Findings Of Fact Mrs. Martha Truitt owned a five pound Chihuahua female named Hale's Dixie Dynamite which she purchased for $624.00 in 1977. At that time Dixie was one year old. She was later bred in August, 1978. Mrs. Truitt has been a Chihuahua breeder for seven to eight years. She has seen approximately fifteen to twenty litters of dogs delivered and considers herself an expert breeder. At the hearing, Mrs. Truitt, as a breeder, displayed some ill feeling toward doctors of veterinary medicine (vets). It was also apparent from the testimony of the expert witnesses, that the ill feelings were somewhat reciprocated by the vets. There is apparent professional jealousy over who, the breeder or the vet, knows the most about the proper care of dogs. On October 2, 1978, Mrs. Truitt took Dixie to Dr. Chatham for an ear mite examination. At the conclusion of the examination, Mrs. Truitt asked Dr. Chatham if he could be available at the end of the month because Dixie was pregnant and was expected to deliver then. Dr. Chatham said he would be available if necessary. There was no firm understanding reached between the parties on exactly what "being available" meant to either person. Mrs. Truitt did not hire Dr. Chatham as an obstetrician for Dixie and he was not requested to give her any prenatal care. There was no further contact between parties until October 24, 1978. Dixie received no prenatal care from any vet. Mrs. Truitt relied on her experience as a breeder to give Dixie the care she thought appropriate. Dr. Chatham has practiced veterinary medicine in Auburndale, Florida, since 1977. In his practice he has performed approximately 40 Caesarian sections in dogs and has seen several hundred dystocia (abnormal delivery) cases. In the afternoon of October 24, 1978, Dixie went into mild labor. Mrs. Truitt called Dr. Chatham in the late afternoon or early evening to tell him of Dixie's progress. Again at midnight or 1:00 A.M., on October 25, Mrs. Truitt called Dr. Chatham. She had observed Dixie begin strong contractions and the aminon had broken discharging its "water." She explained to Dr. Chatham that Dixie was now in hard labor and asked for advice. He said to watch the dog and call him back in one hour if any problems developed. Around 3:00 A.M., Mrs. Truitt again called Dr. Chatham. She was advised to examine Dixie to determine if the first puppy had presented itself in the birth canal. During this conversation Mrs. Truitt requested Dr. Chatham to immediately examine Dixie. He did not believe that was necessary as he knew from past experience that a dog could safely remain in labor for more than twelve (12) hours. He did say that if the first puppy had not been born by 7:30 A.M., in the morning to bring Dixie to his office and he would examine her to determine if a Caesarian section would be necessary. At 7:30 A.M., Mrs. Truitt arrived at Dr. Chatham's Office with Dixie. He was not there upon her arrival. She contacted him through his answering service and by 9:30 A.M., he had arrived and performed the Caesarian section on Dixie and delivered three (3) live puppies. By noon of that day Mrs. Truitt took Dixie home. Unfortunately the little dog died on the next day, October 26, 1978. When a Caesarian section should be performed on a laboring dog depends upon a variety of factors. If all other factors are equal, a small dog does not have the capability to labor safely as long as a large dog. If the dog has a discolored vaginal discharge then an immediate Caesarian is indicated. Caesarian sections are a moderately dangerous operation because the mother dog is already under stress from the labor and from giving life support to her puppies. For that reason, it is not advisable without considerable necessity to add the additional trauma of a Caesarian to her already burdened state. Additionally, vets are reluctant to perform a Caesarian section at night if, like Dr. Chatham, they do not have staff available then to assist them in the operation. Because of the foregoing factors it is good veterinary practice to allow a mother dog to labor at least twelve (12) hours before considering a Caesarian section. Only 25 to 30 percent of dystocia cases eventually do require a Caesarian. The balance of the cases work themselves out without any necessity of surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Second Amended Administrative Complaint be dismissed. DONE and ENTERED this 8th day of September, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1980. COPIES FURNISHED: Bert J. Harris, III, Esquire BOYD HARRIS & SMITH P.A. Suite 210, Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302 William F. Casler, Sr., Esquire 6795 Gulf Boulevard St. Petersburg Beach, Florida 33706 Ken Oertel, Esquire General Counsel Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent violated Subsections 480.046(1)(e), 480.046(1)(o), and 480.047(1)(c), Florida Statutes (2001), and Florida Administrative Code Rules 64B7-26.010(1) and 64B7-26.010(2), and, if so, what discipline should be imposed.
Findings Of Fact Longwood is, and at all times material to this proceeding, a licensed massage establishment in the State of Florida, having been issued License No. MM 007785. The establishment is located at 420 East State Road 434, Suite E, Longwood, Florida. David Tunno is the owner of Longwood. He applied for Longwood's massage establishment license and is responsible for ensuring that Longwood complies with the statutes and rules governing massage establishments in Florida. David Tunno's father, Ron Tunno, visits Longwood to assist David Tunno in some of the massage establishment's business activities. Although Ron Tunno is not an employee of Longwood, he performs such duties as answering the telephones, signing receipts, placing advertising orders and providing advice to David Tunno regarding some business decisions. Longwood employed Maria Graffius to provide massage therapy for approximately two years. At the time of her employment with Longwood, Ms. Graffius was a Florida-licensed massage therapist. While Ms. Graffius was employed at Longwood, she engaged in sexual activities with some of Longwood's clients. She masturbated some of the clients and performed oral sex on some of the clients. In exchange for her sexual favors, clients would tip her with cash or food. Ron Tunno told Ms. Graffius not to be shy with the clients. She took his remark to mean that she should have sex with clients if they requested it. During the same conversation, Ron Tunno told her to flush down the toilet any condoms that she used at Longwood. Ms. Graffius supplied her own condoms and kept them in the glove compartment of her car. Ms. Graffius was not certain whether David Tunno knew that she was engaging in sexual activities with Longwood's clients. David Tunno never told her to perform sexual acts on the clients. Sharon Tallon, formerly known as Sharon McWhorter, answered a help-wanted advertisement from Longwood, stating "Friendly faces wanted for local massage studio." On May 21, 2002, Ms. Tallon called Longwood and spoke to Ron Tunno, who asked her to meet him for a private interview. Ron Tunno took Ms. Tallon and her friend to a small, hourly motel, where he asked Ms. Tallon to give him a massage. Ms. Tallon gave him a massage, and he told her that some of the customers may want her to perform sexual acts, such as oral sex or masturbation. She told him that she did not have a problem with that, and he asked her to perform oral sex on him so that he could tell if she was good at what she did. Ms. Tallon complied with his request. Apparently Ms. Tallon met Ron Tunno's standards because he hired her to work at Longwood. She went to work at Longwood on the same day as her private interview. Ms. Tallon did not have a license to practice massage therapy. When Ms. Tallon got to Longwood, Ron Tunno introduced her to David Tunno and showed her around the establishment. Ron Tunno showed her how to prepare a room for the client. He advised Ms. Tallon that she must supply her own condoms and that she must flush used condoms down the toilet. Ms. Tallon worked at Longwood for two days, during which time she performed oral sex on four clients. She was paid $220 in cash by Longwood for her services. She also gave one massage which did not involve sexual activity. Not only did Ms. Tallon engage in sexual acts with clients, but she also engaged in sexual acts with David Tunno and Ron Tunno while working at Longwood. Ms. Tallon gave David Tunno a massage, he requested that she perform oral sex on him, and she complied. On her second day of employment at Longwood, Ms. Tallon had intercourse with Ron Tallon at Longwood. Ms. Tallon contacted the Longwood Police Department and advised them of her activities at Longwood. She was advised that she would be given immunity for her acts, and she assisted the police by making a controlled telephone call to Ron Tunno and by wearing a wire transmitter while talking to Ron Tunno at Longwood. On February 21, 2003, the Seminole County Sheriff's Office, having obtained a search warrant, raided Longwood. In one of the massage rooms, the sheriff's officers found Jennifer Wilcox and a client. The evidence did not establish that Ms. Wilcox was actually giving a massage or that she had given a massage to the client. Ms. Wilcox was not a licensed massage therapist at the time. Ms. Wilcox was enrolled in school, training to be a massage therapist. She claimed that she was at Longwood to study and not to give massages. The sheriff's officers did not find any study materials on the premises. In another massage room, the sheriff's officers found Ms. Graffius with a client. In one of the rooms, the sheriff's officers found a small round pillow with a zippered opening in the back. Inside the pillow were two condoms. The officers also observed a substance on some of the towels and a sheet. The substance resembled semen, but no evidence was presented to establish that the substance was semen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Longwood Massage & Tanning Studio violated Subsections 480.046(1)(e), 480.046(1)(o), and 480.047(1)(c), Florida Statutes (2001), and Florida Administrative Code Rules 64B7-26.010(1) and (2), and revoking Longwood Massage & Tanning Studio's massage establishment license. DONE AND ENTERED this 30th day of December, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of December, 2004.
Conclusions Having reviewed the Administrative Complaints, the Notice 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 Paradise Rest, Inc. 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, Notice of Intent to Deny, and Election of Rights forms to Paradise Rest, Inc. (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: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. Filed October 14, 2014 2:09 PM Division of Administrative Hearings 5. Paradise Rest, Inc. shall pay the Agency $5,700.00. 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 180 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 ORDERED at Tallahassee, Florida, on this {0 day of Octoba- , 2014. rhe Elizabeth fea Agency forHealth Qare Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. 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 of this Final Ones ee below-named persons by the method designated on this LE ay 0 , 2014. Richard Shoop, Agency CTé Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) John D. C. Newton II Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Catherine Anne Avery, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Paul Brown, Supervisor Local Field Office Agency for Health Care Administrator (Electronic Mail) Theodore E. Mack, Esq. Powell & Mack 3700 Bellwood Drive Tallahassee, Florida 32303 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA Nos. 2013010760 2013011244 PARADISE REST, INC. d/b/a PARADISE REST, Respondent. / ADMINISTRATIVE COMPLAINT The Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), files this Administrative Complaint against the Respondent, Paradise Rest, Inc. d/b/a Paradise Rest (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine of three thousand dollars ($3,000.00) against an assisted living facility based upon five (5) uncorrected Class Ill deficiencies and one (1) unclassified deficient practice. PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities. Ch. 408, Part II, Ch. 429, Part I, Fla. Stat. (2013); Ch. S8A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing EXHIBIT “oy” statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2013). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2013). 2. The Respondent was issued a license by the Agency to operate a sixteen (16) bed assisted living facility (“the Facility”), license number 8065, at 1207 30 Avenue East, Bradenton, Florida 34208, and was at all times material required to comply with the applicable statutes and rules governing assisted living facilities. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24- hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, assisted living facilities provide supervision, assistance with personal care and supportive services, as well as assistance with, or administration of, medications to residents who require such services. COUNTI Criminal Background Screening 3. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2012). 4. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2012). 5. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under Chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the Agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If the fingerprints of such a person are not retained by the Department of Law Enforcement under Section 943.05(2)(g), the person must file a complete set of fingerprints with the Agency and the Agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints may be retained by the Department of Law Enforcement under Section 943.05(2)(g). The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until the person’s background screening results are retained in the clearinghouse created under section 435.12, the Agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Family Services, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under Chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in section 435.04, and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an affidavit of compliance with the provisions of Chapter 435 and this section using forms provided by the Agency. § 408.809(2), Fla. Stat. (2012). 6. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2012). 7. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2012). 8. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. § 435.06(2)(a)-(d), Fla. Stat. (2012). 9. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. § 435.06(3), Fla. Stat. (2012). 10. Under Florida law, all staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, FS. ... Rule 58A-5.019(3)(a), Florida Administrative Code. 11. Under Florida law, “Staff means any person employed by a facility; or contracting with a facility to provide direct or indirect services to residents; or employees of firms under contract to the facility to provide direct or indirect services to residents when present in the facility. The term includes volunteers performing any service which counts toward meeting any staffing requirement of this rule chapter. Rule 58A-5.0131(34), Florida Administrative Code. 12. Onor about May 22, 2013, the Agency completed a compliant survey of the Respondent. 13. Based upon record review and interview, the Respondents failed to ensure that the Facility staff had the required background screening or exemption for one (1) of seven (7) sampled staff members, the same being contrary to law. 14. That Petitioner’s representative reviewed on May 22, 2013, Respondent’s provided employee schedules for May and June, 2013, and noted that employee “G” was not listed on the schedules. 15. That Petitioner’s representative interviewed resident number twelve (12) on May 22, 2013, who indicated that employee “G” worked at the Respondent facility and believed employee “G” to be the individual who cleaned the facility. 