated August 6, 2013 That the long term care unit, where resident number one (1) currently resided, was as follows: a. Two of the three hallways had rooms dark, doors closed, and hallway lights dimmed. b. Other areas of the facility, a large single story building with 179 beds, had darkened, cavernous hallways, and a rehabilitation dining area between two long term care units was dark, and contained plastic covered equipment on the tables. c. The building was clearly empty, other than this one resident and the three staff members on the unit for the resident in room 111. 28. ‘That later in the day on August 13, 2013, Respondent’s director of nursing stated that the new physician had not visited the resident at this facility; the physician at the prior facility did not come to this facility; and therefore the resident had to change physicians. 29. That on or about August 13, 2013, Petitioner’s representative reviewed a physician’s progress note, dated August 1, 2012, which revealed that resident number one qd) was unable to participate in the MMSE screening tool as the resident’s dementia was too far advanced 30. That Petitioner’s representative interviewed Respondent’s director of nursing and nursing home administrator regarding resident number one (1) on August 13, 2013 at 2:26 P.M. and noted as follows: a. When asked how the resident came to be admitted the facility, the administrator stated the last resident was discharged under Agency oversight on August 2, 2013, and she was on her way back to the corporate office when she received a call from corporate counsel that the facility could accept private pay residents. b. The administrator was notified that the facility would be accepting a private pay resident on August 5, 2013 from a sister facility. 31. The administrator indicated the resident had lost Medicaid and was moved to Medicaid pending as the family had not provided paperwork on time. . The administrator indicated that the corporation had the idea that as it litigated the license for this facility, it could assist this family with long term care costs, and assist this facility while it litigated its license. When asked if it was the facility's intention to have only one resident, the administrator stated that it would like to admit more, but it “took the one resident.” When asked if she felt it was an advantage to the facility during litigation to have a resident at the facility, the administrator shrugged and stated that she did not know. When asked if this facility was recruiting residents from external sources such as hospitals, the administrator stated “no.” When asked about the financial arrangements with the resident, the administrator they were preventing the resident’s discharge or the family incurring large debt. The administrator indicated that the charitable policy was not offered to other residents at the sister facility because they were able to fill the beds. The resident would have received a 30 day notice had the resident had stayed in the sister facility. . When asked if the administrator was aware if the sister facility provided services in a timely manner to maintain the resident’s Medicaid eligibility, the administrator stated that she was not aware of the responsibility of the sister facility staff related to the process. That Petitioner’s representative telephonically interviewed the physician of 12 resident number one (1) on August 13, 2013 at 2:45 P.M. and noted as follows: 32. a. b. He had not visited the resident since the resident’s admission on August 6, 2013. He made rounds on Wednesday and intended to see the resident on August 14, 2013. He was aware that the physician’s orders were not signed yet. The physician stated that the advanced registered nurse practitioner had seen the resident on an unknown date and they were trying to locate a progress note. That there was no note in the medical record of resident number one (1) which would indicate that the resident had been seen in this facility by either a Physician or a Nurse Practitioner. 33. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 2:40 P.M. and noted as follows: 34, a. The resident was in the hallway of the resident’s room, near the dining room, scooting the wheelchair with feet. The resident was using the hand rail on the left side to assist. An aide was nearby. The resident was confused with a vacant look to the face and eyes and did not respond to the surveyor's questions. The resident was unable, due to confusion, to express any anxiety, a diagnosed disorder, anguish, or satisfaction that the resident felt related to the new surroundings, new staff, and isolation due to the lack of any peers nearby. That on or about August 16, 2013, the Agency received and reviewed an eighty- six (86) page faxed document from Respondent and noted that page thirty-nine (39) was from a Multiple Data Set document, dated August 14, 2013, which stated “Factors that can Exacerbate Behavior” that contained four items checked: "Sleep Disturbances; Frustration due to problem communicating discomfort or unmet needs; Frustration, agitation R/T (related to) needs to urinate or have BM; Recent change, such as new admission, new unit, new care staff, withdrawal from a treatment program; and need for repositioning". 35. Since the resident had been moved to a new facility, had new caregivers, new surroundings, and a new physician, any of these factors could contribute to an unexpected decline. 36. That the above reflects Respondent’s failure to ensure resident rights to dignity where, inter alia, Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for one of the residents currently residing in a facility with revoked Medicaid and Medicare certification including but not limited to the absent of socialization with peers, the failure to provide skilled services, the failure to ensure timely physician transfer and evaluation, the failure to note and address care and services related to new surroundings, staff, and withdrawn treatments. 37, That under Florida law, a Class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. § 400.23(8)(a), Fla. Stat. (2013). 