The Issue The issues to be determined are whether Cristal Palace Resort PB, LLC (Cristal Palace), committed the statutory or rule violations alleged in the Administrative Complaints in Case Nos. 17-2149 and 17-2164, and in the Second Amended Notice of Intent to Deny docketed as Case No. 17-3849; and, if so, what penalty is authorized for the violations proven.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing, the following facts are found. The Agency is the state agency charged with licensing of assisted living facilities (ALFs) in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. The Agency is charged with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure and operation of ALFs. The Survey Process In furtherance of its statutory directive, the Agency conducts inspections, which are commonly referred to as surveys, of licensed providers and applicants for licensure to determine whether the applicant or licensee is in compliance with the regulatory scheme. Surveys can be in response to a complaint or to determine compliance as part of the biennial re-licensure process. Surveyors are Agency personnel who have been trained to conduct interviews, review documentation, and make observations at the surveyed facility as part of this process. Regardless of the reason for the survey, any noted issues are written up in a Statement of Deficiencies prepared by the surveyor or surveyors participating in the survey and referred to here as the survey documents. Deficiencies are classified by a “tag,” which is an identifier of the regulatory area found to be deficient. Where deficiencies are noted, the facility is usually afforded 30 days to correct any identified non-compliance. Section 408.811(5) also provides that the Agency may require submission of a plan of correction, which, if required, must be submitted within 30 calendar days after notification unless an alternative time frame is required. When a deficiency is noted during a survey, it is assigned a “class” to indicate its severity and the gravity of its probable effect on clients. The classes are established in section 408.813(2) and (3) as follows: (2)(a) Class “I” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physician or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Class “III” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine a provided in this section for a cited class III violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, a fine may not be imposed. Class “IV” violations are those conditions or occurrences related to the operation and maintenance of a provider or to required reports, forms, or documents that do not have the potential of negatively affecting clients. These violations are of a type that the agency determines do not threaten the health, safety, or security of clients. The agency shall impose an administrative fine as provided in this section for a cited class IV violation. A citation for a class IV violation must specify the time within which the violation is required to be corrected. If a class IV violation is corrected within the time specified, a fine may not be imposed. 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 term or condition of a license. Violating any provision of this part, authorizing statutes, or applicable rules. Exceeding licensed capacity. Providing services beyond the scope of the license. Violating a moratorium imposed pursuant to section 408.814. The number of surveyors that participate in a survey varies, based on the capacity of the facility to be surveyed. In the 17 survey documents at issue in this case, there were multiple surveyors at each visit. Cristal Palace Cristal Palace is a licensed ALF located in Palm Bay, Florida. Cristal Palace first opened in May 2015, under the ownership of Nuri Dorra. Mr. Dorra has experience in a number of industries, but prior to opening Cristal Palace, had no experience in running an ALF. In May 2015, Mr. Dorra became dissatisfied with the existing staff’s level of compliance with agency rules. On May 26, 2015, he wrote to AHCA requesting that the facility be placed in inactive status and assisted in relocating the facility’s four residents to another ALF, so he could use the inactive period to restructure the organization and, hopefully, bring things into compliance. Cristal Palace re-opened in August 2015. Cristal Palace is a 252-bed facility in what was once a hotel. During the course of the surveys, the census at Cristal Palace ranged from four residents to no more than 52 residents. The two Administrative Complaints and the Second Amended NOI are the result of a series of surveys beginning August 26, 2015, through January 15, 2017, in which the Agency cited Cristal Palace for a variety of deficiencies. The First AC charges Cristal Palace with two class II deficiencies, six uncorrected class III deficiencies, and seven unclassified deficiencies. The Second AC charges one class II deficiency and three unclassified deficiencies. The Second Amended NOI alleges that there are multiple class III and unclassified violations that remain uncorrected. To ensure that only those violations actually charged in the Administrative Complaints and the Second Amended NOI are addressed, the factual allegations are addressed count- by-count as alleged in the charging documents. First AC Count I Count I of the First AC contains allegations regarding resident 5 and concerns related to the administration of insulin. Colleen Monroe is a now retired surveyor who participated in a survey conducted August 12, 25, and 26, 2015, for which a survey document dated August 26, 2015, was prepared. Ms. Monroe has been a registered nurse since 1971. While Ms. Monroe was touring the facility on or about August 12, 2015, she saw paramedics enter resident 5’s room, and she followed them in and talked to resident 5. Resident 5 was alert and oriented, and indicated that her blood sugar was high. While Ms. Monroe was present, resident 5’s blood sugar was taken, and it was over 500. Staff for Cristal Palace had called 911, and resident 5 was transported by ambulance to the hospital. Ms. Monroe reviewed the resident records for resident 5 and believed, based on her review of the physician’s orders and the Medication Observation Record (MOR), that the resident was not receiving the insulin her doctor had ordered. She testified that she reached this conclusion because the physician had ordered medium sliding scale insulin and the MORs did not indicate that she was receiving the insulin. An MOR is a document where the staff member giving insulin would document the time of day, and dosage of medication given. The MOR is a chart: on the left hand side is the order for the medication to be given with blocks for each day of the month. Staff administering the medication would initial the appropriate block on the front and sign the back. Ms. Monroe testified that the law does not allow unlicensed staff (defined by statute to include medical technicians (med techs) and certified nursing assistants (CNAs)) to draw up insulin, but neither her testimony nor the First AC, with respect to Count I, identifies the statute or rule that addresses this particular issue.2/ She testified that resident 5 would be unable to draw up her own insulin because of her retinopathy diagnosis, and that this patient needed a level of care that required nursing to be available at all times. However, there was no evidence regarding the progression of this particular