16. That Petitioner’s representative interviewed resident number four (4) on May 22, 2013, who indicated as follows: a. Employee “G” was employed by the facility and did cleaning and sometimes cooked. b. The resident did not care for employee “G” as the employee had taken light bulbs out of the lamp of the resident’s room because the bulbs were needed elsewhere in the facility. 17. That Petitioner’s representative interviewed resident number seven (7) on May 22, 2013, who indicated as follows: a. The day of the interview was the “day off’ for employee “G.” b. Employee “G” worked at the facility regularly. c. Employee “G” cleaned the entire facility, including resident rooms, and sometimes helped cook. d. Employee “G” had sometimes transported the resident to places the resident needed to go. e. Some residents did not like employee “G” as she could be “harsh.” 18. That Petitioner’s representative reviewed the Florida Department of Corrections website on May 22, 2013, and noted the following related to employee “G:” a. The employee had been convicted of possession of and manufacturing or distributing cocaine in 2007 and sentenced to prison. b. The employee had multiple prior offenses related to drug possession or sales ranging from 1994 through 1999. 19. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, regarding employee “G” and the administrator indicated as follows: a. The employee helped clean the facility, including common areas and resident rooms. b. The administrator did not maintain an employee personnel file for employee “G” and did not have a Level 2 criminal history background screening on the employee. c. The employee did not work regularly and only did cleaning. d. The administrator was not aware of the criminal history of the employee. 20. That the above reflects Respondent’s failure to ensure, prior to hiring staff for resident services, that the staff member was free of a criminal history which would disqualify the individual from employment in an assisted living facility. 21. The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2012). 22. Under Florida law, in addition to the requirements of part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2012). 23. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2012). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT II 24. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 25. That Florida law provides: (2) SOCIAL AND LEISURE ACTIVITIES. Residents shall be encouraged to participate in social, recreational, educational and other activities within the facility and the community. (a) The facility shall provide an ongoing activities program. The program shall provide diversified individual and group activities in keeping with each resident’s needs, abilities, and interests. (b) The facility shall consult with the residents in selecting, planning, and scheduling activities. The facility shall demonstrate residents’ participation through one or more of the following methods: resident meetings, committees, a resident council, suggestion box, group discussions, questionnaires, or any other form of communication appropriate to the size of the facility. (c) Scheduled activities shall be available at least six (6) days a week for a total of not Jess than twelve (12) hours per week. Watching television shall not be considered an activity for the purpose of meeting the twelve (12) hours per week of scheduled activities unless the television program is a special one-time event of special interest to residents of the facility. A facility whose residents choose to attend day programs conducted at adult day care centers, senior centers, mental health centers, or other day programs may count those attendance hours towards the required twelve (12) hours per week of scheduled activities. An activities calendar shall be posted in common areas where residents normally congregate. (d) If residents assist in planning a special activity such as an outing, seasonal festivity, or an excursion, up to three (3) hours may be counted toward the required activity time. Rule 58A-5.0182(2), Florida Administrative Code. 26. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 27. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law. 28. That Petitioner’s representative interviewed on May 22, 2013 at approximately 10:35 AM resident number eleven (11) who indicated that the facility did not do any activities and, as the resident did not "like TV,” the resident normally slept or sat out in front of the facility. 29. That Petitioner’s representative interviewed on May 22, 2013 at approximately 12:40 PM resident number three (3) who indicated that the facility was "boring" and that all the residents did was "watch TV or sit out front." 30. That Petitioner’s representative interviewed on May 22, 2013 at approximately 11:30 AM resident number four (4) who indicated that the facility did not have any formal activities program and that the residents mainly watched television. 31. That Petitioner’s representative interviewed on May 22, 2013 at approximately 2:10 PM the adult sibling of resident number nine (9) who indicated that the facility did not provide any activities to the residents while the former facility of resident number nine (9) did activities. The sibling believed the resident was bored at this facility due to no activities. 32. That Petitioner’s representative toured the Respondent facility on May 22, 2013 from approximately 10:15 AM through 11:30 AM and noted that there was not displayed any resident activity schedule as required. 33. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk. 34. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 35. That Petitioner cited Respondent for a Class III violation. 36. That Respondent was provided a mandatory date of correction of July 6, 2013. 37. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 38. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, including the time for each activity to begin and the time that each activity was to end each day. 39. That Petitioner’s representative toured the Respondent facility on July 23, 2013, commencing at approximately 10:30 a.m. and noted a posted activity calendar with activities listed twice a day for six (6) days each week, however the calendar did not have the time that the activity was to begin and how long the activity was to last. 40. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:30 PM resident number two (2) who indicated that the resident was bored and all the resident did was watch television. 11 41. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:50 PM resident number three (3) who indicated that all the resident did all day was watch television. 42. That Petitioner’s representative interviewed on July 23, 2013 at approximately 2:15 PM resident number five (5) who indicated that there was nothing for the resident to do but watch television or sit outside. 43. That Petitioner’s representative interviewed on July 23, 2013 at approximately 11:10 AM resident number seven (7) who indicated that facility residents had no ongoing daily activities available and that the resident would like to be able to go to church. 44. That during the survey of July 23, 2013, conducted from 10:00 AM until 4:30 PM, the facility did not offer the residents any structured activity, any activity listed on the post calendar, and the residents were observed watching television. 45. That Petitioner’s representative interviewed Respondent’s employee “A” on July 23, 2013, who indicated that it was not always easy to encourage the residents to get involved in activities and the residents had their own interests. 46. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk 47. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 48. That Petitioner cited Respondent for a Class III violation. 49. That the same constitutes an uncorrected Class III violation as defined by law. 12 WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT III 50. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 51. That Florida law provides: (b) Facility Resident Elopement Response Policies and Procedures. The facility shall develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures shall include: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and 4. The continued care of all residents within the facility in the event of an elopement. (c) Facility Resident Elopement Drills. The facility shall conduct resident elopement drills pursuant to Sections 429.41(1)(a)3. and 429.41(1)(1), F.S. Rule 58A-5.0182(8)(b and c), Florida Administrative Code. 52. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 53. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 54. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013 at approximately 4:00 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 55. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 56. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 57. That Petitioner cited Respondent for a Class ITT violation. 58. That Respondent was provided a mandatory date of correction of July 6, 2013. 59. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 60. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 61. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013 at approximately 2:15 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 62. That Petitioner’s representative reviewed Respondent’s documentation provided by Respondent and noted that the last documented elopement drill was in 2010. 63. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 14 64. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 65. That Petitioner cited Respondent for a Class III violation. 66. That the same constitutes an uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT IV 67. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 7. That Florida law provides: (a) Newly hired staff shall have 30 days to submit a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis. Freedom from tuberculosis must be documented on an annual basis. A person with a positive tuberculosis test must submit a health care provider’s statement that the person does not constitute a risk of communicating tuberculosis. Newly hired staff does not include an employee transferring from one facility to another that is under the same management or ownership, without a break in service. If any staff member is later found to have, or is suspected of having, a communicable disease, he/she shall be removed from duties until the administrator determines that such condition no longer exists. Rule 58A-5.019(2)(a), Florida Administrative Code. Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis... Rule 58A-5.024(2)(a), Florida Administrative Code. 68. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 69. That based upon the review of records and interview, Respondent failed to ensure obtain or maintain a statement from a health care provider, based on a examination conducted. within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, for three (3) of three (3) sampled staff members, the same being contrary to law. 70. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows: a. Staff member “B”: i. The staff member was a direct care provider. ii. The staff member was hired on October 13, 2012. iii. Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease including tuberculosis. b. Staff member “C”: i. The staff member was a direct care provider. ii. The staff member was hired on February 1, 2013. iii. Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease. iv. An initial tuberculosis test was completed as completed on May 18, 2013, three (3) months after the employee began work at the facility and well beyond the required testing within thirty (30) days of hire. c. Staff member “D”: i. The staff member was a direct care provider. ii. The staff member was hired on January 17, 2013. iii. Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease including tuberculosis. 71. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013 at approximately 3:45 p.m. who indicated that: a. She was not aware that a separate statement of freedom from communicable diseases was needed for all employees with direct resident contact. b. She thought the tuberculosis test alone was what was needed. 72. That the above reflects respondent’s failure to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, said failures in violation of law and increasing the risk of the spread of communicable disease to residents who often suffer from impaired immune systems. 73. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 74, That Petitioner cited Respondent for a Class III violation. 75. That Respondent was provided a mandatory date of correction of July 6, 2013. 17 76. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 77. That based upon the review of records and interview, Respondent failed to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, for one (1) of three (3) sampled staff members, the same being contrary to law. 78. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows: a. The personnel record for staff member “E” was hired on April 11, 2013. b. The staff member provided direct care to residents. c. A medical statement indicating staff member “E” was free from communicable diseases had no date to determine when the statement was written by the medical provider. 79. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013 regarding the communicable disease statement of staff member “E” and the owner indicated as follows: a. She acknowledged that the statement in the personnel file was not dated by the provider. b. She would obtain a dated medical statement from the medical provider. 80. That a corrected document had not been received from the facility owner or administrator by Petitioner’s representative before the completion of the written survey document on approximately June 6, 2013. 81. | That the above reflects respondent’s failure to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, said failures in violation of law and increasing the risk of the spread of communicable disease to residents who often suffer from impaired immune systems. 82. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 83. That Petitioner cited Respondent for a Class III violation. 84. That the same constitutes an uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT V 85. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 7. That Florida law provides: (2) DIETARY STANDARDS. (a) The Tenth Edition Recommended Dietary Allowances established by the Food and Nutrition Board — National Research Council, adjusted for age, sex and activity, shall be the nutritional standard used to evaluate meals. Therapeutic diets shall meet these nutritional standards to the extent possible. A summary of the Tenth Edition Recommended Dietary Allowances, interpreted by a daily food guide, is available from the DOEA Assisted Living Program. (b) The recommended dietary allowances shall be met by offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents 19 and prepared by the use of standardized recipes. For facilities with a licensed capacity of 16 or fewer residents, standardized recipes are not required. Unless a resident chooses to eat less, the recommended dietary allowances to be made available to each resident daily by the facility are as follows: 1, Protein: 6 ounces or 2 or more servings; 2. Vegetables: 3-5 servings; 3. Fruit: 2-4 or more servings; 4. Bread and starches: 6-11 or more servings; 5. Milk or milk equivalent: 2 servings; 6. Fats, oils, and sweets: use sparingly; and 7, Water. (c) All regular and therapeutic menus to be used by the facility shall be reviewed annually by a registered dietitian, licensed dietitian/nutritionist, or by a dietetic technician supervised by a registered dietitian or licensed dietitian/nutritionist, to ensure the meals are commensurate with the nutritional standards established in this rule. Portion sizes shall be indicated on the menus or on a separate sheet. Daily food servings may be divided among three or more meals per day, including snacks, as necessary to accommodate resident needs and preferences. This review shall be documented in the facility files and include the signature of the reviewer, registration or license number, and date reviewed. Menu items may be substituted with items of comparable nutritional value based on the seasonal availability of fresh produce or the preferences of the residents. (d) Menus to be served shall be dated and planned at least one week in advance for both regular and therapeutic dicts. Residents shall be encouraged to participate in menu planning. Planned menus shall be conspicuously posted or easily available to residents. Regular and therapeutic menus as served, with substitutions noted before or when the meal is served, shall be kept on file in the facility for 6 months. (e) Therapeutic diets shall be prepared and served as ordered by the health care provider. 