38. That a class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency. § 400.23(8)(a), Fla. Stat. (2013). 39. The Respondents actions or inactions constituted an isolated Class I violation. 40. The Agency cited the Respondent for a class I violation. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of ten thousand dollars ($10,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(a), Florida Statutes (2013). COUNT II 41. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 42. That Respondent has been cited with one (1) State Class I deficiency and therefore is subject to a six (6) month survey cycle for a period of two years and a survey fee of six thousand dollars ($6,000) pursuant to Section 400.19(3), Florida Statutes (2013). WHEREFORE, the Agency intends to impose a six (6) month survey cycle for a period of two years and impose a survey fee in the amount of six thousand dollars ($6,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to Section 400.19(3), Florida Statutes (2013). COUNT Il 43. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 44. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). 1S WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2013). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks a final order that: 1. Makes findings of fact and conclusions of law in favor of the Agency. 2. Imposes the relief sought in the Administrative Complaint. Respectfully submitted on this / / day of October, 2013. ; a ff a Thomag/J/Walsh Il, Esquire Florida Bat No. 566365 Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 Telephone: (727) 552-1525 Facsimile: (727) 552-1440 walsht@myflorida.ahca.com DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Fi Torida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has be: ed by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 9133 on October / /__, 2013 to Counsel for Petitioner, Anna G. Small, Esq., Allen Deli, P.A., 202 South Rome Avenue, Tampa, Florida 33606. Thomas J. Walsh, Il, Esquire f ye Copies furnished to: Patricia R. Caufman, FOM 17 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013010196 d/b/a Lakeshore Villas Health Care Center 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 Chapter120, 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)__—S—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) 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 LAKESHORE VILLAS HEALTH CARE CENTER, Petitioner, vs. STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. a STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. Case No. 13-395PH AHCA No. 2013005471 ACHA No. 2013006461 ACHA No. 2013006462 EXHIBIT 2 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS, SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. ; SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, — Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC, d/b/a LAKESHORE VILLAS HEAL TH CARE CENTER, Respondent. SETTLEMENT AGREEMENT DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Lakeshore”), 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, Lakeshore is a nursing home licensed pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes, Section 20.42, Florida Statutes and Chapter 59A-4, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Lakeshore, pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Lakeshore with a Notice of Intent to Deny dated May 22, 2013, in Agency case number 2013005471, notifying Lakeshore of the Agency's intent to deny the application for renewal of licensure for Lakeshore; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about April 12, 2013, (hereinafter “April Survey”), during which deficient practice was cited; and WHERMUAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the imposition of conditional licensure commencing April 12, 2013, in Case Number 2013006461; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about June 4, 2013, (hereinafter “June Survey”), during which deficient practice was cited; and WHEREAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the continued imposition of conditional licensure in Case Number 2013006462; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about July 26, 2013, in Agency case number 2013006534, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of two thousand five hundred dollars ($2,500.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about August 9; 2013, in Agency case number 2013007612, notifying Lakeshore of the Agency's intent to impose administrative sanctions of five thousand dollars ($5,000.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about October 16, 2013, in Agency case number 2013010196, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of ten thousand dollars ($10,000.00), the imposition of a six-month survey cycle and its six thousand dollar ($6,000.00) fee, and the continued imposition of conditional licensure; and WHEREAS, Lakeshore requested a formal administrative proceedings by selecting Option “3” on the Election of Rights form or by the filing of a Petition in Case Numbers 2013005471, 2013006534, 2013007612, and 2013010196; 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 WHEREAS, Lakeshore has sought inactive licensure for its license, license number 1282096; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1, All recitals herein ave 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, Lakeshore agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited {o, 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 they may be entitled, provided, however, that no agreement herein shall be deemed a waiver by the parties of their right to judicial enforcement of this Agreement. Lakeshore specifically waives the necessity of the drafting of or service of an Administrative Complaint(s) for the relief stipulated to in this Agreement as the same relates to the April Survey and June Survey. 