patient’s retinopathy, and the extent to which it impaired her vision at the time of the survey. Ms. Monroe was not in the room when the 911 call was made and did not recall looking at the observation logs, but believed she would have looked at everything while she was there. She was not present when the resident’s insulin was given. No evidence was presented to indicate whether the insulin provided to resident 5 before meals had to be drawn up for each dose (which requires a nurse) or whether a pre-filled insulin syringe or pen was used (which does not). The Agency did not provide the doctor’s order, the MOR, or the resident’s health assessment form, commonly referred to as an “1823.” Although the First AC refers to an interview with the facility’s marketing director regarding resident 5’s admission, that individual did not testify, and any reference to the interview in the survey or in Ms. Monroe’s testimony is hearsay.3/ Cristal Palace supplied a copy of resident 5’s 1823. The form, which was completed on August 6, 2015, and signed by resident 5’s physician, indicated that the resident did not require 24-hour nursing care, and that she needed assistance with her medications as opposed to needing medication administration. Ms. Monroe disagreed with the 1823 as completed. A partial MOR4/ for resident 5 indicates that she was provided Humulog insulin each day since her admission on August 8, 2015, at 8 a.m., noon, and 6 p.m. On August 12, 2015, the MOR reflects that the insulin was provided in the morning at 8:00, as well as 20 units of Humulog at 9:22 a.m., at the patient’s request. While Ms. Monroe testified that she would have expected the insulin to be given prior to each meal, there was no evidence presented to indicate what time meals were served in relation to the administration of insulin noted in the record. However, the administration times noted in the MOR correspond to what one could infer to be appropriate meal times. The Agency did not prove a class II violation with respect to Count I. Count II Count II of the First AC addresses whether the supervision of the administrator of the facility is adequate. It incorporates the allegations of Count I and asserts that Cristal Palace’s administrator failed to supervise and administer the operation and maintenance of the facility through a series of allegations, including the management of all staff and the provision of appropriate care to all residents, as required by law. Specifically, paragraph 23 alleges that the administrator failed to ensure that a licensed nurse was available to administer medications to resident 5. To support the allegation, the First AC restates allegations related to the MOR, physician’s order, and 1823 form for resident 5, as well as statements attributed to a marketing director and “nurse C,” neither of whom are identified by name or testified at hearing. Count II alleges at paragraph 24 that the administrator failed to ensure that the facility maintained accurate and up-to- date MORs, based upon staff’s failure to document the administration of Tylenol 324 for resident 5. No testimony was presented at hearing regarding the administration of Tylenol to any resident. On August 12, 2015, the day that resident 5 was taken by ambulance to the hospital, Ms. Monroe walked back into resident 5’s room once the ambulance left. She found resident 5’s medication in an unlocked refrigerator in the room. She did not know whether the facility staff returned to her room to retrieve the medication and lock it up after the EMTs took resident 5 out of her room to the ambulance. The evidence presented did not indicate whether this resident kept her medication in her room, or whether the facility typically stored her medication centrally. If the resident typically kept insulin in her room, which is permitted under the Agency’s rules and likely to be the case, given that the surveyor found it in her refrigerator, the deficiency would have been caused by the fact that the room was unlocked while the resident was being transported to the ambulance. As noted above, the surveyor did not know whether staff came back to secure the room, and, apparently, did not stay long enough to see. If staff had a choice between locking the room first or attending to the resident to make sure she was being transported safely, and then returning to the room, the latter seems to be the wiser choice. Count II also cites the administrator for failing to ensure that the facility maintained a written work schedule reflecting the facility’s 24-hour staffing standards. Surveyors asked for but did not receive the staffing schedule for the month of May 2015, and for August 3 through 12, 2015. No evidence was presented to support the allegation that the administrator failed to ensure that trained dietary staff was available to prepare meals and to ensure that food service was provided in a safe manner, other than a one-sentence summary of what was stated in the survey. Specifically, no testimony was presented by the Agency regarding unlabeled food or food past its expiration date, or about any county health inspection reports issued in August 2015, related to either food or the physical plant.5/ Cristal Palace presented copies of county health inspections from August 3, 2015 (regarding group care), and August 17, 2015 (for food inspection), indicating that the inspections were satisfactory. Similarly, no evidence was presented regarding lights that were not operable. Paragraph 31 includes several allegations regarding resident 5’s use of oxygen. Although Ms. Monroe testified that this resident had oxygen ordered, there is no mention of oxygen use in the 1823 form signed by her doctor, and the Agency did not provide any order for oxygen to substantiate this claim. Moreover, while the surveyor felt that resident 5 should have been a resident receiving extended congregate care (ECC) services for which an ECC plan must be prepared, the determination for ECC services is made based upon the physician’s order as identified in the 1823, which did not indicate that 24/7 nursing services were required. The surveyor’s disagreement with the 1823 does not serve as a basis for a deficiency. Surveyor Lorienda Crawford testified that no activities schedule was posted. The applicable rule requires that an activities calendar must be posted somewhere where residents congregate. Ms. Crawford did not identify where she looked for an activities calendar, but she testified that she did not see or hear any activities the day she was there. The facility has not one, but two rooms designed for activities: one with a pool table and one that is a combination game room/craft room where bingo is played, and there were multiple references to activities, such as bingo and karaoke during the hearing. The facility also provided copies of calendars for May, July, and August 2015.6/ The evidence is not persuasive that activities calendars were not posted. No testimony was presented at hearing that the facility failed to notify AHCA of a change in use of licensed space, or the use of resident rooms by staff members. There was also no testimony at hearing regarding the failure to ensure that the facility was accessible to Agency personnel for inspection. No testimony was presented at hearing regarding any failure to provide a 45-day notice of discharge to residents, or any problem related to a resident being able to access funds the facility was holding for the