1. Facilities that offer residents a variety of food choices through a select menu, buffet style dining or family style dining are not required to document what is eaten unless a health care provider’s order indicates that such monitoring is necessary. However, the food items which enable residents to comply with the therapeutic diet shall be identified on the menus developed for use in the facility. 2. The facility shall document a resident’s refusal to comply with a therapeutic diet and notification to the resident’s health care provider of such refusal. If a resident refuses to follow a therapeutic diet after the benefits are explained, a signed statement from the resident or the resident’s responsible party refusing the diet is acceptable documentation of a resident’s preferences. In such instances 20 daily documentation is not necessary. (f) For facilities serving three or more meals a day, no more than 14 hours shall elapse between the end of an evening meal containing a protein food and the beginning of a morning meal. Intervals between meals shall be evenly distributed throughout the day with not less than two hours nor more than six hours between the end of one meal and the beginning of the next. For residents without access to kitchen facilities, snacks shall be offered at least once per day. Snacks are not considered to be meals for the purposes of calculating the time between meals. (g) Food shall be served attractively at safe and palatable temperatures. All residents shall be encouraged to eat at tables in the dining areas. A supply of eating ware sufficient for all residents, including adaptive equipment if needed by any resident, shall be on hand. (h) A 3-day supply of non-perishable food, based on the number of weekly meals the facility has contracted with residents to serve, and shall be on hand at all times. The quantity shall be based on the resident census and not on licensed capacity. The supply shall consist of dry or canned foods that do not require refrigeration and shall be kept in sealed containers which are labeled and dated. The food shall be rotated in accordance with shelf life to ensure safety and palatability. Water sufficient for drinking and food preparation shall also be stored, or the facility shall have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority. Rule 58A-5.0020(2), Florida Administrative Code. 86. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 87. That based upon the review of records, observations, and interview, Respondent failed to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply, the same being contrary to law. 88. That Petitioner’s representative reviewed Respondent’s "Week 3" lunch menu scheduled for Wednesday, May 22, 2013, and noted the following items were to be served to the residents: a tomato based ground beef sandwich on a bun, potato fries, and salad. 21 89. That Petitioner’s representative observed the lunch served to the residents on May 22, 2013, at approximately 12:25 p.m., and noted the meal served was bologna sandwiches and vegetable soup. 90. That Petitioner’s representative interviewed Respondent's staff member “B” on May 22, 2013, regarding facility dietary services and the staff member indicated as follows: a. Staff have to notify the administrator the day before to take food out of the locked freezer because only the administrator has the key. b. Staff have to substitute when what's scheduled on the menu is not brought out of the freezer by the administrator. c. The only residents who get snacks are the diabetics, near bedtime. d. Other residents purchase their own snacks 91. That Petitioner’s representative reviewed Respondent’s menu and substitution folder provided by the administrator during the survey and noted that the last record of a menu substitution was on October 7, 2012. 92. That Petitioner’s representative noted that no snacks were observed being offered to residents during the survey of May 22, 2013, which ended at approximately 4:30 p.m. 93. That Petitioner’s representative interviewed resident number four (4) on May 22, 2013, who indicated that residents are not given snacks. 94. That Petitioner’s representative interviewed resident number three (3) on May 22, 2013, who indicated that they do not get snacks and some of the staff might share some of their own snacks with them. 22 95. That Petitioner’s representative interviewed Respondent’s staff member “C” on May 22, 2013, who indicated that no snacks are available for the residents and admitted that she has brought snacks for residents with her own money 96. That Petitioner’s representative toured Respondent’s pantry and kitchen which was shown to the representative by staff member “B” on May 22, 2013 and noted: a. There were minimal amounts of non-perishable food for the daily use for the fifteen (15) residents who resided at the facility. b. There were no powdered dairy products and no water or bags for water. 97. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, who indicated as follows: a. Residents snack all day long. b. She bought them snacks and that ice cream or something is offered at 8pm or so. c. The emergency food supply was at her mother's house. 98. That the above reflects Respondent’s failure to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply. 99. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 100. That Petitioner cited Respondent for a Class III violation. 101. That Respondent was provided a mandatory date of correction of July 6, 2013. 23 102. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 103. That based upon the review of records, observations, and interview, Respondent failed to provide snacks to residents, the same being contrary to law. 104. That Petitioner’s representative conducted the follow-up visit on July 23, 2013 beginning at 10:00 a.m. and concluding at approximately 4:00 p.m. and it was noted during that time that residents did not have free access to the facility kitchen and were not offered snacks. 105. That Petitioner’s representative interviewed resident number seven (7) on July 23, 2013, who indicated that the resident was required to give the facility money to purchase diabetic snacks for self and the "house, and that the facility expected the residents to purchase their own snacks. 106. That Petitioner’s representative interviewed resident number four (4) on July 23, 2013, who indicated that the facility does not provide snacks for the residents at times and the resident would purchase own snacks because if the facility did not have any, the residents would go without. 107. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013, who indicated that she was not at the facility to train staff to give snacks to residents separate from meals. 108. That the above reflects respondent’s failure to provide snacks to residents as required by law. 109. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than 24 class I or class II violations. 110. That Petitioner cited Respondent for a Class III violation. 111. That the same constitutes an uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT VI 112. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 113. That Florida law provides: (a) A facility with a limited mental health license shall maintain an up-to-date admission and discharge log containing the names and dates of admission and discharge for all mental health residents. The admission and discharge log required under Rule 58A-5.024, F.A.C., shall be sufficient provided that all mental health residents are clearly identified. (b) Staff records shall contain documentation that designated staff have completed limited mental health training as required by Rule 58A-5.0191, F.A.C. (c) Resident records for mental health residents in a facility with a limited mental health license must include the following ... 3. A Community Living Support Plan. Rule 58A-5.029(2)(a through c), Florida Administrative Code. 114. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 115. That based upon the review of records, observations, and interview, Respondent failed to maintain an admissions and discharge log identifying limited mental health residents, and failed to ensure staff have completed required training related to limited mental health residents, the same being contrary to law. 25 116. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, who indicated as follows: a. She did not keep a list of residents identified as receiving limited mental health services. b. All but two (2) of the facility residents were receiving limited mental health services. 117. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows regarding staff member “B”: a. The staff member had been hired on October 12, 2013, in excess of six (6) months prior to the survey. b. The staff member’s record See, Rule 58A-5.0191, Florida Administrative Code. 118. That the above reflects respondent’s failure to maintain an admissions and discharge log identifying limited mental health residents, and failed to ensure staff have completed required training related to limited mental health residents. 119. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 120. That Petitioner cited Respondent for a Class ITI violation. 121. That Respondent was provided a mandatory date of correction of July 6, 2013. 122. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 26 123. That based upon the review of records, observations, and interview, Respondent failed to maintain an admissions and discharge log identifying limited mental health residents, and failed to obtain and maintain community living support plans for two (2) of three (3) sampled limited mental health residents, the same being contrary to law. 124. That Petitioner’s representative reviewed Respondent’s presented admission discharge records and noted that Respondent did not maintain an admission and discharge log that identified limited mental health residents. 125. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013, who indicated that she was unsure of which residents were considered limited mental health residents and that she was not aware of the requirements for limited mental health residents, 126. That Petitioner’s representative reviewed Respondent’s records related to residents numbered seven (7) and eight (8) during the survey and noted: a. Both were limited mental health residents. b. No community living support plan for either resident had been obtained or maintained by Respondent. 127. That the above reflects respondent’s failure to maintain an admissions and discharge log identifying limited mental health residents, and failed to obtain and maintain community living support plans for limited mental health residents. 128. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class H violations. 129. That Petitioner cited Respondent for a Class II violation. 27 130. That the same constitutes an uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (203).1 Respectfully Submitted, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Florida 33701 Telephone: (727) 552-1947 Facsimile: (727) 552-1440 walsht@ahca.myflorida.com i, fi / ZA ihe. Walsh II, Esq. fie oe No. 566365 NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan 28 Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No 7013 0600 0001 6664 9232 to Sheryl Rainey, Administrator, Paradise Rest, Inc. d/b/a Paradise Rest, 1207 30" Avenue East, Bradenton, Florida 34208, and by regular U.S. Mail to Sheryl Rainey, Registered Agent for Paradise Rest, Inc., 2416 6" Avenue Drive East, Bradenton, FL 34208, on this (7 day of November, 2013. Ww A, q “Thémas J. Walsh Il Copy furnished to: Sheryl Rainey Registered Agent for Administrator Paradise Rest, Inc. Paradise Rest, Inc. d/b/a Paradise Rest 2416 6" Avenue Drive East 1207 30" Avenue East Bradenton, FL 34208 Bradenton, Florida 34208 (US Mail) (US Certified Mail) Patricia R. Caufman Thomas J. Walsh I Field Office Manager Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive, #330G St. Petersburg, FL 33701 (Interoffice Mail) 29 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Paradise Rest d/b/a Paradise Rest CASE NO. 2013010760 2013011244 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(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 Iam 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:__ ee Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA No. 2013012931 PARADISE REST, INC. d/b/a PARADISE REST, Respondent. / ADMINISTRATIVE COMPLAINT The Petitioner, State of Florida, Agency for Health Care Administration (“the Agency’), files this Administrative Complaint against the Respondent, Paradise Rest, Inc. d/b/a Paradise Rest (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to revoke Respondent’s licensure to operate an assisted living facility in the State of Florida and to impose an administrative fine of two thousand seven hundred dollars ($2,700.00). PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities. Ch. 408, Part II, Ch. 429, Part I, Fla. Stat. (2013); Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing EXHIBIT “ 1” statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2013). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2013). 2. The Respondent was issued a license by the Agency to operate a sixteen (16) bed assisted living facility (“the Facility”), license number 8065, at 1207 30" Avenue East, Bradenton, Florida 34208, and was at all times material required to comply with the applicable statutes and tules governing assisted living facilities. COUNT I! 3. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 4, That Florida law provides: (2) SOCIAL AND LEISURE ACTIVITIES. Residents shall be encouraged to participate in social, recreational, educational and other activities within the facility and the community. (a) The facility shall provide an ongoing activities program. The program shall provide diversified individual and group activities in keeping with each resident’s needs, abilities, and interests. (b) The facility shall consult with the residents in selecting, planning, and scheduling activities. The facility shall demonstrate residents’ participation through one or more of the following methods: resident meetings, committees, a resident council, suggestion box, group discussions, questionnaires, or any other form of communication appropriate to the size of the facility. (c) Scheduled activities shall be available at least six (6) days a week for a total of not less than twelve (12) hours per week. Watching television shall not be considered an activity for the purpose of meeting the twelve (12) hours per week of scheduled activities unless the television program is a special one-time event of special interest to residents of the facility. A facility whose residents choose to attend day programs conducted at adult day care centers, senior centers, mental health centers, or other day programs may count those attendance hours towards the required twelve (12) hours per week of scheduled activities. An activities calendar shall be posted in common areas where residents normally congregate. (d) If residents assist in planning a special activity such as an outing, seasonal festivity, or an excursion, up to three (3) hours may be counted toward the required activity time. Paragraphs numbered five (5) through twenty-eight (28) are asserted State of Florida, Agency for Health Care v. Paradise Rest, Inc. d/b/a Paradise Rest, AHCA numbers 2013010760 and 2013011244, attached hereto as Exhibit “A,” in paragraphs numbered twenty-six (26) through forty-nine (49). Rule 58A-5.0182(2), Florida Administrative Code. 5. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 6. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law. 7. That Petitioner’s representative interviewed on May 22, 2013 at approximately 10:35 AM resident number eleven (11) who indicated that the facility did not do any activities and, as the resident did not "like TV," the resident normally slept or sat out in front of the facility. 8. That Petitioner’s representative interviewed on May 22, 2013 at approximately 12:40 PM resident number three (3) who indicated that the facility was "boring" and that all the residents did was "watch TV or sit out front." 9. That Petitioner’s representative interviewed on May 22, 2013 at approximately 11:30 AM resident number four (4) who indicated that the facility did not have any formal activities program and that the residents mainly watched television. 10. That Petitioner’s representative interviewed on May 22, 2013 at approximately 2:10 PM the adult sibling of resident number nine (9) who indicated that the facility did not provide any activities to the residents while the former facility of resident number nine (9) did activities. The sibling believed the resident was bored at this facility due to no activities. 11. That Petitioner’s representative toured the Respondent facility on May 22, 2013 from approximately 10:15 AM through 11:30 AM and noted that there was not displayed any resident activity schedule as required. 12. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk. 13, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 14. That Petitioner cited Respondent for a Class II violation. 15. | That Respondent was provided a mandatory date of correction of July 6, 2013. 16. — That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 17. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, including the time for each activity to begin and the time that each activity was to end each day. 18. That Petitioner’s representative toured the Respondent facility on July 23, 2013, commencing at approximately 10:30 a.m. and noted a posted activity calendar with activities listed twice a day for six (6) days each week, however the calendar did not have the time that the activity was to begin and how long the activity was to last. 19. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:30 PM resident number two (2) who indicated that the resident was bored and all the resident did was watch television. 20. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:50 PM resident number three (3) who indicated that all the resident did all day was watch television. 21. That Petitioner’s representative interviewed on July 23, 2013 at approximately 2:15 PM resident number five (5) who indicated that there was nothing for the resident to do but watch television or sit outside. 22. That Petitioner’s representative interviewed on July 23, 2013 at approximately 11:10 AM resident number seven (7) who indicated that facility residents had no ongoing daily activities available and that the resident would like to be able to go to church. 23. That during the survey of July 23, 2013, conducted from 10:00 AM until 4:30 PM, the facility did not offer the residents any structured activity, any activity listed on the post calendar, and the residents were observed watching television. 24. That Petitioner’s representative interviewed Respondent’s employee “A” on July 23, 2013, who indicated that it was not always easy to encourage the residents to get involved in activities and the residents had their own interests. 25. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk 26. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 27. That Petitioner cited Respondent for a Class III violation. 28. That the same constitutes an uncorrected Class III violation as defined by law. 29. That Florida law requires that deficient practice be corrected within thirty (30) days. 30. That on or about October 11, 2013, the Agency completed a second re-visit survey of the May 22, 2013, survey of Respondent and its facility. 31. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, including the time for each activity to begin and the time that each activity was to end each day. 32. That Petitioner’s representative toured the Respondent facility on October 10, 2013, commencing at approximately 9:00 am. and noted a posted activity calendar with activities listed twice a day for six (6) days each week indicating the times the activities began and ended, however the calendar was for the month of September 2013 and no October 2013 calendar was posted. 33. That Petitioner’s representative interviewed on October 10, 2013 at approximately 9:10 AM resident number three (3) who indicated that that resident wanted more activities and outings and said they "really didn't do much." 34. That Petitioner’s representative interviewed on October 10, 2013 at approximately 10:20 AM resident number five (5) who indicated that there was no games and no outings and said the facility residents just lie in bed and watch TV. 35. That Petitioner’s representative interviewed on October 10, 2013 at approximately 11:05 AM resident number six (6) who indicated the facility has some board games but staff has to help with setting up games so they aren't played very often. 36. That during the stay of Petitioner’s representative on October 10, 2013, from 9:00 AM until approximately 4:30 PM, no organized activities took place and the residents were observed sleeping, watching television or going outside to smoke. 37. That Petitioner’s representative interviewed on October 10, 2013 at approximately 4:45 PM Respondent’s shareholder who indicated that she didn’t know why there was no schedule of activities posted. 38. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk 39. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 40. That Petitioner cited Respondent for a Class III violation. 41. | That the same constitutes a twice uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one thousand dollars ($1,000.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT I? 42. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 43, That Florida law provides: 2 Paragraphs numbered forty-four (44) through fifty-eight (58) are asserted State of Florida, Agency for Health Care v. Paradise Rest, Inc. d/b/a Paradise Rest, AHCA numbers 2013010760 and 2013011244, attached hereto as Exhibit “A,” in paragraphs numbered fifty-two (52) through sixty-six (66) therein. (b) Facility Resident Elopement Response Policies and Procedures. The facility shall develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures shall include: 1. An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and 4. The continued care of all residents within the facility in the event of an elopement. (c) Facility Resident Elopement Drills. The facility shall conduct resident elopement drills pursuant to Sections 429.41(1)(a)3. and 429.41(1)(1), F.S. Rule 58A~-5.0182(8)(b and c), Florida Administrative Code. 44. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 45. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 46. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013 at approximately 4:00 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 47. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 48. | The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class I] violations. 49. That Petitioner cited Respondent for a Class III violation. 50. ‘That Respondent was provided a mandatory date of correction of July 6, 2013. 51. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 52. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 53. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013 at approximately 2:15 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 54. That Petitioner’s representative reviewed Respondent’s documentation provided by Respondent and noted that the last documented elopement drill was in 2010. 55. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 56. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 57. That Petitioner cited Respondent for a Class III violation. 58. That the same constitutes an uncorrected Class III violation as defined by law. 59. That Florida law requires that deficient practice be corrected within thirty (30) days. 60. That on or about October 11, 2013, the Agency commenced a second re-visit survey of the May 22, 2013, survey of Respondent and its facility. 61. That based upon a review of records and interview, Respondent failed to maintain and follow a written elopement policy with a detailed plan for dealing with resident elopement, including requiring a search of the premises, failed to insure one (1) of seven (7) sampled staff were trained on what actions to take in the event of a resident elopement, and failed to maintain photo identification for one (1) of nine (9) sampled residents in the facility who was identified as an elopement risk, the same being contrary to the mandates of law. 62. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) on October 10, 2013, and noted as follows; a. The resident’s health assessment (AHCA form 1823), dated august 4, 2013, had noted by the medical provider under “special precautions,” that the resident required "close observation." b. An updated health assessment, dated September 16, 2013 09/16/2013, had mon noted by the medical provider under “special precautions,” “may be elopement risk." c. Absent from the resident’s record was any photograph of the resident. 63. That Petitioner’s representative interviewed Respondent’s employee “C” on October 10, 2013 at approximately 3:25 PM, who indicated that he had not been trained regarding elopement procedures and did not know what to do if a resident went missing from the facility. 64. That Petitioner’s representative interviewed Respondent’s shareholder on October 10, 2013 at approximately 4:00 PM who indicated as follows: a. The facility had two residents with guardians who could not leave the facility and other residents are allowed to leave the facility without supervision. b. Resident number one (1) was not at risk of elopement. c. When presented with the health assessment for resident number one (1) and the documentation that the resident was an elopement risk, she said she was not aware that the resident was an elopement risk. 65. That Petitioner’s representative telephonically interviewed a representative of local law enforcement on October 11, 2014 at 1:09 PM who indicated as follows: a. On September 29, 2013, at approximately 9:00 AM, resident number one (1) was found "wandering around" the parking lot of the police department and appeared disoriented. b. Law enforcement was able to locate where the resident lived through a records search. c. When they returned the resident to the facility, the officer stated that staff at the facility indicated no one had seen the resident since 10:00 PM the night before. 66. That Petitioner’s representative reviewed Respondent’s policy and procedures related to elopement on October 14, 2013, and noted as follows: a. The written policy and procedures for elopements did not include language regarding a search of the premises. b. The written policy stated that the facility would take photographs of residents identified as an elopement risk. 67. That the above reflects respondent’s failure to maintain and implement a written elopement policy with a detailed plan for dealing with resident elopement as required by law, the lack thereof placing residents’ well-being at risk. 68. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 69. That Petitioner cited Respondent for a Class III violation. 70. That the same constitutes a twice uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of one thousand dollars ($1,000.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT IP 71. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 72. That Florida law provides: (2) DIETARY STANDARDS. (a) The Tenth Edition Recommended Dietary Allowances established by the Food and Nutrition Board -- National Research Council, adjusted for age, sex and activity, shall be the nutritional standard used to evaluate meals. Therapeutic diets shall meet these nutritional standards to the extent possible. A summary of the Tenth Edition Recommended Dietary Allowances, interpreted by a daily food guide, is available from the DOEA Assisted Living Program. (b) The recommended dietary allowances shall be met by offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents and prepared by the use of standardized recipes. For facilities with a licensed capacity of 16 or fewer residents, standardized recipes are not required. Unless a resident chooses to eat less, the recommended dietary allowances to be made available to each resident daily by the facility are as follows: 3 Paragraphs numbered seventy-three (73) through ninety-eight (98) are asserted State of Florida, Agency for Health Care v. Paradise Rest, Inc. d/b/a Paradise Rest, AHCA numbers 2013010760 and 2013011244, attached hereto as Exhibit “A,” in paragraphs eighty-six (86) through one hundred eleven (111) therein. 12 1. Protein: 6 ounces or 2 or more servings; 2. Vegetables: 3-5 servings; 3. Fruit: 2-4 or more servings; 4. Bread and starches: 6-11 or more servings; 5. Milk or milk equivalent: 2 servings; 6. Fats, oils, and sweets: use sparingly; and 7. Water. (c) All regular and therapeutic menus to be used by the facility shall be reviewed annually by a registered dietitian, licensed dietitian/nutritionist, or by a dietetic technician supervised by a registered dietitian or licensed dietitian/nutritionist, to ensure the meals are commensurate with the nutritional standards established in this rule. Portion sizes shall be indicated on the menus or on a separate sheet. Daily food servings may be divided among three or more meals per day, including snacks, as necessary to accommodate resident needs and preferences. This review shall be documented in the facility files and include the signature of the reviewer, registration or license number, and date reviewed. Menu items may be substituted with items of comparable nutritional value based on the seasonal availability of fresh produce or the preferences of the residents. (d) Menus to be served shall be dated and planned at least one week in advance for both regular and therapeutic diets. Residents shall be encouraged to participate in menu planning. Planned menus shall be conspicuously posted or easily available to residents. Regular and therapeutic menus as served, with substitutions noted before or when the meal is served, shall be kept on file in the facility for 6 months. (e) Therapeutic diets shall be prepared and served as ordered by the health care provider. 1. Facilities that offer residents a variety of food choices through a select menu, buffet style dining or family style dining are not required to document what is eaten unless a health care provider’s order indicates that such monitoring is necessary. However, the food items which enable residents to comply with the therapeutic diet shall be identified on the menus developed for use in the facility. 