4. Upon full execution of this Agreement, the parties agree as follows: a. Lakeshore shall pay nineteen thousand five hundred dollars ($19,500.00) in administrative fines and a survey fee of six thousand dollars ($6,000.00), for a total monetary assessment of twenty-five thousand five hundred dollars ($25,500.00) to the Agency within thirty (30) days of the entry of the Final Order. Respondent also accepts the imposition of a six-month survey cycle and conditional licensure status commencing April 12, 2013. b. Lakeshore shall ensure that, on or before October [, 2014, an independent purchaser not affiliated with Lakeshore shall file a “Change of Ownership” application seeking the licensure currently held by Lakeshore. Lakeshore shall ensure any such applicant possess, at a minimum, the following qualifications: i. The applicant, or a controlling interest’ of the applicant, shall have been licensed, or be a controlling interest in an entity or entities which has been licensed, to operate a nursing home in the State of Florida pursuant to the provisions of Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code, for a continuous period of at least three (3) years prior to the filing of the application. ii. The nursing home or nursing homes of the applicant, or the nursing home or nursing homes in which the controlling interest of applicant are licensed as nursing home(s) or in which the controlling interest of applicant holds a - controlling interest in the licensed nursing home(s), shall not have been subject to a Class | or a widespread Class II deficient practice” within a three (3) year period predating the filing of the application for “Change of Ownership” licensure. c. Effective at 5:00 p.m., December 31, 2014, the nursing home license of Lakeshore, license number 1282096, shall be deemed relinquished and cancelled, unless the Agency has issued a "Change of Ownership” license to another person or entity to operate the facility. This date may be extended in the sole discretion of the Agency. Absent such extension, the licensure of Lakeshore shall be deemed relinquished and ‘ “Controlling Interest,” as utilized herein, means as defined in Section 408.803(5), Florida Statutes (2013). 2 “Patterned and widespread Class 1 and Class Il deficient practices” are defined in Section 400,23(8), Florida Statutes (2013). cancelled without regard to the'status, substantive or legal, of any pending licensure application related to the license currently held by Lakeshore, 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. 6. By executing this Agreement, Lakeshore denies, and the Agency asserts the validity of the allegations raised in the administrative complaints and the Surveys referenced herein. No agreement made herein shall preclude the Agency from imposing a penalty against Lakeshore for any deficiency/violation of statute or rule identified in a future survey of Lakeshore, pursuant to the provisions of Chapters 400, Part II, 408, Part II, Florida Statutes, and Chapter S9A-4, Florida Administrative Code. In said event, Lakeshore retains the right to challenge the factual allegations related to the deficient practices/ violations alleged in the instant cause. 7. Lakeshore acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office fiom 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 complaints or Surveys, This agreement does not prohibit the Agency from taking action regarding Lakeshore’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shail enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases, 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. Lakeshore for itself and for Lakeshore’s related or resulting organizations, 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 attorneys 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 foram, including any claims arising out of this agreement, by or on behalf of Lakeshore 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 Lakeshore was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9,.070, Florida Administrative Code. 14, Lakeshore 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 Lakeshore in the Final Order, or any portion thereof, owed by Lakeshore to the Agency from any present or future funds owed to Lakeshore by the Agency, and that the Agency shall hold a lien against present and future funds owed to Lakeshore by the Agency for said amounts until paid. 15. 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, Health Quality Assurance Agency for Health Care Administration 2727 Mahan Drive, Building #1 Tallahassee, Florida 32308 DATED: 3 [vs Im F, Williams, General Counsel Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 43 Tallahassee, Florida 32308 Florida Bar No, 670731 DATED: 2G Anna Small, Esquire Allen Dell Counsel for Respondent 202 South Rome Avemue, Suite 100 Tampa, FL 33606 Florida Bar No. 17064 DATED: x04 Title: Name: Katherine idle 7s) Senior Care Group, Inc. DATED: _.3//i fl ¢ 4 7 y ff Thomas J. Walsh IJ, Senior Attorney Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330G St. Petersburg, Florida 33701 Florida Bar No. 566365 DATED: 5//Z, 7 !
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, the Respondent, Stacey Abo, was licensed in the State of Florida as a Registered Nurse (RN) holding license number 1457012. Presently, Respondent's license is in an inactive or lapsed status, having expired on March 31, 1987 without being renewed. Respondent was employed as a licensed RN at Memorial Hospital Memorial (Memorial) in Ormond Beach, Florida from May 1983 until her termination on July 5, 1985. During Respondent's tenure of employment at Memorial the Respondent: (a) was counseled on September 16, 1983 by Jackie Mirsky, Nursing Supervisor after it was reported to Mirsky by other nurses who did not testify at the hearing that they had smelled the odor of alcohol on Respondent's breath while she was on duty on September 6, 1983 and September 14, 1983; (b) was confronted by Sandra Peeples, charge nurse, on July 11, 1982 because Peeples suspected the odor of alcohol on Respondent's breath while she was on duty on June 11, 1984; (c) was terminated from her employment at Memorial on July 5, 1985, after it was reported to Johnette Vodenicker, Assistant Administrator, by another nurse, who did not