resident. Ms. Monroe testified that the tag against the administrator for failure to maintain control of the facility was considered a class II deficiency, primarily because of the issues related to resident 5 and the administration of insulin. Inasmuch as most of the allegations in Count II were not demonstrated by clear and convincing evidence, a class II deficiency is unwarranted. The only assertion actually proven is that there were no staffing schedules for the periods identified, which would more appropriately be considered a class III. This single deficiency does not show a lack of control by the administrator. Count III Count III of the First AC alleges that Cristal Palace failed to conduct appropriate Level 2 background screening and to maintain copies of the screening results in staff personnel files. Section 408.809 requires a Level 2 background screening for the administrator; any financial officer; person with a controlling interest; and any person seeking employment with a facility that may be required to provide personal care or services directly to clients or may have access to client funds, personal property, or living areas. Background screening must be conducted every five years, and the specifics regarding the process to be followed, and the offenses which screening will identify, are extensive. In addition to the background screening for employees for those who have not been screened within the last five years, if an employee has worked at another licensed facility and has undergone background screening at the other facility, he or she must provide an affidavit that there has not been a break in employment of more than 90 days, and he or she has not committed any of the offenses that would disqualify him or her from employment. During the August 25, 2015, survey, surveyors identified four employees for which copies of background screening results were not located in the staff member’s paper personnel file. Both section 408.809 and rule 58A-5.024 allow for records to be maintained in an electronic format, as long as personnel are readily available to access the data, and the facility produces the requested information upon request. The four staff members are identified as staff members “C,” “E,” “F,” and “H.” Staff member C (Sammy Cimanes) did not have a paper copy in his file, but the website where background screening is recorded showed that he was eligible to work as of May 11, 2015. Ms. Monroe testified that she would have noted on her laptop that he was eligible on the date of the survey (and her notes so reflect), but she could not specifically recall doing so. Staff member E, Flavia DiSusa, is identified by the surveyor as a chef. Ms. Monroe’s notes indicate that an affidavit of eligibility was in his file, but the facility was not cited for not having the affidavit. It was cited for the failure to have the actual background screening in his file. The background screening documents for Flavia DiSusa indicate that DiSusa is a female, not a male as Ms. Monroe described. In any event, she was not eligible until September 8, 2015, after the August 25, 2015, survey. The deficiency was corrected within 30 days. Staff member F, Kathleen Hall, is a CNA whose file contained an affidavit regarding eligibility dated July 21, 2015, but no background screening. AHCA’s background screening website indicates that Cristal Palace submitted her employment screening request on August 20, 2015, which was before the survey report was filed, but after the surveyor requested the records. This deficiency was also corrected within 30 days of the survey. No realistic findings can be made with respect to staff member H. At hearing, Ms. Monroe indicated that she spoke to staff member H in the hall, and the individual identified herself as a housekeeper. Ms. Monroe recounted a conversation she had, which is clearly hearsay. There is no last name for staff member H and no file for her, and the person with whom Ms. Monroe dealt during this survey visit had never met her. While Ms. Monroe testified that the person told her she was a housekeeper, Ms. Monroe provided no identifying information to confirm that information, such as what she was doing or wearing that would have indicated that she was indeed working for the facility. There is simply not enough information about this person to make a finding that she was actually an employee of the facility, much less to make findings regarding the status of any background screening. In terms of a deficiency for failing to conduct background screening, the number of employees that are not properly screened is not the issue. A deficiency would still exist. Here, there were two individuals for whom the background screening was not completed at the time of the survey, and both were corrected within 30 days. This violation is an unclassified violation. Count IV Count IV seeks to assess a survey fee pursuant to the provisions of section 429.19(7), to cover the cost of conducting an initial complaint investigation that results in a finding of a violation that was the subject of a complaint, or monitoring visits conducted under section 429.28(3). The problem presented in this case is that Agency witnesses testified that while investigating a complaint, they could and would cite any deficiencies that they discovered while at the facility (and rightfully so). While each surveyor specified whether she was at the survey for a complaint survey or a monitoring survey, none of them identified the specific complaints that led them to survey the facility. Without knowing the subject of the complaint, it cannot be found that a violation was found that was the subject of the unidentified complaint. Count V Count V alleges a deficiency, based upon the failure to obtain or maintain a physician’s order for a therapeutic diet that reflects the dietary limitations prescribed. The allegations are related to a resident identified as resident 4 in Agency Exhibit 3. Ms. Monroe, the surveyor responsible for this tag, never identifies the resident in any fashion, other than to say the resident was concerned about her diet. While the First AC asserts facts related to the resident’s 1823, dated August 26, 2015, and an order documenting a calorie controlled diet, neither document was offered into evidence by the Agency. At hearing, Ms. Monroe was asked whether she saw an order for the resident that specified a number of calories, and she stated that she had seen an order for this resident that specified 2,000 calories. She cited the facility because she did not believe that it provided the diet for the resident and did not have a diet that met the 2,000-calorie diabetic diet. She did not know whether this resident was on a list in the kitchen of residents needing a diabetic diet and did not remember if she asked for such a list. The Agency classified this deficiency as a class III. The evidence presented is not sufficient to support the allegations. Count VI Paragraphs 60 through 63 (Count IV) of the First AC are identical to paragraphs 82 through 85 (Count VI). Count IV is addressed in Findings of Fact 40 and 41. No further findings regarding these allegations are necessary. Count VII Count VII alleges improprieties regarding the procedure for assistance with self-administration of medications occurring during the December 17, 2015, survey. Surveyor Vilma Pellot testified that she observed an unidentified staff member perform a “med-pass” with the patient identified