2. The facility shall document a resident’s refusal to comply with a therapeutic diet and notification to the resident’s health care provider of such refusal. If a resident refuses to follow a therapeutic diet after the benefits are explained, a signed statement from the resident or the resident’s responsible party refusing the diet is acceptable documentation of a resident’s preferences. In such instances daily documentation is not necessary. (f) For facilities serving three or more meals a day, no more than 14 hours shall elapse between the end of an evening meal containing a protein food and the beginning of a morning meal. Intervals between meals shall be evenly distributed throughout the day with not less than two hours nor more than six hours between the end of one meal and the beginning of the next. For residents without access to kitchen facilities, snacks shall be offered at least once per day. Snacks are not considered to be meals for the purposes of calculating the time between meals. (g) Food shall be served attractively at safe and palatable temperatures. All residents shall be encouraged to eat at tables in the dining areas. A supply of eating ware sufficient for all residents, including adaptive equipment if needed by any resident, shall be on hand. (h) A 3-day supply of non-perishable food, based on the number of weekly meals the facility has contracted with residents to serve, and shall be on hand at all times. The quantity shall be based on the resident census and not on licensed capacity. The supply shall consist of dry or canned foods that do not require refrigeration and shall be kept in sealed containers which are labeled and dated. The food shall be rotated in accordance with shelf life to ensure safety and palatability. Water sufficient for drinking and food preparation shall also be stored, or the facility shall have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority. Rule 58A-5.0020(2), Florida Administrative Code. 73. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 74. That based upon the review of records, observations, and interview, Respondent failed to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply, the same being contrary to law. 75. That Petitioner’s representative reviewed Respondent’s "Week 3" lunch menu scheduled for Wednesday, May 22, 2013, and noted the following items were to be served to the residents: a tomato based ground beef sandwich on a bun, potato fries, and salad. 76. That Petitioner’s representative observed the lunch served to the residents on May 22, 2013, at approximately 12:25 p.m., and noted the meal served was bologna sandwiches and vegetable soup. 77. That Petitioner’s representative interviewed Respondent’s staff member “B” on May 22, 2013, regarding facility dietary services and the staff member indicated as follows: a. Staff have to notify the administrator the day before to take food out of the locked freezer because only the administrator has the key, b. Staff have to substitute when what's scheduled on the menu is not brought out of the freezer by the administrator. c. The only residents who get snacks are the diabetics, near bedtime. d. Other residents purchase their own snacks 78. That Petitioner’s representative reviewed Respondent’s menu and substitution folder provided by the administrator during the survey and noted that the last record of a menu substitution was on October 7, 2012. 79, That Petitioner’s representative noted that no snacks were observed being offered to residents during the survey of May 22, 2013, which ended at approximately 4:30 p.m. 80. That Petitioner’s representative interviewed resident number four (4) on May 22, 2013, who indicated that residents are not given snacks. 81. That Petitioner’s representative interviewed resident number three (3) on May 22, 2013, who indicated that they do not get snacks and some of the staff might share some of their own snacks with them. 82. That Petitioner’s representative interviewed Respondent’s staff member “C” on May 22, 2013, who indicated that no snacks are available for the residents and admitted that she has brought snacks for residents with her own money 83. That Petitioner’s representative toured Respondent’s pantry and kitchen which was shown to the representative by staff member “B” on May 22, 2013 and noted: a. There were minimal amounts of non-perishable food for the daily use for the fifteen (15) residents who resided at the facility. b. There were no powdered dairy products and no water or bags for water. 84. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, who indicated as follows: a. Residents snack all day long. b. She bought them snacks and that ice cream or something is offered at 8pm or so. c. The emergency food supply was at her mother's house. 85. That the above reflects Respondent’s failure to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply. 86. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 87. That Petitioner cited Respondent for a Class II] violation. 88. | That Respondent was provided a mandatory date of correction of July 6, 2013. 89. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 90. That based upon the review of records, observations, and interview, Respondent failed to provide snacks to residents, the same being contrary to law. 91. That Petitioner’s representative conducted the follow-up visit on July 23, 2013 beginning at 10:00 a.m. and concluding at approximately 4:00 p.m. and it was noted during that time that residents did not have free access to the facility kitchen and were not offered snacks. 92. That Petitioner’s representative interviewed resident number seven (7) on July 23, 2013, who indicated that the resident was required to give the facility money to purchase diabetic snacks for self and the "house, and that the facility expected the residents to purchase their own snacks. 93. That Petitioner’s representative interviewed resident number four (4) on July 23, 2013, who indicated that the facility does not provide snacks for the residents at times and the resident would purchase own snacks because if the facility did not have any, the residents would go without. 94. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013, who indicated that she was not at the facility to train staff to give snacks to residents separate from meals. 95. That the above reflects respondent’s failure to provide snacks to residents as required by law. 96. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class UJ violations. 97. That Petitioner cited Respondent for a Class III violation. 98. That the same constitutes an uncorrected Class III deficient practice as defined by law. 99. That Florida law requires that deficient practice be corrected within thirty (30) days. 100. That on or about October 11, 2013, the Agency commenced a second re-visit survey of the May 22, 2013, survey of Respondent and its facility. 101. That based upon the review of records, observations, and interview, Respondent failed to follow the Registered Dietician's approved menu and failed to maintain an ongoing substitution log, the same being contrary to the mandates of law. 102. That Petitioner’s representative toured Respondent’s kitchen on October 10, 2013, at approximately 10:15 AM, and noted as follows: a. A menu posted to the right of the refrigerator on the wall. b. The menu was dated and approved on April 22, 2013, by a registered dietician. The menu was a seven (7) day menu, with portion sizes on the menu. c. A substitution log for the previous month (September) was posted next to the menu and no documented substitutions were listed for October 2013. 103. That no menus were posted outside of the locked kitchen for residents to view. 104. That the posted breakfast Menu for Thursday October 10, 2013, listed 6 oz. juice, 1/2 ¢ pears, 1 c cereal, 2 each sausage, 1 each toast, 8 oz. milk, 8 oz. beverage. 105. That Petitioner’s representative interviewed resident number three (3) on October 10, 2013, at approximately 9:10 AM, who stated the resident was served yogurt, bacon, grilled cheese and orange juice for breakfast. 106. That Petitioner’s representative interviewed resident number five (5) on October 10, 2013, at approximately 10:20 AM, who stated the resident doesn't get enough food and had grilled cheese with bacon for breakfast. 107. That Petitioner’s representative interviewed resident number six (6) on October 10, 2013, at approximately 11:05 AM, who stated the residents were served bacon and toast that morning with oatmeal and orange juice. 108. That Petitioner’s representative interviewed resident number five (5) on October 10, 2013, at approximately 10:20 AM, who stated the facility does not serve enough food and always serves "the same thing." 109. That Petitioner’s representative interviewed resident number seven (7) on October 10, 2013, at approximately 4:40 AM, who stated that the resident does not like the food and "I never want to see another baloney sandwich in my life. That's all they serve." 110. That the lunch Menu for Thursday October 10, 2013, listed: 3 c vegetable soup, 2 oz. grilled cheese sandwich, 1/2 c pudding, 2 cookies, 8 oz. beverage, and 8 oz. milk. 111. That Petitioner’s representative observed lunch on October 10, 2013, at approximately 11:45 AM, and noted as follows: a. Ten (10) residents were eating lunch. b. The lunch served to residents was spaghetti with meat/sauce, a cheese sandwich, one (1) cup of pineapple chunks, a whole banana and lemonade. c. The cheese sandwich consisted of two pieces of white bread with one piece of yellow American cheese. 112. That Petitioner’s representative interviewed Respondent’s shareholder on October 10, 2013, at approximately 4:50 PM who indicated that the staff on duty who prepared the food on the date of the survey was new and "I guess we have to teach her to follow the menu." 113. That the above reflects respondent’s failure to provide to follow the Registered Dietician's approved menu and failed to maintain an ongoing substitution log. 114. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 115. That Petitioner cited Respondent for a Class III violation. 116. That the same constitutes a twice uncorrected Class HI deficiency. WHEREFORE, the Agency intends to impose an administrative fine in the amount of seven hundred dollars ($700.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT VI 117. The Agency re-alleges and incorporates Paragraphs one (1) through two (2) and Counts I through III, and the Administrative Complaint issued in State of Florida, Agency for Health Care Administration v. Paradise Rest, Inc. d/b/a Paradise Rest, Agency Case Numbers 2013010760 and 2013011244, attached hereto as “Exhibit A” and incorporated herein by reference, as if fully set forth herein. 118. That Respondent has been cited with five (5) Class III deficient practices on a survey of May 22, 2013. 119. That Respondent has been cited with five (5) uncorrected Class III deficient practices on a survey of July 23, 2013. 120. That Respondent has been cited with three (3) twice uncorrected Class III deficient practices on a survey of October 11, 2013. 121. That Respondent has been cited with the failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), Florida Statutes, or chapter 435, on a on survey of May 22, 2013. 122. That Florida law provides 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: (b) An intentional or negligent act materially affecting the health or safety of a client of the provider, and (c) A violation of this part, authorizing statutes, or applicable rules, and (d) A demonstrated pattern of deficient performance. Section 408.815(1)(b), (c), and (d), Florida Statutes (2013). 123. That Respondent has violated the minimum requirements of law of Chapters 429, Part II, and Chapter 58A-5, Florida Administrative Code as described with particularity within this complaint. 124. That Respondent has a duty to maintain its operations in accord with the minimum requirements of law and to provide care and services at mandated minimum standards. 125. That Respondent has demonstrated a pattern of deficient practice evidenced by, inter alia, the citation of twice uncorrected deficient practices. 126. That in addition to the requirements of part II of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part I of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee ... (e) A citation of any of the following deficiencies as specified in s. 429.19; 1. One or more cited class I deficiencies. 2. Three or more cited class Il deficiencies. 3. Five or more cited class III deficiencies that have been cited on a single survey and have not been corrected within the times specified. (f) Failure to comply with the 21 background screening standards of this part, s. 408.809(1), or chapter 435... (k) Any act constituting a ground upon which application for a license may be denied. Section 429.14(1)(e, f, and k), Florida Statutes (2013). 127. That Respondent has been cited with five (5) or more uncorrected Class II deficient practices on a single survey. 128. That Respondent has been cited with the violation of the background screening requirements of law. 129. That the above reflects grounds for which the Agency may revoke Respondent’s licensure to operate and assisted living facility in the State of Florida. 130. That based thereon, individually and collectively, the Agency seeks the revocation of the Respondent’s licensure. WHEREFORE, the Agency intends to revoke the license of the Respondent to operate an assisted living facility in the State of Florida. Respectfully Submitted, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Florida 33701 Telephone: (727) 552-1947 Facsimile: (727) 552-1440 walsht@ahca.myflorida.com 7 f 2 fos By: Thomas J. Walsh II, Esq. Fla. Bar No. 566365 99 NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by USS. Certified Mail, Return Receipt No 7011 0470 0000 4509 4989 to Sheryl Rainey, Administrator, Paradise Rest, Inc. d/b/a Paradise Rest, 1207 30" Avenue East, Bradenton, Florida 34208, and by regular U.S. Mail to Sheryl Rainey, Registered Agent for Paradise Rest, Inc., 2416 6" Avenue Drive East, Bradenton, FL 34208, and Theodore E. Mack, Esq., Powell & Mack, 3700 Bellwood Drive, Tallahassee, Florida 32303, on this vee day of March, 2014. Thomas J. Walsh Copy furnished to: Patricia R. Caufman Field Office Manager 23 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Paradise Rest, Inc., d/b/a Paradise Rest CASE NO. 2013012931 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 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 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA Nos. 2013010760 2013011244 PARADISE REST, INC. d/b/a PARADISE REST, Respondent. / ADMINISTRATIVE COMPLAINT The Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), files this Administrative Complaint against the Respondent, Paradise Rest, Inc. d/b/a Paradise Rest (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to impose an administrative fine of three thousand dollars ($3,000.00) against an assisted living facility based upon five (5) uncorrected Class III deficiencies and one (1) unclassified deficient practice. PARTIES L. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities. Ch, 408, Part Il, Ch. 429, Part I, Fla. Stat. (2013); Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing EXHIBIT 6A” statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2013). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2013). 2. The Respondent was issued a license by the Agency to operate a sixteen (16) bed assisted living facility (“the Facility”), license number 8065, at 1207 30" Avenue East, Bradenton, Florida 34208, and was at all times material required to comply with the applicable statutes and rules governing assisted living facilities. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24- hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, assisted living facilities provide supervision, assistance with personal. care and supportive services, as well as assistance with, or administration of medications to residents who require such services. COUNT I Criminal Background Screening 3. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2012). 4. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2012). 5. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (1) would require level 2 background screening under Chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the Agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If the fingerprints of such a person are not retained by the Department of Law Enforcement under Section 943.05(2)(g), the person must file a complete set of fingerprints with the Agency and the Agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints may be retained by the Department of Law Enforcement under Section 943.05(2)(g). The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until the person’s background screening results are retained in the clearinghouse created under section 435.12, the Agency may accept as satisfying the requirements of this section proof of compliance with level . 