testify at the hearing, that she had smelled the odor of alcohol on Respondent's breath on July 4, 1985 and, for having been counseled on September 16, 1983 and June 11, 1984 in the same regard. Peeples "thought" she smelled alcohol on Respondent's breath on June 11, 1984. Respondent admitted having "a beer" with lunch but there is insufficient evidence to show that Respondent had the odor of alcohol on her breath while on duty on September 6, 1983, September 14, 1983, July 4, 1985 or at any other time while she was on duty, other than June 11, 1984. The Respondent was employed as a licensed RN at Halifax Medical Center (Halifax) in Daytona Beach, Florida, from November, 1985 until her termination on October 8, 1986. Sometime in December, 1985, shortly after being employed at Halifax, the Respondent attempted suicide by ingesting several different drugs and, was hospitalized at Halifax for approximately two (2) weeks. Because of the suicide attempt, Respondent was referred to counseling. Respondent attended counselling session with Dr. Abed. It was understood that she could return to work on Dr. Abed's recommendation. Sometime around January 1, 1986 Respondent was allowed to return to work as a concentrated care unit nurse on the condition that Respondent continue counseling until released by Dr. Abed. There is insufficient evidence to establish how Halifax was to be notified of Respondent's continued counseling or the frequency of such notification. Halifax was never notified by Dr. Abed that Respondent had been released from treatment. Respondent's notification of her counseling with Dr. Abed was sporadic, however there was insufficient evidence to establish that such notice was not in accordance with the understanding between Halifax and the Respondent. There was insufficient evidence to establish the reason for Respondent's suicide attempt or that such suicide attempt resulted in Respondent being unable to practice nursing with reasonable skill and safety to patients except for the two (2) week period she underwent counseling with Dr. Abed. Respondent was reported to Judith Ann Clayton, nurse manager, intensive surgical center, Halifax Medical Center, for numerous errors which involved administering and monitoring "I.V's" to patients on May 15, 1986 (Petitioner's Exhibits No. 5- A) and May 19, 1986 (Petitioner's Exhibits 5-B through 5-E) by nurses who came on duty on the next shift immediately after Respondent`s shift. Somewhere around the time of the "I.V." incidents, Respondent was observed by Clayton as having the odor of alcohol on her breath while on duty. When confronted by Clayton, the Respondent admitted having had "a beer" with lunch. There is insufficient evidence to show if Respondent was ever counselled or disciplined by the hospital for this incident. As a result of these reported errors involving improper administration and monitoring of "I.V.`s" to patients and, having the odor of alcohol on her breath while on duty, Respondent was placed on medical leave of absence for two (2) months. During these two (2) months, Respondent was provided counseling by Halifax with the understanding that at the end of counseling Halifax would determine her status. During Respondent's medical leave of absence she attended counselling and was allowed to return to work with a limited work assignment on June 30, 1986 on the neurological surgical unit under the supervision of Jean R. Snodgrass. At the beginning, Respondent's duties did not include administering and monitoring "I.V.`s", administering other medication or signing off orders in the patient's chart. However, on October 8, 1986, Respondent was responsible for administering medication and administering and monitoring "I.V.`s". On October 8, 1986, Respondent, while fully responsible for fourteen (14) or fifteen (15) patients, left and did not return to her assigned station on the neurological surgical unit during her scheduled shift. Respondent failed to notify the proper authority or anyone else of her departure and without securing a replacement, thereby abandoning her patients. Due to Respondent's abandonment of her patients, Halifax terminated her employment on October 8, 1986. By abandoning her patients on October 8, 1986, Respondent failed to conform to minimum standards of acceptable and prevailing nursing practice and was not practicing nursing safely.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Board of Nursing enter a Final Order finding the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes and that Respondent's nursing license be suspended for a period of one (1) year, stay the suspension, place the Respondent on probation for a period of three (3) years under the condition that Respondent undergo psychological counseling and any other condition the Board may deem appropriate, and assess an administrative fine of $300.00 to be paid within ninety (90) days of the date of the Final Order. Respectfully submitted and entered this 16th day of October, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2232 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. 3.-4. Adopted in Finding of Fact 3. 5.-6. Rejected as hearsay that is uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 5. Adopted in Finding of Fact 11. Rejected as not supported by substantial competent evidence in the record. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9 but clarified. Adopted in Finding of Fact 7 but clarified. The first sentence is rejected as not supported by substantial competent evidence. The second sentence is rejected as hearsay uncorroborated by any substantial competent evidence. The third sentence is adopted in Finding of Fact 7. 14.-15. Rejected as hearsay uncorroborated by any substantial competent evidence. Adopted in Finding of Fact 12 but clarified. Adopted in Finding of Fact 13 but clarified. Rejected as not supported by any substantial competent evidence. Additionally, it is rejected as not being relevant or material. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Rejected as not supported by any substantial competent evidence. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stacey Abo 12 Riverdale Avenue R.R. No. 2 Ormond Beach, Florida 32074 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Exec. Director Board of Nursing Department of Professional Regulation Room 504, 111 E. Coastline Dr. Jacksonville, Florida 32201