in the survey as resident 9. The purported violation is that the staff member did not read the label of the medication: she simply told the resident what medications she was giving the resident. Ms. Pellot was asked at hearing whether a staff member had to read the entire label to a resident, including the pharmacy name, number of refills, refill date, dosage, etc. She testified that the drug name, frequency, and dosage are required. The staff member told the resident the medicines she was receiving, but did not recite the dosage and frequency for each. A follow-up visit to the facility related to this survey occurred May 24, 2016. Ms. Pellot observed a second med-pass, and similar to the med-pass in December, the staff member sanitized her hands, reviewed the MOR and retrieved the resident’s medications, placed the medications in a small cup and gave them to the resident, identifying the medications by name. Resident 3 in this case asked for Lorazapam, which was an “as needed/as requested” medicine, and the staff member went through the same procedure, retrieving the Lorazapam and placing it in a small cup, taking the medication to the resident and verbally identifying the medication to the resident before signing the MOR. The staff member told the resident the name of each drug she received, but did not recite the dosage and frequency. Neither the statute nor the rule uses the phrase, “name, dosage, and frequency,” or anything along those lines. Count VIII Count VIII deals with problems found with respect to resident records during a complaint survey conducted December 17, 2015. The First AC identifies a resident as resident 4, and alleges that the facility failed to maintain an MOR for this resident for October 2015 and that this resident needed assistance with medication (thus necessitating the use of the MOR). When asked about this issue with respect to the December 2015 survey, the surveyor did not identify a specific patient, by name, number, initials, or otherwise, but simply read from the survey document that the October 2015 MOR was not available.7/ The Agency did not introduce into evidence the 1823 referenced in the First AC to establish that the resident actually required assistance with her medications, or any other orders by the health care provider. The Agency conducted a follow-up visit on May 25, 2016. Like many of the follow-up visits in this case, the follow-up visit for the December 17, 2015, survey, was six months after the initial survey, as opposed to 30 days. At that follow-up visit, the Agency alleges that resident records for two of the nine records reviewed were not sufficient. With respect to resident 1, the Agency alleged that the informed consent regarding assistance with medications from unlicensed staff, dated February 18, 2016, did not indicate whether or not the unlicensed staff, who provided assistance, would be supervised by licensed staff; that the 1823 form dated April 26, 2016, did not contain the name of the health care provider, the provider’s medical license number, or the address of the provider conducting the examination; and that this 1823 did not indicate if the resident needed assistance with medications. The Agency did not seek to admit the informed consent form or the 1823 form about which it complained. Moreover, rule 58A-5.024(3)(g) provides that the written informed consent form must be maintained if such consent is not included in the resident’s contract. The Agency presented no evidence regarding the resident’s contract and whether the appropriate consent was contained therein. The Agency contends that the 1823 dated November 15, 2015, for resident 3 did not indicate whether resident 3 had any allergies. Ms. Pellot, the surveyor who cited this deficiency, could not remember the resident’s name, and the Agency did not submit a copy of the 1823 at hearing. When shown an 1823 dated November 15, 2015, for resident M.A. (Cristal Palace Ex. 38), she could not say whether this was the document she saw. Exhibit 38 contains the abbreviation “NKDA,” which Ms. Pellot acknowledged is understood to mean no known allergies. While the First AC, paragraph 120, indicates that when the assistant administrator was interviewed, she stated that the purportedly missing items were overlooked, Ms. Pellot did not testify regarding this conversation. Without knowing the context in which the statement attributed to the assistant administrator was supposedly made, it is not sufficiently compelling to support the conclusion that a deficiency existed, especially where, as here, the documents were not supplied for review, and the exhibit supplied by Cristal Palace appears to contradict the surveyor’s findings with respect to resident 3. The Agency did not demonstrate a class III deficiency with respect to the records of residents 1 and 3. Moreover, the Agency did not demonstrate an uncorrected Class III deficiency with respect to these records. Count IX Count IX alleges violations with respect to documentation related to staff in-service training identified during the October 21, 2015, survey. Rule 58A-5.0191 identifies the in-service training requirements for those working in ALFs. There are different requirements for different types of staff. In other words, the training required of direct care staff is different than what is required for those who do not provide direct care, and all staff must receive in-service training regarding the facility’s resident elopement response policies and procedures within 30 days of employment. During the October 21, 2015, survey, surveyor Vanessia Bulger reviewed staff files for eight staff members, and found that the documentation regarding in-service training for five of the staff was insufficient. The staff members were identified as A, B, C, D, and F. Staff member A is Kimberly Travis. According to the chart attached to the October 21, 2015, survey, her date of hire is September 1, 2015. The survey indicates, and Ms. Bulger testified, that Ms. Travis’ personnel file did not contain documentation that she had received training for reporting major and adverse incidents; the facility’s emergency procedures; the facility’s elopement response policies; and safe food handling practices. The First AC does not allege whether Ms. Travis is a direct caregiver, which impacts what training is required for her. However, no one disputed that she was a CNA. In its Proposed Recommended Order, Cristal Palace acknowledged that Ms. Travis did not receive the missing training until December 2015; so clearly, documentation was not available during the October 21, 2015, survey. There was no testimony presented regarding staff member B, who is identified in the survey matrix as Nicola Merriell. The matrix indicates “did not review,” and there is no information regarding her training documentation included in the employee matrix attached to the survey document. Staff member C, Evertina Bethelmy, was hired on September 9, 2015. The First AC alleges that her personnel file lacked documentation for reporting resident abuse and neglect; resident rights in an ALF; the facility’s elopement response policies and procedures; reporting major and adverse incidents; the facility’s emergency procedures; and safe food-handling practices. Ms. Monroe testified to this effect, and there was no indication that this training was actually received, but not documented prior to the surveyor’s visit. Staff member D is identified in the survey