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Family Services, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under Chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in section 435.04, and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an affidavit of compliance with the provisions of Chapter 435 and this section using forms provided by the Agency. § 408.809(2), Fla. Stat. (2012). 6. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2012). 7. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2012). 8. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. § 435.06(2)(a)-(d), Fla. Stat. (2012). 9. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. § 435.06(3), Fla. Stat. (2012). 10. Under Florida law, all staff, who are hired on or after October 1, 1998, to provide personal services to residents, must be screened in accordance with Section 429.174, F.S. ... Rule 58A-5.019(3)(a), Florida Administrative Code. 11. Under Florida law, “Staff? means any person employed by a facility; or contracting with a facility to provide direct or indirect services to residents; or employees of firms under contract to the facility to provide direct or indirect services to residents when present in the facility. The term includes volunteers performing any service which counts toward meeting any staffing requirement of this rule chapter. Rule 58A-5.0131(34), Florida Administrative Code. 12. Onor about May 22, 2013, the Agency completed a compliant survey of the Respondent. 13. Based upon record review and interview, the Respondents failed to ensure that the Facility staff had the required background screening or exemption for one (1) of seven (7) sampled staff members, the same being contrary to law. 14. That Petitioner’s representative reviewed on May 22, 2013, Respondent’s provided employee schedules for May and June, 2013, and noted that employee “G” was not listed on the schedules. 15. That Petitioner’s representative interviewed resident number twelve (12) on May 22, 2013, who indicated that employee “G” worked at the Respondent facility and believed employee “G” to be the individual who cleaned the facility. 16. That Petitioner’s representative interviewed resident number four (4) on May 22, 2013, who indicated as follows: a. Employee “G” was employed by the facility and did cleaning and sometimes cooked. b. The resident did not care for employee “G” as the employee had taken light bulbs out of the lamp of the resident’s room because the bulbs were needed elsewhere in the facility. 17. That Petitioner’s representative interviewed resident number seven (7) on May 22, 2013, who indicated as follows: a. The day of the interview was the “day off” for employee “G.” b. Employee “G” worked at the facility regularly. c. Employee “G” cleaned the entire facility, including resident rooms, and sometimes helped cook. d. Employee “G” had sometimes transported the resident to places the resident needed to go. e. Some residents did not like employee “G” as she could be “harsh.” 18. That Petitioner’s representative reviewed the Florida Department of Corrections website on May 22, 2013, and noted the following related to employee “G:” a. The employee had been convicted of possession of and manufacturing or distributing cocaine in 2007 and sentenced to prison. b. The employee had multiple prior offenses related to drug possession or sales ranging from 1994 through 1999. 19. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, regarding employee “Gp and the administrator indicated as follows: a. The employee helped clean the facility, including common areas and resident rooms. b. The administrator did not maintain an employee personnel file for employee “G” and did not have a Level 2 criminal history background screening on the employee. c. The employee did not work regularly and only did cleaning d. The administrator was not aware of the criminal history of the employee. 20. That the above reflects Respondent’s failure to ensure, prior to hiring staff for resident services, that the staff member was free of a criminal history which would disqualify the individual from employment in an assisted living facility. 21. The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2012). 22. Under Florida law, in addition to the requirements of part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of Part I or Chapter 429, Part If of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2012). 23. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class Il, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2012). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT II 24. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 25. That Florida law provides: (2) SOCIAL AND LEISURE ACTIVITIES. Residents shall be encouraged to participate in social, recreational, educational and other activities within the facility and the community. (a) The facility shall provide an ongoing activities program. The program shall provide diversified individual and group activities in keeping with each resident’s needs, abilities, and interests. (b) The facility shall consult with the residents in selecting, planning, and scheduling activities. The facility shall demonstrate residents’ participation through one or more of the following methods: resident meetings, committees, a resident council, suggestion box, group discussions, questionnaires, or any other form of communication appropriate to the size of the facility. (c) Scheduled activities shall be available at least six (6) days a week for a total of not less than twelve (12) hours per week. Watching television shall not be considered an activity for the purpose of meeting the twelve (12) hours per week of scheduled activities unless the television program is a special one-time event of special interest to residents of the facility. A facility whose residents choose to attend day programs conducted at adult day care centers, senior centers, mental health centers, or other day programs may count those attendance hours towards the required twelve (12) hours per week of scheduled activities. An activities calendar. shall be posted in common areas where residents normally congregate. (d) If residents assist in planning a special activity such as an outing, seasonal festivity, or an excursion, up to three (3) hours may be counted toward the required activity time. Rule 58A-5.0182(2), Florida Administrative Code. 26. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 27.. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law. 28. That Petitioner’s representative interviewed on May 22, 2013 at approximately 10:35 AM resident number eleven (11) who indicated that the facility did not do any activities and, as the resident did not "like TV," the resident normally slept or sat out in front of the facility. 29. That Petitioner’s representative interviewed on May 22, 2013 at approximately 12:40 PM resident number three (3) who indicated that the facility was "boring" and that all the residents did was "watch TV or sit out front." 30. That Petitioner’s representative interviewed on May 22, 2013 at approximately 11:30 AM resident number four (4) who indicated that the facility did not have any formal activities program and that the residents mainly watched television. 31. That Petitioner’s representative interviewed on May 22, 2013 at approximately 2:10 PM the adult sibling of resident number nine (9) who indicated that the facility did not provide any activities to the residents while the former facility of resident number nine (9) did activities. The sibling believed the resident was bored at this facility due to no activities. 32. That Petitioner’s representative toured the Respondent facility on May 22, 2013 from approximately 10:15 AM through 11:30 AM and noted that there was not displayed any resident activity schedule as required. 10 33. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk. 34, ° The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 35. That Petitioner cited Respondent for a Class III violation. 36. That Respondent was provided a mandatory date of correction of July 6, 2013. 37. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 38. That based upon the review of records, observations, and interview, Respondent failed to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, including the time for each activity to begin and the time that each activity was to end each day. 39. That Petitioner’s representative toured the Respondent facility on July 23, 2013, commencing at approximately 10:30 a.m. and noted a posted activity calendar with activities listed twice a day for six (6) days each week, however the calendar did not have the time that the activity was to begin and how long the activity was to last. 40. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:30 PM resident number two (2) who indicated that the resident was bored and all the resident did was watch television. 41. That Petitioner’s representative interviewed on July 23, 2013 at approximately 1:50 PM resident number three (3) who indicated that all the resident did all day was watch television. 42. That Petitioner’s representative interviewed on July 23, 2013 at approximately 2:15 PM resident number five (5) who indicated that there was nothing for the resident to do but watch television or sit outside. 43. That Petitioner’s representative interviewed on July 23, 2013 at approximately 11:10 AM resident number seven (7) who indicated that facility residents had no ongoing daily activities available and that the resident would like to be able to go to church. 44. That during the survey of July 23, 2013, conducted from 10:00 AM until 4:30 PM, the facility did not offer the residents any structured activity, any activity listed on the post calendar, and the residents were observed watching television. 45. That Petitioner’s representative interviewed Respondent’s employee “A” on July 23, 2013, who indicated that it was not always easy to encourage the residents to get involved in activities and the residents had their own interests. 46. That the above reflects respondent’s failure to ensure that social and leisure activities were provided for residents and a schedule thereof posted as required by law, the lack thereof placing residents’ psychosocial well-being at risk 47. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 48. That Petitioner cited Respondent for a Class ITI violation. 49. That the same constitutes an uncorrected Class III violation as defined by law. 12 WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT I 50. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 51. That Florida law provides: (b) Facility Resident Elopement Response Policies and Procedures. The facility shall develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures shall include: 1, An immediate staff search of the facility and premises; 2. The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities; 3. The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and 4, The continued care of all residents within the facility in the event of an elopement. (c) Facility Resident Elopement Drills. The facility shall conduct resident elopement drills pursuant to Sections 429.41(1)(a)3. and 429.41(1)(), FS. : Rule 58A-5.0182(8)(b and c), Florida Administrative Code. 52. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 53. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 54, That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013 at approximately 4:00 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. 13 b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 55. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 56. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 57. That Petitioner cited Respondent for a Class II violation. 58. That Respondent was provided a mandatory date of correction of July 6, 2013. 59. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 60. That based upon the review of records and interview, Respondent failed to ensure that all staff participated in biannual elopement drills as required, the same being contrary to law. 61. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013 at approximately 2:15 p.m. who indicated that: a. She was unaware that elopement drills needed to be completed twice yearly. b. Staff were trained in elopement response (verified) but she acknowledged that she had not had elopement drills for the staff. 62. That Petitioner’s representative reviewed Respondent’s documentation provided by Respondent and noted that the last documented elopement drill was in 2010. 63. That the above reflects respondent’s failure to all staff all staff participated in biannual elopement drills as required placing residents at risk in emergent situations. 14 64, The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 65. That Petitioner cited Respondent for a Class IH violation. 66. That the same constitutes an uncorrected Class II violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT IV 67. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 7. That Florida law provides: (a) Newly hired staff shall have 30 days to submit a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis. Freedom from tuberculosis must be documented on an annual basis, A person with a positive tuberculosis test must submit a health care provider’s statement that the person does not constitute a risk of communicating tuberculosis. Newly hired staff does not include an employee transferring from one facility to another that is under the same management or ownership, without a break in service. If any staff member is later found to have, or is suspected of having, a communicable disease, he/she shall be removed from duties until the administrator determines that such condition no longer exists. Rule 58A-5.019(2)(a), Florida Administrative Code. Personnel records for each staff member shall contain, at a minimum, a copy of the original employment application with references furnished and verification of freedom from communicable disease including tuberculosis... Rule 58A-5.024(2)(a), Florida Administrative Code. 68. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 69. That based upon the review of records and interview, Respondent failed to ensure obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, for three (3) of three (3) sampled staff members, the same being contrary to law. 70. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows: a. Staff member “B”: i. The staff member was a direct care provider. ti. The staff member was hired on October 13, 2012. iii, Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease including tuberculosis. b. Staffmember “C”: i. The staff member was a direct care provider. ii, The staff member was hired on February 1, 2013. iii. Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease. iv. An initial tuberculosis test was completed as completed on May 18, 2013, three (3) months after the employee began work at the facility and well beyond the required testing within thirty (30) days of hire. 16 c. Staff member “D”: i. The staff member was a direct care provider. ii. The staff member was hired on January 17, 2013. iii, Absent from the record was any health care provider’s statement that the employee was signs or symptoms of a communicable disease including tuberculosis. 7\. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013 at approximately 3:45 p.m. who indicated that: a. She was not aware that a separate statement of freedom from communicable diseases was needed for all employees with direct resident contact. b. She thought the tuberculosis test alone was what was needed. 72. That the above reflects respondent’s failure to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, said failures in violation of law and increasing the risk of the spread of communicable disease to residents who often suffer from impaired immune systems. 73. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class I violations. 