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency”) regarding Certificate of Need (“CON”) Application No. 10202, which sought the establishment of a 100-bed acute care hospital in Broward County, District 10, that had been filed by East Florida Healthcare, LLC (“East Florida”), in the second batching cycle of 2013. The Agency preliminarily denied the application. On December 30, 2013, East Florida filed a petition for formal hearing contesting the denial, which was forwarded to the Division of Administrative Hearings (“DOAH”). In January 2014, the above-named intervenors filed motions to intervene, which were granted. On April 15, Filed April 22, 2014 4:57 PM Division of Administrative Hearings 2014, East Florida filed a notice of voluntary dismissal and the DOAH issued an order closing the file and relinquishing jurisdiction back to the Agency. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The denial of CON Application 10202 is upheld. ) ORDERED this 5@Any of pur . 2014, in Tallahassee, Florida. , Secretary Agency For Héalth Care Administration
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Case background and the parties: The Department is the state agency charged with the responsibility of issuing, revoking, or denying certificates of need for health care facilities or services. In that regard the Department has promulgated a rule for computing the need for new or additional community nursing home beds. The methodology of the rule (now Rule 10-5.036, Florida Administrative Code) calculates a specific number of beds anticipated to be needed for a given planning horizon. Once calculated, the Department publishes the calculated need for the district/subdistrict. Additional beds are generally not authorized if their approval would cause the total number of beds approved to exceed the number of beds calculated to be needed under the rule. The Department is not, however, obligated to approve beds so that the total number of beds calculated to be needed are approved, i.e. the Department may, as in this case, approve only a portion of those beds thought to be needed. In this case, the Department published a projected need for 165 additional beds in Orange County, Florida. That bed pool was calculated for the January, 1993 planning horizon and was published in the Florida Administrative Weekly on April 13, 1990. The calculated need published in this case has not been challenged and, therefore, was not at issue in these proceedings. At the time need was computed, there were 2,797 licensed beds in Orange County with an additional 505 approved nursing beds. The occupancy rate for the county was just under 93 percent. Following the publication of the need figures, letters of intent and applications were filed by health care providers seeking to obtain approvals for the available nursing beds. Coordinated Care, Inc. filed an application (CON #6287) for approval to develop a new, freestanding 120 bed community nursing home. The project was estimated to require a capital expenditure of $6,000,000 and would provide 24 beds in a subacute care unit. Florida Convalescent Centers, Inc. filed an application (CON #6292) for approval to develop a 60 bed addition to its existing facility known as Palm Garden of Orlando (CON #2991). If approved, the total number of nursing beds for that facility would then be 120 beds. The project cost for the expansion was estimated at $1,648,638. It was proposed that financing and management for the facility would be provided by National HealthCorp., Ltd. Marriott Retirement Communities, Inc. filed an application (CON #6290) for approval of a 39 bed community nursing home facility to be built as a component of a retirement community to be known as Brighton Gardens Nursing Center. The project cost for the Marriott proposal was $2,613,919. The Department's preliminary action in this case was to grant the CONs requested by Marriott and Florida Convalescent and to deny the application filed by Coordinated Care. Health Quest Management Corporation VII (Health Quest) operates an existing 120 bed nursing home in Orange County, Florida. That nursing home is known as Regents Park. Health Quest also operates Regents Woods, an adult congregate living facility, in Orange County. Health Quest opposes the proposed approval of CON #6290 for Marriott. Coordinated Care opposes the proposed approval of CON #6292 for Florida Convalescent and affirmatively alleges it is entitled, as the superior co-batched applicant, to the approval of its application. The petitions filed by Coordinated Care and Health Quest challenging the Department's preliminary action were timely. As to Case no. 90-7563: At the outset of the hearing, the parties stipulated that the following review criteria found in Section 381.705, Florida Statutes, were not at issue or were inapplicable to this case: Subsections 381.705(1)(d),(e),(f),(g),(j),(k),(m), and (2)(b) and (c). As to all other relevant criteria, Florida Convalescent and Coordinated Care were comparatively reviewed for CON approval by the Department and are so reviewed in this order. Florida Convalescent is a nursing home company currently operating twelve nursing homes in Florida, including Palm Garden of Orlando (Palm Garden). Palm Garden is a 60 bed facility that was constructed according to a 120 bed prototype. The facility was designed to have three sections: two 60 bed patient wings and a center, nonliving area for the operations of the facility. The kitchen, dining room area, therapy spaces, office spaces and open areas have already been constructed and are currently utilized for the existing 60 bed unit. The approval of the CON here would allow the completion of the final 60 bed wing. Palm Garden is managed by National Healthcorp, Ltd. (National), a nursing