matrix as Isabel Ong, a nurse. No testimony was presented regarding the documentation for her training. Nonetheless, it is sufficient that the files for two staff members did not contain the appropriate documentation related to training requirements. This failure is appropriately considered a class III deficiency because of the potential for harm to residents, based upon the failure to be appropriately trained to care for residents. On March 1, 2016, the Agency returned to the facility and again sampled employee files (although not necessarily the same ones) for compliance with in-service training. The First AC alleges that four staff members had no documentation related to required training. While the First AC alleges what documentation was missing, as well as the personnel for whom it was missing, testimony at hearing does not address that information. The matrix attached to the March 1, 2016, survey identifies omissions for three employees as opposed to four. The only testimony the undersigned could locate on this issue and the only citation provided by the Agency in its Proposed Recommended Order is the single sentence, “when I reviewed the personnel records there was no evidence of certificates of training.” This testimony, standing alone, is insufficient. Ms. Pellot testified, consistent with the testimony of her colleagues, that she does not review any document that is sent in by the facility in the 30 days after a survey. She simply looks at what is there when she conducts the revisit. Cristal Palace presented Agency reports that show inspection details, including tags found, and when and if a deficiency is cleared. With respect to in–service staff training, the report indicates that the deficiency cited on October 21, 2015, and reviewed again on March 1, 2016, was not cleared until July 17, 2017, well beyond the time period contemplated by statute. It is unclear from the record whether the information was submitted on an untimely basis, or whether the Agency simply did not review the information submitted until a much later date. The evidence supports finding a class III deficiency, but does not support a finding of an uncorrected deficiency. Count X Count X alleges that on May 25, 2016, the Agency completed a follow-up survey to the March 1, 2016, survey described above. At this time, the Agency alleges that there still existed an issue with respect to documentation of staff training, and that three of four staff members whose files were reviewed did not have some of the required documentation. Surveyor Linda Gulian-Andrews testified with particularity regarding the missing documentation, and, as with the tag discussed in Count IX, the Agency report for this tag shows that the deficiency was cleared July 17, 2017, well after 30 days. Mr. Dorra, Cristal Palace’s owner and former administrator, testified that Cristal Palace had instituted a monthly audit of employee files to ensure that all documentation was accounted for. While it may have been Mr. Dorra’s direction that this audit be completed each month, it does not appear that his administrative staff followed through with the directive consistently. This deficient practice constitutes a class III deficiency. It is an uncorrected deficiency at the time found, but has been cleared before the institution of this proceeding. Count XI Rule 58A-5.019 requires that staff must provide a statement from a health provider documenting that the staff has no signs or symptoms of communicable disease. The statement must be made based upon an examination performed no earlier than six months prior to submission of the statement. Employees must also submit documentation of a negative tuberculosis (TB) examination on an annual basis. During the October 21, 2015, survey, the Agency reviewed personnel files and found that the file for staff member B did not contain the appropriate documentation. Specifically, the First AC alleges that the staff member was a direct caregiver hired on September 19, 2015, and that the file for that person reflected a TB test result dated April 8, 2014, more than a year prior to her employment at the facility. The First AC also alleges that this staff member did not have a statement that she was free from communicable disease. The employment matrix attached to the October 21, 2015, survey, does not have a staff member identified as staff member B. The staff member listed in the column between staff member A and staff member C (but not identified as staff member B) is Ticola Merriell. Her date of hire is listed as September 21, 2015, as opposed to September 19, 2015. The matrix listed Ms. Merriell as a dietary employee and notes, “did not review.” The survey document refers to a conversation with the administrator, indicating that the staff member (referred to as male) had not yet brought in a doctor’s statement. This makes no sense when coupled with the matrix attached to the survey. The Agency did not demonstrate this deficiency as charged in the First AC by clear and convincing evidence. The Agency returned for a revisit survey on March 1, 2016. At that time, it again cited the facility for failing to have a negative TB test and statement regarding communicable diseases, this time for staff member D. Staff member D is Stephanie Flores. Her file contains two TB test results, one dated February 17, 2014, and the second one dated April 7, 2016. Neither test is in the window of time required by rule, in that the first one is well over six months prior to the date of hire, and the second one is more than 30 days from the date of hire. The survey document refers to a conversation with the administrator, in which he indicates that the staff member was going to be terminated that day. Obviously, that did not happen, or Cristal Palace would not have a TB test for that staff member dated more than a month later. While the staff member may be clear of TB presently and presumably able to work, this deficiency as a practical matter cannot be cleared if the employee is unable to obtain documentation that she submitted to a TB test during the appropriate seven-month window. As a practical matter, the facility should have terminated this employee when the TB test was not provided within the first 30 days. The Agency appropriately classified this as a class III deficiency. Count XII Count XII seeks to impose a survey fee to cover the cost of monitoring visits to verify the correction of violations. Based on the findings with respect to Counts X and XI, Cristal Palace is subject to a survey fee of $500. Count XIII Count XIII alleges a failure to complete and timely submit an adverse incident report regarding the involvement of law enforcement cited during the Agency’s June 30, 2016, complaint survey. Adverse incidents are defined by section 429.23(2), and included within its definition is “an event that is reported to law enforcement or its personnel for investigation.” There are two types of reports that must be submitted to the Agency when there is an adverse incident: the first (one-day) must be filed within 24 hours and relates what happened. The second (15-day) must be filed within 15 days and details the results of any investigation that is undertaken, and any corrective actions the facility has taken to prevent a recurrence. Resident S.G. is a resident who keeps her medication locked in her room. On June 24, 2016, she signed for her prescription of Oxycodone. The prescription contained and S.G. received 