74. That Petitioner cited Respondent for a Class III violation. 75. That Respondent was provided a mandatory date of correction of July 6, 2013. 76. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 77. That based upon the review of records and interview, Respondent failed to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, for one (1) of three (3) sampled staff members, the same being contrary to law. 78. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows: a, The personnel record for staff member “E” was hired on April 11, 2013. b. The staff member provided direct care to residents. c. A medical statement indicating staff member “E” was free from communicable diseases had no date to determine when the statement was written by the medical provider. 79. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013 regarding the communicable disease statement of staff member “E” and the owner indicated as follows: a. She acknowledged that the statement in the personnel file was not dated by the provider. b. She would obtain a dated medical statement from the medical provider. 80. That a corrected document had not been received from the facility owner or administrator by Petitioner’s representative before the completion of the written survey document on approximately June 6, 2013. 81. That the above reflects respondent’s failure to obtain or maintain a statement from a health care provider, based on a examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis, said failures in violation of law and increasing the risk of the spread of communicable disease to residents who often suffer from impaired immune systems. 82. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 83. That Petitioner cited Respondent for a Class III violation. 84. That the same constitutes an uncorrected Class II violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT V 85. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 7. That Florida law provides: (2) DIETARY STANDARDS. (a) The Tenth Edition Recommended Dietary Allowances established by the Food and Nutrition Board - National Research Council, adjusted for age, sex and activity, shall be the nutritional standard used to evaluate meals. Therapeutic diets shall meet these nutritional standards to the extent possible. A summary of the Tenth Edition Recommended Dietary Allowances, interpreted by a daily food guide, is available from the DOEA Assisted Living Program. (b) The recommended dietary allowances shall be met by offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents 19 and prepared by the use of standardized recipes. For facilities with a licensed capacity of 16 or fewer residents, standardized recipes are not required. Unless a resident chooses to eat less, the recommended dietary allowances to be made available to each resident daily by the facility are as follows: 1. Protein: 6 ounces or 2 or more servings; 2. Vegetables: 3-5 servings; 3. Fruit: 2-4 or more servings; 4. Bread and starches: 6-11 or more servings; 5. Milk or milk equivalent: 2 servings; 6. Fats, oils, and sweets: use sparingly; and 7, Water. (c) All regular and therapeutic menus to be used by the facility shall be reviewed annually by a registered dictitian, licensed dietitian/nutritionist, or by a dietetic technician supervised by a registered dietitian or licensed dietitian/nutritionist, to ensure the meals are commensurate with the nutritional standards established in this rule. Portion sizes shall be indicated on the menus or on a separate sheet. Daily food servings may be divided among three or more meals per day, including snacks, as necessary to accommodate resident needs and preferences. This review shall be documented in the facility files and include the signature of the reviewer, registration or license number, and date reviewed. Menu items may be substituted with items of comparable nutritional value based on the seasonal availability of fresh produce or the preferences of the residents. (d) Menus to be served shall be dated and planned at least one week in advance for both regular and therapeutic diets. Residents shall be encouraged to participate in menu planning. Planned menus shall be conspicuously posted or easily available to residents. Regular and therapeutic menus as served, with substitutions noted before or when the meal is served, shall be kept on file in the facility for 6 months. (e) Therapeutic diets shall be prepared and served as ordered by the health care provider. 1. Facilities that offer residents a variety of food choices through a select menu, buffet style dining or family style dining are not required to document what is eaten unless a health care provider’s order indicates that such monitoring is necessary. However, the food items which enable residents to comply with the therapeutic diet shall be identified on the menus developed for use in the facility. 2. The facility shall document a resident’s refusal to comply with a therapeutic diet and notification to the resident’s health care provider of such refusal. If a resident refuses to follow a therapeutic diet after the benefits are explained, a signed statement from the resident or the resident’s responsible party refusing the diet is acceptable documentation of a resident’s preferences. In such instances 20 daily documentation is not necessary. (f) For facilities serving three or more meals a day, no more than 14 hours shall elapse between the end of an evening meal containing a protein food and the beginning of a moming meal. Intervals between meals shall be evenly distributed throughout the day with not less than two hours nor more than six hours between the end of one meal and the beginning of the next. For residents without access to kitchen facilities, snacks shall be offered at least once per day. Snacks are not considered to be meals for the purposes of calculating the time between meals. (g) Food shall be served attractively at safe and palatable temperatures. All residents shall be encouraged to eat at tables in the dining areas. A supply of eating ware sufficient for all residents, including adaptive equipment if needed by any resident, shall be on hand. (h) A 3-day supply of non-perishable food, based on the number of weekly meals the facility has contracted with residents to serve, and shall be on hand at all times. The quantity shall be based on the resident census and not on licensed capacity. The supply shall consist of dry or canned foods that do not require refrigeration and shall be kept in sealed containers which are labeled and dated. The food shall be rotated in accordance with shelf life to ensure safety and palatability. Water sufficient for drinking and food preparation shall also be stored, or the facility shall have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority. Rule 58A-5.0020(2), Florida Administrative Code. 86. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 87. That based upon the review of records, observations, and interview, Respondent failed to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply, the same being contrary to law. 88. That Petitioner’s representative reviewed Respondent’s "Week 3" lunch menu scheduled for Wednesday, May 22, 2013, and noted the following items were to be served to the residents: a tomato based ground beef sandwich on a bun, potato fries, and salad. 21 89. That Petitioner’s representative observed the lunch served to the residents on May 22, 2013, at approximately 12:25 p.m., and noted the meal served was bologna sandwiches and vegetable soup. 90. That Petitioner’s representative interviewed Respondent’s staff member “B” on May 22, 2013, regarding facility dietary services and the staff member indicated as follows: a. Staff have to notify the administrator the day before to take food out of the locked freezer because only the administrator has the key. b. Staff have to substitute when what's scheduled on the menu is not brought out of the freezer by the administrator. c. The only residents who get snacks are the diabetics, near bedtime. d. Other residents purchase their own snacks 91. That Petitioner’s representative reviewed Respondent’s menu and substitution folder provided by the administrator during the survey and noted that the last record of a menu substitution was on October 7, 2012. 92. That Petitioner’s representative noted that no snacks were observed being offered to residents during the survey of May 22, 2013, which ended at approximately 4:30 p.m. 93. That Petitioner’s representative interviewed resident number four (4) on May 22, 2013, who indicated that residents are not given snacks. 94, That Petitioner’s representative interviewed resident number three (3) on May 22, 2013, who indicated that they do not get snacks and some of the staff might share some of their own snacks with them. 22 95. That Petitioner’s representative interviewed Respondent’s staff member “C” on May 22, 2013, who indicated that no snacks are available for the residents and admitted that she has brought snacks for residents with her own money 96. That Petitioner’s representative toured Respondent’s pantry and kitchen which was shown to the representative by staff member “B” on May 22, 2013 and noted: a. There were minimal amounts of non-perishable food for the daily use for the fifteen (15) residents who resided at the facility. b. There were no powdered dairy products and no water or bags for water. 97. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, who indicated as follows: a. Residents snack all day long. b. She bought them snacks and that ice cream or something is offered at 8pm or So. c. The emergency food supply was at her mother's house. 98. That the above reflects Respondent’s failure to record menu substitutions and thus the ability to evaluate the nutritional equivalency thereof, provide snacks to residents, and to maintain a required emergency food supply. 99. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 100. That Petitioner cited Respondent for a Class III violation. 101. That Respondent was provided a mandatory date of correction of July 6, 2013. 23 102. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 103. That based upon the review of records, observations, and interview, Respondent failed to provide snacks to residents, the same being contrary to law. 104. That Petitioner’s representative conducted the follow-up visit on July 23, 2013 beginning at 10:00 a.m. and concluding at approximately 4:00 p.m. and it was noted during that time that residents did not have free access to the facility kitchen and were not offered snacks. 105. That Petitioner’s representative interviewed resident number seven (7) on July 23, 2013, who indicated that the resident was required to give the facility money to purchase diabetic snacks for self and the “house, and that the facility expected the residents to purchase their own snacks. 106. That Petitioner’s representative interviewed resident number four (4) on July 23, 2013, who indicated that the facility does not provide snacks for the residents at times and the resident would purchase own snacks because if the facility did not have any, the residents would go without. 107. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013, who indicated that she was not at the facility to train staff to give snacks to residents separate from meals. 108. That the above reflects respondent’s failure to provide snacks to residents as required by law. 109. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than 24 class I or class II violations. 110. That Petitioner cited Respondent for a Class II violation. 111. That the same constitutes an uncorrected Class II violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (2013). COUNT VI 112. The Agency re-alleges and incorporates paragraphs one (1) and two (2) as if fully set forth herein. 113. That Florida law provides: (a) A facility with a limited mental health license shall maintain an up-to-date admission and discharge log containing the names and dates of admission and discharge for all mental health residents. The admission and discharge log required under Rule 58A-5.024, F.A.C., shall be sufficient provided that all mental health residents are clearly identified. (b) Staff records shall contain documentation that designated staff have completed limited mental health training as required by Rule 58A-5.0191, FLA.C. (c) Resident records for mental health residents in a facility with a limited mental health license must include the following ... 3. A Community Living Support Plan. Rule 58A-5.029(2)(a through c), Florida Administrative Code. 114. That on May 22, 2013, the Agency completed a licensure survey of Respondent’s facility. 115. That based upon the review of records, observations, and interview, Respondent failed to maintain an admissions and discharge log identifying limited mental health residents, and failed to ensure staff have completed required training related to limited mental health residents, the same being contrary to law. 25 116. That Petitioner’s representative interviewed Respondent’s administrator on May 22, 2013, who indicated as follows: a. She did not keep a list of residents identified as receiving limited mental health services, b. All but two (2) of the facility residents were receiving limited mental health services. 117. That Petitionet’s representative reviewed Respondent’s personnel records during the survey and noted as follows regarding staff member “‘B”: a. The staff member had been hired on October 12, 2013, in excess of six (6) months prior to the survey. b. The staff member’s record See, Rule 58A-5.0191, Florida Administrative Code. 118. That the above reflects respondent’s failure to maintain an admissions and discharge log identifying limited mental health residents, and failed to ensure staff have completed required training related to limited mental health residents. 119. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class II violations. 120. That Petitioner cited Respondent for a Class III violation. 121. That Respondent was provided a mandatory date of correction of July 6, 2013. 122. That on or about July 23, 2013, the Agency completed a re-visit survey of the May 22, 2013, survey of Respondent and its facility. 26 123. That based upon the review of records, observations, and interview, Respondent failed to maintain an admissions and discharge log identifying limited mental health residents, and failed to obtain and maintain community living support plans for two (2) of three (3) sampled limited mental health residents, the same being contrary to law. 124. That Petitioner’s representative reviewed Respondent’s presented admission discharge records and noted that Respondent did not maintain an admission and discharge log that identified limited mental health residents. 125. That Petitioner’s representative interviewed Respondent’s owner on July 23, 2013, who indicated that she was unsure of which residents were considered limited mental health residents and that she was not aware of the requirements for limited mental health residents. 126. That Petitioner’s representative reviewed Respondent’s records related to residents numbered seven (7) and eight (8) during the survey and noted: a. Both were limited mental health residents. b. No community living support plan for either resident had been obtained or maintained by Respondent. 127. That the above reflects respondent’s failure to maintain an admissions and discharge log identifying limited mental health residents, and failed to obtain and maintain community living support plans for limited mental health residents. 128. The Agency determined that this deficient practice was a condition or occurrence related to the operation and maintenance of a provider or to the care of clients which indirectly or potentially threatens the physical or emotional health, safety, or security of clients, other than class I or class I violations. 129. That Petitioner cited Respondent for a Class ITI violation. 