home company headquartered in Murfreesboro, Tennessee. National provides financial, developmental, and management services to nursing home companies in nine states. National prepared the CON application in this case on behalf of Florida Convalescent. If approved, National will continue to manage the Palm Garden facility in Orlando. As part of the 60 bed extension, Palm Garden will have specialized programs for Alzheimer's patients, subacute care, and special respite care. The approval of the 60 extension will allow these programs to be expanded and Florida Convalescent has indicated its willingness to accept as a condition of its CON an obligation to provide such special care programs. Currently, the profile of Palm Garden patients can be summarized as follows: 70 percent Medicaid, 25 percent private pay, and 5 percent Medicare. Florida Convalescent has agreed to commit to providing 58 percent of its services to Medicaid patients, and has indicated its willingness to accept as a condition of its CON such a provision. National has agreed to finance 1.6 million dollars of expenses for the Florida Convalescent proposal. The total project cost associated with the proposal is $3,333,119. Coordinated Care is a management company whose principals, Fred A. Lane and Patricia Lane, his wife, operate four nursing home facilities in Volusia County, Florida. If approved, Mr. Lane will administer Coordinated Care's facility in Orange County. It is proposed that the Coordinated Care facility will have 120 beds with a 24 bed subacute unit. The subacute unit will provide care for AIDS patients, ventilator dependent patients, and IV therapy. Additionally, the Coordinated Care proposal offers a program for mentally impaired patients including those with Alzheimer's and will also offer a respite care program. Coordinated Care is willing to accept as conditions on its certificate of need the following commitments: to exceed minimums on direct care staff to patient ratios by 10 percent; to provide service to AIDS patients; to offer 48 percent Medicaid and 15 percent Medicare; and to provide the subacute programs previously described. The Department's District 7, subdistrict Orange County, has a need for additional nursing home beds. The District 7 Local Health Plan cites recommendations regarding new nursing home beds for the District. Those recommendations speak to the needs of the District as a whole and are not ranked by priority of interest. In this case, both applicants, Coordinated Care and Florida Convalescent, will provide nursing services to AIDS patients. The Coordinated Care application recognized the need for a staff education program to provide AIDS training and committed the applicant to provide care for AIDS patients. The Florida Convalescent application did not address AIDS patients specifically because no AIDS patient has sought admission at the existing facility. Florida Convalescent will conduct staff education for AIDS patients, however, and will not deny admission to AIDS patients. Both Coordinated Care and Florida Convalescent will provide, and will commit to provide, specific levels of Medicaid patients. In this context, Florida Convalescent's history (63 percent) and proposed commitment (58 percent) to Medicaid utilization is greater than that offered by Coordinated Care (48 percent). With regard to indigent or charity care, Florida Convalescent currently provides such care at Palm Garden of Orlando. Both Coordinated Care and Florida Convalescent have demonstrated a commitment to high quality nursing home care. Palm Garden of Orlando is a superior rated nursing home and has, additionally, established a high quality service rating among homes managed by National. Similarly, the Lane family homes have experienced superior ratings and are committed to quality care. Both Coordinated Care and Florida Convalescent have demonstrated good track records for employee recruitment, training, and benefits. Additionally, the salary and bonus offers make both providers an attractive employer. Palm Garden of Orlando currently has ties to nursing programs in the Orlando area and is close geographically to Valencia Community College and the University of Central Florida. It is anticipated that Coordinated Care will be able to establish such ties in the Orlando area since it has done so in Volusia County. Both Florida Convalescent and Coordinated Care have demonstrated that their proposals in Orange County meet the State Health Plan preferences. By virtue of it being an existing provider, it is anticipated that Florida Convalescent will lower its administrative costs with the addition of 60 beds since there is recognized an economy of scale at that level. There is no demonstrated problem related to availability, accessibility, extent of utilization, or adequacy of nursing care services in this case. It is likely that resources, including health care manpower, will be available for project accomplishment and operation. Both applicants have demonstrated the immediate and long-term financial feasibility of the proposals. It is anticipated that the addition of 60 beds to the Florida Convalescent facility will have the least impact on the costs of providing health services and will promote cost-effectiveness. It is anticipated that the Florida Convalescent's proposal will best provide services to Medicaid patients and the medically indigent. The Florida Convalescent expansion is the most efficient and more appropriate alternative for providing nursing home services. The Florida Convalescent expansion will minimize the numbers of patients who were not admitted because of lack of beds at the Palm Garden facility. The Florida Convalescent expansion is consistent with other agencies and is in compliance with the local plans for providing long term care. The application submitted by Florida Convalescent was complete and its consolidated financial statement was consistent with the Department's rules and policies. The consolidated financial statement submitted by Florida Convalescent was prepared in accordance with generally accepted