120 pills. However, she came back to the med tech, who had given her the medication, and claimed that she had received only 60 of the 120 pills. Cristal Palace called the police and Mr. Dorra escorted the police to S.G.’s room. With her permission, the locked cabinet where she kept her medications was opened, and all 120 pills were there. The police did not file a police report. Likewise, Cristal Palace did not file an incident report, based on its belief that one was not necessary, given that the police did not actually investigate and no police report was filed. However, the need to file an adverse incident report is triggered not by the filing of a police report, but by calling law enforcement in the first place. The Agency correctly determined that the failure to file an adverse incident report is an unclassified violation, for which a fine of up to $500 may be imposed. Mr. Dorra’s interpretation of the requirement to file an adverse incident report is a reasonable, if incorrect, interpretation. The fine should not be the full amount; rather, a fine of $250 is warranted. Count XIV Count XIV also deals with background screening, cited as part of a survey on October 21, 2015. It alleges that a surveyor, Ms. Pellot, interviewed a housekeeper, whose name she could not remember. The First AC identifies her as staff member F. According to Ms. Pellot’s testimony, this person identified herself as a housekeeper who just could not resist the urge to assist residents, even though she was not hired to do so. She had not been sent for fingerprinting, but claimed that the administrator told her she was in the registry, which she did not understand. There is no employment file for this person. At hearing, it appeared that this housekeeper was the same person identified in Count III, for which there was no file as well. However, the person with whom Ms. Pellot spoke claimed that she was hired in September 2015, after the previous survey. The matrix attached to the survey document does not identify a staff member F or a housekeeper. Ms. Pellot acknowledged that staff member F was not included in the matrix, but claimed that all of her information was included in Ms. Pellot’s notes, which she did not have at hearing. A motion in limine filed by Cristal Palace specifically questioned whether Cristal Palace had been provided with all of the information related to the two people identified as housekeepers, and the Agency’s response to the motion did not address the issue. Moreover, neither Ms. Monroe’s testimony (regarding the earlier survey) nor Ms. Pellot’s testimony with respect to staff member F provided any information about these supposed housekeepers to explain why the surveyors believed them to be staff as opposed to a confused resident. There is no testimony that she was wearing a uniform associated with Cristal Palace or was performing housekeeping duties during the interview. Without a name for staff member F, it is not clear that the comments attributed to the administrator would even be about the same person. Moreover, it seems unlikely that a person could be an employee without any type of employment file, given that at least some of the information in an employment file would be necessary to process payroll. At bottom, there are just too many questions about staff member F to determine by clear and convincing evidence that she was even an employee at the facility, much less that she was an employee whose background screening was not completed. Count XV Count XV deals with a criminal background check issue observed during the October 1, 2015, survey. Section 408.809(2) provides that where a staff member has submitted to a Level 2 screening at prior employment within the last five years, the prior screening may be accepted, provided that the person submits an attestation that the screening requirements at the prior employment are equivalent to those specified in sections 408.809(2) and 435.04, Florida Statutes, and that the person subject to the screening has not had a break in service from a position requiring Level 2 screening for more than 90 days. Ms. Bulger testified that during the October 21, 2015, survey, one of the employees whose file she reviewed had no affidavit, but she could not recall the employee’s name. After reviewing the survey document, Ms. Bulger testified that Evertina Bethelmy was hired on September 8, 2015, and had Level 2 screening results dated February 15, 2015, which means that her screening was six months and approximately three weeks before her hire date. Her records also show that she was employed as a home health aide as of August 7, 2015, but, according to Ms. Bulger, there was no attestation in the file. Cristal Palace produced a signed attestation from Ms. Bethelmy dated September 8, 2015, her hire date. Ms. Bulger acknowledged that when she pulled up Ms. Bethelmy’s data on the computer, she was eligible. She did not review the documents Cristal Palace provided in the days immediately following the survey. As noted at hearing, the attestation had to be in the file at the time of the survey. Given Ms. Bulger’s inability to remember the name of the employee at issue, it is doubtful that her memory regarding what was in the file is nevertheless clear. This unclassified alleged violation was cleared by the Agency on March 1, 2016, and is not substantiated. Count XVI The Agency seeks to impose a survey fee related to Counts X and XI. This count is identical to Count XII, which also seeks to impose a survey fee for Counts X and XI. Count XVII Count XVII alleges a violation based on the facility’s alleged failure to comply with the requirement to register and maintain its employees in the Care Provider Background Screening Clearinghouse (clearinghouse). Section 435.12 requires that the Agency, in consultation with the Florida Department of Law Enforcement, create a secure web-based system referred to as the clearinghouse, which shall allow the results of criminal history checks provided to the specified agencies for screening to be shared among those agencies when a person has applied to volunteer, be employed, licensed, or enter into to a contract that requires screening. Section 435.12(2)(b) requires that employers of persons subject to screening must register with the clearinghouse and maintain the employment status of all employees within the clearinghouse. Initial employment and any change in status must be reported to the clearinghouse within ten days. The First AC alleges that based upon a record review conducted during a complaint survey on June 8, 2016, Cristal Palace had failed to maintain its employees in the clearinghouse. Specifically, while the facility had 25 employees at that time, the Agency alleges that only seven names were contained in the clearinghouse for the facility, and that only three of those were for current employees. The Agency did not submit a copy of the clearinghouse roster into evidence. It also submitted nothing to identify who the employees, identified at paragraph 224 as employees A through G and L through Y, are. While the survey indicates that there were discussions with an assistant administrator regarding the roster, that administrator was not identified, and the surveyor could not affirmatively identify which staff person she spoke to. The Agency identified the alleged violation as an unclassified violation. However, the Agency did not demonstrate a violation by clear and convincing evidence. Count