27 130. That the same constitutes an uncorrected Class III violation as defined by law. WHEREFORE, the Agency intends to impose an administrative fine in the amount of five hundred dollars ($500.00) against Respondent, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(c), Florida Statutes (203).1 Respectfully Submitted, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION The Sebring Building 525 Mirror Lake Dr. N., Suite 330 St. Petersburg, Florida 33701 Telephone: (727) 552-1947 Facsimile: (727) 552-1440 walsht@ahca.myflorida.com at Af ‘ By: f/f // iby as’J. Walsh Il, Esq. fia’ Bat No. 566365 NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan 28 Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. 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 9232 to Sheryl Rainey, Administrator, Paradise Rest, Inc. d/b/a Paradise Rest, 1207 30 Avenue East, Bradenton, Florida 34208, and by regular U.S. Mail to Sheryl Rainey, Registered Agent for Paradise Rest, Inc., 2416 6" Avenue Drive East, Bradenton, FL 34208, on this 7 day of November, 2013. Mey ’ Thomas J. Walsh I Copy furnished to: Sheryl Rainey Registered Agent for Administrator Paradise Rest, Inc. Paradise Rest, Inc. d/b/a Paradise Rest 2416 6” Avenue Drive East 1207 30" Avenue East Bradenton, FL 34208 Bradenton, Florida 34208 (US Mail) (US Certified Mail) Patricia R. Caufman. Thomas J. Walsh II Field Office Manager Senior Attorney Agency for Health Care Admin. 525 Mirror Lake Drive, #330G St. Petersburg, FL 33701 Cnteroffice Mail) 29 ; STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Paradise Rest d/b/a Paradise Rest CASE NO, 2013010760 2013011244 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) Tadmit to the allegations of facts and law contained im 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«sA dispute the allegations of fact contained im 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. Tt must be received by the Ag -y Clerk at the address above within 2. ‘ays of your receipt of this proposed administrative actiou. 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 Ao 130 IIT 20 ‘RICK SCOTT ELIZABETH DUDEK \ \We -GOVERNOR SECRETARY . December 12, 2013 : CEIVED were 7 SHERYL RAINEY, ADMINISTRAGBLTY INTAKE UNI fe ee TESTS essa PARADISE REST 7096 9008 9143 1207 30TH AVENUE E pec 12 200. SENDE 2373 3825 BRADENTON, FL 34208 =RS RECORD ency for Hear istr: RE: Case Number: 2013012920 Care Adm" NOTICE OF INTENT TO DENY RENEWAL Dear Ms. Rainey: It is the decision of this Agency that Paradise Rest renewal application for the Assisted Living Facility license. to be DENIED. The Specific Basis for this determination is the applicant failure to meet minimum licensure ‘standards pursuant to Sections 408.812 & 408.815 (1) (c) & (d), Florida Statutes, (F. S.). On November 22, 2013, unlicensed activity complaint survey 2013011955 was conducted at 818 19" Street Court East in Bradenton, Florida. One unclassified deficiency was cited relating to failure to obtain a license before providing housing, meals and personal care services including assistance with medication for 4 of 5 persons. Ms. Marjorie Chatman was served a cease and desist letter for this unlicensed location. Ms. Chatman is 100% owner of Paradise Rest a licensed assisted living facility. Based on the unlicensed activity the renewal application is denied in accordance with Chapter 408, Part II; and Sections 429.14 (1) (h), (@) & (K), F. S. EXPLANATION OF RIGHTS Pursuant to Section 120.569, Florida Statutes, (F.S.) you have the right to request ani 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 OF RIGHTS FORM EXHIBIT | “4” 2727 Mahan Drive,MS#30 Tallahassee, Florida 32308 i Visit AHCA online at ahca.myflorida.com Paradise Rest _ December 12, 2013 Page #2 Sincerely, Shaddrick A. Haston, Manager Assisted Living Unit ° Bureau of Long Term Care Services SHispicerp Copyto: —. Saint Petersburg Field Office - 06 LTCOC District 06 Jan Mills, General Counsel Office STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH CASE NOS. 14-1042 14-1571 PARADISE REST, INC. d/b/a PARADISE REST, Respondent. / PARADISE REST, INC. d/b/a PARADISE REST, Petitioner, vs. DOAH CASE NO. 14-1082 AHCA NO. — 2013012920 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Paradise Rest, Inc. d/b/a Paradise Rest (hereinafter “Paradise”), 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, Paradise is an assisted living facility licensed pursuant to Chapters 429, Part I, and 408, Part II, Florida Statutes, Section 20.42, Florida Statutes and Chapter 58A-5, Florida Administrative Code; and EXHIBIT “9 WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Paradise, pursuant to Chapters 429, Part I, and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Paradise with a Notice of Intent to Deny on or about September 16, 2013, notifying Paradise of the Agency’s intent to deny Paradise’s renewal application for licensure to operate an assisted living facility in the State of Florida; and WHEREAS, the Agency served Paradise with an administrative complaint on or about November 21, 2013, notifying Paradise of the Agency’s intent to impose administrative fines in the sum of three thousand dollars ($3,000.00),; and WHEREAS, the Agency served Paradise with an administrative complaint on or about March 18, 2014, notifying Paradise of the Agency’s intent to revoke Paradise’s licensure to operate an assisted living facility in the State of Florida, and to impose administrative fines in the sum of two thousand seven hundred dollars ($2,700.00),; and WHEREAS, Paradise requested formal administrative proceedings by selecting Option “3” on the Election of Rights forms or by the filing of Petitions; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Paradise agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, informal proceedings under Subsection 120.57(2), Florida Statutes, formal proceedings under Subsection Page 2 of 7 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement: . Paradise agrees to pay five thousand seven hundred dollars ($5,700.00) in administrative fines to the Agency within one hundred eighty (180) days of the entry of the Final Order; and . Count VI of the administrative complaint in Agency case number 2013012931, seeking revocation of Paradise’s licensure to operate an assisted living facility in the State of Florida, shall be deemed dismissed; and This Agreement shall supersede the Notice of Intent to Deny; and . Florida law permits Agency action to deny or revoke licensure based upon the violation of the provisions of Chapter 408, Part II, 429, Part I, and Chapter 58A-5, Florida Administrative Code. See, § 408.815(1), Florida Statutes (2014). Should Respondent be cited for a Class I, a Class II deficient practice, or three (3) or more uncorrected Class III or IV deficient practices on any survey or surveys for a period of two (2) years from the date of the Final Order, the Agency may utilize said deficient practice(s), if proven, to revoke Respondent’s licensure in addition to and as a supplement to any provision of law authorizing an action for revocation of licensure; and Paradise agrees to obtain and maintain a consultant for a period of one (1) year from the date of a Final Order adopting this Agreement or until earlier relieved of Page 3 of 7 this provision by the Agency. Paradise shall cause its consultant(s) to complete quarterly, commencing the month of August 2014, a written report of the facility’s operations. Said quarterly reports shall include, but is not limited to, assessments of and actions taken related to medication administration and records, quality of care, risk management activities, staff training activities, and the adoption or amendment of facility policy and procedure. Said quarterly reports shall be maintained by Paradise and shall be available to the Agency upon request. 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, a). Paradise denies the allegations raised in the Administrative Complaints and Notice of Intent referenced herein, and b). The Agency asserts the validity of the allegations raised in the Administrative Complaints and Notice of Intent referenced herein, as modified by paragraph four (4) herein. No agreement made herein shall preclude the Agency from imposing a penalty against Paradise for any deficiency/violation of statute or rule identified in a future survey of Paradise, which constitutes an “uncorrected” deficiency from surveys identified in the administrative complaint. In such case, Paradise retains the right to challenge in an appropriate forum the deficient practices asserted in the Administrative Complaint. 7. The Agency may use the deficiencies from the surveys identified in the administrative complaint in any decision regarding licensure of Paradise, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency. Further, Paradise acknowledges Page 4 of 7 and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint and notice of intent to deny as modified herein. This agreement does not prohibit the Agency from taking action regarding Paradise’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Paradise for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and 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 forum, including any claims arising out of this agreement, by or on behalf of Paradise or related or resulting facilities/organizations. Nothing in this paragraph limits the parties from enforcement of this Agreement as provided in paragraph five (5) of this Agreement. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Paradise was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from Page 5 of 7 seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14. Paradise agrees that if any funds to be paid under this agreement to the Agency are not paid within one hundred eighty (180) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Paradise in the Final Order, or any portion thereof, owed by Paradise to the Agency from any present or future funds owed to Paradise by the Agency, and that the Agency shall hold a lien against present and future funds owed to Paradise 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. Page 6 of 7 20. ‘The following representatives hereby acknowle to enter inte this Agreement, Agency for Health Care Administration 2727 Mahan Drive Taliahassee, Florida 32308 patep: _[¢ ofiofiy “Stuart F. Williams. General C Florida Bar No. 670731 Agency for Health Care Adininistration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: Sfaler } : ‘Fnomas J. Walsh II, Senior Attamey Florida Bar No. 566365 Agency for Health Care Administration §25 Mirror Lake Drive, Suite 3306 St. Petersburg, Flog: Me DATED: |. ‘Theodore E. Mack, Esa. _ Florida Bar No. 200840 Powell & Mack 2700 Bellwaod Drive Tallahassee, FL 32303 Counsel for Paradise : ee —S Sees — Sheryi Rainey SJ Par Name: Position: Administrator Paradise Rest. fne. DATED: _&\2 ajo Page ? af? e¢ that they are duly authorized
The Issue The issues in both cases is whether the respondents violated section 480.046(1)(o), Florida Statutes (2012), which prohibits a violation of any provision within chapter 480 or any rule adopted pursuant to chapter 480, and, if so, what penalty should be imposed. In DOAH Case 14-2552PL, the specific issue is whether Respondent Hong Tang (Respondent Tang) violated section 480.0485 by using the massage therapist-patient relationship to induce or attempt to induce patients to engage in sexual activity outside the scope of the practice of massage therapy. In DOAH Case 14-2551, the specific issue is whether Respondent Tang owned and practiced massage therapy at Respondent Hong Tang Long Life Therapy Massage (HTLLTM) and whether Respondent Tang violated Florida Administrative Code Rule 64B7-26.010(2) by engaging in, or attempting to engage in, sexual activity, indirectly or directly, within the massage establishment and outside the scope of her practice of massage therapy.
Findings Of Fact Respondents hold Florida massage therapy licenses. At all material times, Respondent Tang, a 50-year-old female who was born in China and moved to the United States in 2008, owned and performed massage therapy at Respondent HTLLTM. In May 2013, an advertisement appeared in backpage.com with the telephone number and address of Respondent HTLLTM, although the ad named neither respondent. The ad described massage services and prices and contained three photographs, but neither the text nor the photographs contained any sexual content or promise of sexual activity. On August 22, 2013, at about 10:00 a.m., a deputy sheriff of the Palm Beach County Sheriff's Office telephoned Respondent HTLLTM and spoke with Respondent Tang about obtaining a massage. There is no indication of any sexual content in this brief conversation. Shortly after concluding his conversation with Respondent Tang, the deputy sheriff, who was dressed in casual clothes, drove to Respondent HTLLTM, where he entered the front door, posing as a customer. No one else was present in the establishment except Respondent Tang, who invited the deputy into a massage room. Nothing in the massage room indicated the availability of sexual activity. In the corner of the room was a basket. The parties disputed whether the basket contained sexual aids. It is unnecessary to determine the nature of the basket's contents because the deputy testified that he saw no sexual aids on entering the massage room and the contents of the basket were not visible unless someone stood beside the basket and looked down. Once they were in the massage room, the deputy and Respondent Tang negotiated a price for a massage, which was $50 for one half-hour. The deputy asked if the massage was "full service." This is the first reference to sexual activity in any conversation between the deputy and Respondent Tang. Respondent Tang responded with a hand motion, in which she formed a circle with her hand while moving it up and down, indicating by gesture that she would manually masturbate the deputy's penis. Respondent Tang did not verbally describe the service, but said that the additional cost would be $30. Signaling his intent to purchase a massage with masturbation of his penis, the deputy offered Respondent Tang $80 in the form of four $20 bills. After Respondent Tang accepted the payment, the deputy excused himself on some pretext, allowing other law enforcement officers to enter the establishment and execute a search warrant. Manual masturbation of the deputy's penis would have been outside the scope of practice of massage.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order finding Respondent Hong Tang and Respondent Hong Tang Long Life Therapy Massage not guilty of the allegations contained in the administrative complaints. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2014.
Findings Of Fact Respondent is licensed by the Florida State Board of Massage and holds current license No. 2218 by said Board. On July 8, 1975 Respondent was arrested by the Dade County vice squad during a raid on the 441 Health Studio and charged with procuring for prostitution and operating a house of prostitution. He was convicted of this misdemeanor after a plea of not guilty at the subsequent trial and sentenced to pay a fine of $150.00. Respondent was hired by the 441 Health Studio part time to give massages to customers so requesting. The 441 Health Studio did not hold itself out as a massage parlor although it was so characterized by the vice squad and news media when raided and charged with prostitution or other immoral offenses. Respondent retired from full time employment as a masseur in 1962 and is drawing Social Security retirement. At the time of his arrest he was supplementing his income by performing up to four or five massages per week. He received 50 percent of the $20.00 fee charged by the 441 Health Studio for each massage he gave. Respondent was not involved with the management of the 441 Health Studio and had no control over the employees of the studio. Respondent's massage license was the only one posted at the 441 Health Studio. The arrest report alleged that on July 8, 1975 a vice squad officer came to the studio and asked Respondent for a massage then asked him for a girl. After going with one Linda the officer arrested the girl and Respondent and the aforementioned convictions followed.