accounting principles and is sufficient for all purposes for which such statements are required by the Department. Florida Convalescent has demonstrated it has the financial resources to accomplish the project expansion and that the methods of construction, including equipment costs, are reasonable. On balance, when comparatively reviewed, the application submitted by Florida Convalescent is superior to the proposal submitted by Coordinated Care. As to Case No. 90-7565 Marriott filed an application for a certificate of need, designated by the Department CON # 6290, to construct a 39 bed nursing unit to be built in conjunction with an 133 bed adult congregate living facility (ACLF) in Orange County, Florida. The Marriott proposal in this case is based upon a design it has utilized before and is commonly known as a "Brighton Gardens" project. In accordance with Department statutes and rules, a certificate of need (CON) is necessary in order for Marriott to pursue the nursing component of its project. A CON is not required for the ACLF component. The Marriott project will be financed by its parent company. That Marriott entity has $400 million in cash or cash equivalents, generates $600 million annually in cash flow, and can easily afford the project addressed by this application. The Marriott proposal substantially meets the preferences and recommendations of the State and Local Health Plans. The Marriott proposal specifies 30 percent of its patient days will be available for Medicaid patients. Marriott is able to provide a high quality of care. The Marriott proposal will establish links with the nursing school community so that recruitments and staffing may be enhanced. Additionally, Marriott will offer continuing education for staff with reasonable salary and benefit opportunities. The costs of construction for the Marriott proposal are reasonable, allocated appropriately between the nursing facility and the ACLF, and meet or exceed all applicable code requirements. Both as to the manner of allocation and costs of allocation, Marriott has disclosed sufficient detail to adequately assess the nursing component of its proposed development. Marriott's proposed project both in the immediate and long-term is financially feasible. The granting of Marriott's proposal will not adversely affect Health Quest's ability to recruit personnel. The granting of Marriott's proposal will not adversely affect Health Quest's rate of occupancy. If Health Quest's occupancy should decrease following the approval of Marriott's request, such result is not attributable to the approval since Health Quest currently has a lower than district average for occupancy and since Health Quest currently charges more than the average amount charged by other nursing facilities. The number of beds requested by Marriott represents approximately 1 percent of the total number of beds currently approved in Orange County. Marriott's application substantially complies with all review criteria set forth in Chapter 381, Florida Statutes.
Recommendation Based on the foregoing, it is recommended that the Department of Health and Rehabilitative Services enter a final order approving the applications filed by Marriott and Florida Convalescent, denying the application of Coordinated Care, and dismissing the petition filed by Health Quest. RECOMMENDED this 31st day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-7563 and 90-7565 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. The first sentence of paragraph 6 is accepted; the remainder of the paragraph is not a statement of fact. Paragraphs 7 through 13 are accepted. With the deletion of the word "well" in the last sentence, paragraph 14 is accepted. Paragraph 15 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY MARRIOTT: Paragraphs 1 through 3 are accepted. With the clarification that at most 120 beds are in dispute, paragraph 4 is accepted. With regard to paragraph 5 it is accepted that Marriott's application is consistent with the state and local health plans; otherwise rejected as irrelevant. Paragraphs 6 through 8 are accepted. With regard to paragraph 9, it is rejected as argument or response to a position argued by Health Quest. The weight of the credible evidence showed that Marriott appropriately disclosed its projects and that it will be able to finance the project which is at issue. Paragraphs 10 through 19 are accepted. With the exception of the last sentence which is accepted; paragraph 20 is rejected as irrelevant. Paragraphs 21 through 23 are accepted. The first sentence of paragraph 24 is accepted, the remainder rejected as irrelevant. The first two sentences of paragraph 25 are accepted; the remainder rejected as irrelevant or argument. With the deletion of the words "by far" which are rejected as argument, paragraph 26 is accepted. With the deletion of the words "serious" and "numerous" which are rejected as contrary to the weight of the evidence, paragraph 27 is accepted. Paragraph 28 is rejected as contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraphs 31 through 33 are rejected as argument, contrary to the weight of the evidence, or irrelevant. It is not found, however, that Health Quest will suffer adversely from the approval of Marriott's application, to the contrary it will not. Paragraph 34 is accepted. Paragraphs 35 and 36 are rejected as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY HEALTH QUEST: Paragraphs 1 through 3 are accepted. Paragraph 4 (a) is accepted. Paragraphs 4 (b), 4 (c), and 4 (d) are rejected as contrary to the weight of the evidence. Paragraphs 5 and 6 are accepted. With regard to paragraph 7, it is rejected as irrelevant or argument; in this case Marriott has allocated and identified appropriately to establish the support areas needed for the nursing component of its proposal. Those areas have been computed in the cost and fairly and reasonably been considered in the financial feasibility of the project. To the extent addressed in the findings of fact or as accepted elsewhere in this appendix, paragraphs 8 through 36 are accepted, otherwise