XVIII Count XVIII of the First AC alleges issues related to background screening discovered during the complaint survey conducted on June 8, 2018. The Agency alleges that staff member B’s file did not contain a Level 2 criminal history background screening or attestation, and the staff member was not located in the Agency’s criminal background screening database. The Agency also alleged that with respect to staff member C, the criminal history eligibility record in the employee’s file read “new screening required,” and the same information was noted in the Agency’s background screening database. The Agency did not introduce any matrix to the survey document to identify these staff members; did not introduce any portion of the staff members’ personnel files; and did not provide any testimony to identify the staff members whose files it found to be deficient. It also did not provide any evidence from the database to support the allegations that one employee was not in the database, and that the database noted that new screening was required for the other employee. The violation is not supported by clear and convincing evidence. The Agency listed this count as supporting an unclassified violation. Inasmuch as the allegations are not supported by clear and convincing evidence, there is no basis for an unclassified violation. Count XIX Count XIX deals with Cristal Palace’s financial stability to operate. The First AC alleges that based upon review of financial account reviews and interviews as part of its June 2, 2016, survey, Cristal Palace did not demonstrate financial stability to continue the provision of care and services to residents. The First AC alleges that it interviewed several staff members (though unnamed or identified in any way), who stated that paychecks were being denied for insufficient funds; the food vendor refused to deliver food supplies until the account was paid; staff were buying food and supplies from their own funds; and there was concern about staff not coming to work because of compensation issues. Several statements were attributed to staff members “K,” “L,” “J,” “F,” “E,” and “G.” These staff members were not identified and did not testify at hearing. No food vendor testified at hearing. The First AC makes several allegations regarding checks that were written on particular days, and that alleges there were insufficient funds available to cover those checks, as well as allegations regarding checks that bounced. However, no bank statements, registers, checks, or other documents were admitted into evidence. Mr. Dorra, Cristal Palace’s owner and former administrator, testified about the financial condition of the facility. He acknowledged that early on, there were some problems with the accuracy of paychecks, because the employees did not use the fingerprint identification equipment properly to check in and out, creating issues in terms of the actual hours worked. Mr. Dorra bought a new, simpler system, and addressed the paycheck discrepancies one by one. He testified that there was an instance where a food vendor delivery person was not paid the day of the delivery, and he contacted the vendor the following day to arrange payment. An employee who testified confirmed that there was a problem with her paycheck early on, but that the problem had been addressed, and there were no problems after that. At the Agency’s request, Cristal Palace submitted to the Agency completed proof of financial ability to operate forms, dated July 4, 2016. This cited deficiency was cleared by the Agency on July 10, 2017. The Agency did not prove the cited deficiency for financial inability to operate by clear and convincing evidence. Count XX Count XX is a “catch-all” provision, asserting that the information that Cristal Palace provided regarding its financial ability to operate failed to demonstrate that it had the financial ability to operate as defined by law. Count XX also alleges that Cristal Palace has been cited with five violations related to the failure to comply with background screening standards and has been cited with a total of 15 violations of law subject to administrative monetary sanctions over the period August 26, 2015, through June 8, 2016. The Agency alleges that these 15 violations constitute a pattern of deficient practice. While the Agency contends that Cristal Palace failed to demonstrate that it has the financial ability to operate, the Agency did not introduce into evidence any of the financial information it received, and presented no testimony explaining that information. There was no expert testimony to address what was required for an ALF to operate or how the information submitted fell short. Of the 20 counts alleged, the Agency proved a small part of Count II, but did not prove that it was a class II; and proved violations in Counts III, IX, X, and XI, related to documentation for background screening and/or in-service training and freedom from infectious diseases. It also proved the violation alleged in Count XIII, related to the failure to file an adverse incident report, and Counts XII results in the imposition of survey fees. Several of these counts, while proven, were also cleared by the Agency. The Agency did not prove the allegations in Count I, the vast majority of Count II, Counts IV, V, VI, VII, VIII, XIV, XV, XVII, XVIII, XIX, or XX. In short, the Agency proved six violations, all of which are documentation issues, as opposed to issues addressing care and treatment. While clearly there were problems in certain areas, the evidence did not demonstrate an overall pattern of deficient practice. Second AC The Second AC comprises six counts. Count I alleges that during a complaint survey conducted October 26, 2015, contrary to rule 58A-5.0185(7)(f), the facility failed to make every reasonable effort to ensure that prescriptions for residents, who receive assistance with self-administration of medication or medication administration, are filled or refilled in a timely manner. The rule does not contain a definition for what constitutes a timely manner. Count I This allegation concerns the medication prescribed for resident 2. The Second AC alleges that from Friday to Monday, October 14 through 17, 2017,8/ resident 2 did not receive prescribed pain medication. Allegations regarding the resident’s 1823 form, the nursing progress notes, and the resident’s MOR are also included, as well as an interview allegedly conducted with an unnamed unlicensed employee of the facility. While the Second AC contains allegations regarding the 1823 form, the nursing progress notes, and the resident’s MOR, the Agency did not seek to admit any of these documents into evidence. The facility, on the other hand, submitted documents indicating that they had contacted both the physician and the pharmacy beginning October 12, 2017, before the medication ran out, and continued to do so until the medication was refilled. No deficiency has been proven with respect to this count. Count II This count alleges that the facility failed to file an adverse incident report with respect to a day resident who left the facility and for whom the facility initiated its elopement policy. The Second AC alleges that this deficiency is reflected in a survey dated October 25, 2015, but references an adverse incident report dated August 5, 2016, some nine months later. R.G. was a resident who came to Cristal Palace during the day while his daughter worked. R.G. had been