rejected as contrary to the weight of the evidence or irrelevant. It is specifically found that Marriott appropriately and accurately disclosed and allocated costs of the nursing facility and that those costs fairly depict the expenses reasonably expected to be incurred by this project. As to the suggestion by Health Quest that Marriott's proposal could not survive as a stand alone facility, such suggestion is rejected as irrelevant given the total circumstances and financial disclosures made in this case. Paragraph 37 is accepted. Paragraph 38 is rejected as contrary to the weight of the evidence, hearsay, or not supported by the evidence in this case. Paragraphs 39 through 147 are rejected as recitation of testimony, irrelevant, argument, contrary to the weight of credible evidence or not supported by the evidence in this case. Paragraph 148 is accepted. Paragraph 149 is rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 150 through 169 are rejected as irrelevant, contrary to the weight of the evidence, or not supported by the evidence. Paragraphs 170 through 179 are accepted. Paragraph 180 is rejected as irrelevant. Paragraphs 181 through 185 are rejected as irrelevant, argument, or contrary to the weight of the evidence. Paragraph 186 is accepted. Paragraph 187 is rejected as irrelevant. Paragraph 188 is accepted. Paragraphs 189 through 199 are rejected as contrary to the weight of the evidence, irrelevant, or argument. It is found that the allocations of space and costs in this case accurately describe the project and would allow for the financial feasibility of the nursing component. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY COORDINATED CARE: Paragraphs 1 through 3 are accepted. With regard to paragraph 4 it is accepted that the mathematical calculations are correct but such are not depositive of this case. Paragraph 5 is accepted. With the deletion of the phrase "Contrasted to the management style of FCC, which does not manage any of its facilities," which is rejected as argument or irrelevant, paragraph 6 is accepted. Paragraphs 7 through 21 are accepted. Paragraph 22 is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as irrelevant. Paragraph 24 is rejected as irrelevant. The first two sentences of paragraph 25 are accepted; the remainder is rejected as contrary to the weight of the evidence presented, irrelevant, or unsupported by the record. Paragraphs 26 through 31 are accepted. Paragraph 32 is rejected as repetitive. Paragraph 33 is rejected as repetitive. Paragraphs 34 through 36 are accepted. Paragraph 37 is rejected as repetitive. Paragraphs 38 through 44 are rejected as contrary to the weight of the evidence, irrelevant, or, where accurate as to fact, considered to be not dispositive of the issues of this case. Paragraph 45 is accepted. Paragraph 46 is accepted (assuming numbers have been rounded off). Paragraph 47 is rejected as contrary to the weight of the evidence. Paragraphs 48 and 49 are accepted. Paragraphs 50 through 64 are rejected as irrelevant, contrary to the weight of the evidence presented or argument. Paragraphs 65 and 66 are accepted. Paragraphs 67 through 72 are rejected as argument, irrelevant, or contrary to the weight of the evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY FLORIDA CONVALESCENT CENTERS: Paragraphs 1 through 19 are accepted. Paragraph 20 is rejected as argument. Paragraphs 21 through 24 are accepted. Paragraph 25 and 26 are rejected to the extent that they suggest the Palm Garden facility enjoys a higher quality of care than the Lane family facilities. Both applicants provide a high quality of care and must be ranked equally in this regard. It is expected that the expansion of Palm Garden will assure that facility's continued high care and only to that extent has Palm Garden been considered the better applicant in this batch. Paragraph 27 is accepted to the extent it details the history of Florida Convalescent, otherwise rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 28 and 29 are rejected as irrelevant. Paragraph 30 is accepted to the extent that it suggests both Florida Convalescent and Coordinated Care have established good recruitment and training programs, etc. To the extent that Florida Convalescent is already established in the Orlando community it is advantaged; but, it is expected that Coordinated Care will be able to duplicate its efforts and successes (as in Volusia) in the Orange County venue. It is because it has an established program that Florida Convalescent gets the nod in this category. Paragraphs 31 through 38 are accepted. Paragraph 39 is accepted to the extent that it states both applicants have superior programs and quality of care; otherwise, rejected as contrary to the weight of the evidence. With regard to paragraphs 40 through 42 it is found that both applicants meet the preferences addressed in the state health plan and that neither ranks higher in the categories listed in these paragraphs. Paragraphs 43 through 45 are accepted. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraphs 47 (all subparts) through 52 are accepted. The first sentence of paragraph 53 is accepted; the remainder is rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 54 through 74 are accepted. Paragraphs 75 through 91 are rejected as contrary to the weight of the evidence or irrelevant. Paragraphs 92 through 109 are accepted. COPIES FURNISHED: James M. Barclay Theodore E. Mack Cobb Cole & Bell 315 South Calhoun Street Suite 500 Tallahassee, Florida 32301 Elizabeth McArthur Aurell, Radey, Hinkle & Thomas 101 N. Monroe Street Suite 1000 Post Office Drawer 11307 Tallahassee, Florida 32302 Charles M. Loeser 315 West Jefferson Boulevard South Bend, Indiana 46601 Darrell White Gerald B. Sternstein McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. Post Office Box 2174 Tallahassee, Florida 32316-2174 Donna Stinson Thomas M. Beason Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, Florida 32301 Richard Patterson Assistant General Counsel Department of Health and Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