diagnosed with Alzheimer’s disease, but there was no testimony about the stage of his illness, and Shelia Mobley, the only person testifying who had personal knowledge regarding this resident, did not believe him to be an elopement risk. According to Ms. Mobley, the Alzheimer’s diagnosis alone does not mean that a resident is an elopement risk, and she did not believe this gentleman to be one. None of the surveyors were present when the incident occurred, and R.G.’s daughter did not testify. However, Ms. Mobley is a consultant working with Cristal Palace, and was at the facility when R.G.’s daughter came to pick him up, and he could not be located. The more persuasive testimony indicated that he was gone from the facility for somewhere between 15 to 45 minutes. Cristal Palace staff immediately began its elopement policy protocol to locate the resident, and law enforcement was called. Ms. Mobley remembered that he had a particular fondness for cars, and drove to the tire store located about a quarter mile away and within sight of the facility. The resident was there talking to the mechanics, and when he saw Ms. Mobley, he told her he was glad to see her and was ready to go home. She testified credibly that the resident was calm and apologetic when they returned to the facility, and was sorry to have caused such a commotion. The surveyor’s notes regarding the incident also reflected that R.G. was safe and unharmed. R.G. wore an ankle bracelet to assist in locating him should the need arise, but Cristal Palace did not resort to using the tracking system connected to the ankle bracelet because he was located so quickly. The facility’s elopement policy included having pictures of residents who are elopement risks available to staff, including the receptionist, to aid in locating them. After this incident, the facility altered the front doors to include a magnetic lock controlled at the front desk to better control exiting the facility. The back of the facility is fenced, so the only way to exit the premises is through the front. AHCA cited Cristal Palace for not timely submitting a 15-day adverse incident report. While the Agency chose not to submit a copy of either report into evidence, Cristal Palace submitted a copy of the one-day report filed with AHCA on August 5, 2016, and the 15-day report submitted on January 30, 2017. Mr. Dorra admitted at hearing that the 15-day report was not timely filed. He did not believe the incident to require an adverse incident report, but had one filed because the surveyor asked him to, and because the Agency kept citing the facility for failure to file the report. It is unclear who called law enforcement in this incident, but staff at Cristal Palace were aware that law enforcement had been called, thus placing the incident in the category where both one-day and 15-day reports are required. Not only are adverse incident reports required when law enforcement is called, but they are also required when there has been a possible elopement. While a 15-day report was filed, it was not done so on a timely basis. This incident is an unclassified deficiency. Count III Count III seeks to impose a survey fee with respect to Count I. Given that no deficiency was demonstrated with respect to Count I, there is no basis for imposing the survey fee requested in Count III. Count IV Count IV alleges background screening violations cited during an October 18, 2016, survey. The Second AC alleged that staff member B was hired on September 22, 2016, and the criminal history background screening of record indicated he was eligible March 12, 2012. The Second AC also referenced an undated employment application reflecting that his last employment at a licensed facility was over one year prior to his date of hire. Staff member B is identified in the matrix attached to the October 18, 2016, survey as Michael Taylor. The Agency did not introduce into evidence any employment application or documents showing when he was eligible to work in terms of his background screening. Ms. Pellot testified at hearing, after reviewing the survey document, that there was a background screening violation for “one staff that should have – that was subject to a background screening did not have a background screening done.” She did not specify who the staff member was or when he or she had been hired, and provided no identifying information regarding the staff member or the contents of his or her file. Assuming that the staff member to whom she referred is Mr. Taylor, Cristal Palace supplied documentation showing that Mr. Taylor had been screened in March 2012, and also had an attestation form signed on September 20, 2016. Any reliance on the undated employment application is misplaced, as it was not offered into evidence. Mr. Taylor was re-screened on November 3, 2016, and remains eligible. The Agency did not establish that Mr. Taylor had a break in service or that there was an impropriety regarding his documentation by clear and convincing evidence. Count V Count V of the Second AC alleges that during the October 18, 2016, survey, there were two staff members, B and D, who were not included on the clearinghouse for Cristal Palace within ten days of hire. The only testimony elicited at hearing regarding this allegation was the statement by Ms. Pellot that “review of the background screening roster revealed that the two staff what [sic] we identified were not listed,” and that she had verified that the unnamed staff members were employed for ten days. The matrix attached to the October 18, 2016, survey identifies staff members B and D as Michael Taylor and Latasha Spivey, respectively. Other than the matrix itself, no documentation related to these employees was offered into evidence by the Agency. The clearinghouse roster was not admitted into evidence and cannot be examined to determine if the staff members’ names were included. The Agency did not prove the allegations in Count V by clear and convincing evidence. Count VI Finally, Count VI seeks revocation of Cristal Palace’s license based on the violation of background screening requirements in Counts IV and V. Inasmuch as the Agency did not demonstrate a violation of either count as alleged, there is no basis for discipline under Count VI. Second Amended NOI On February 28, 2017, Cristal Palace filed its application for renewal of its license. If there was a survey conducted in connection to the renewal application, as specified in section 408.811(1)(b), no evidence regarding such a survey was introduced into evidence by the Agency. On June 5, 2017, the Agency served Cristal Palace with an NOI of its renewal application. The NOI alleged that the Agency had conducted numerous surveys and that Cristal Palace continuously failed to comply with the survey requirements toward correcting cited deficiencies. It further alleged that as of the time of the NOI, there remained twelve uncorrected deficiencies from the surveys conducted prior to the application for renewal of Cristal Palace’s license. Cristal Palace submitted a copy of the Agency’s provider inspection details, printed January 23, 2018. At that time, the Agency’s report indicated eight tags that did not have a correction date. As discussed below, not all of the eight tags remaining open support a finding of a deficiency. The NOI was amended twice, so that the current document is the Second Amended NOI. There is a great deal of overlap in allegations between the Second Amended NOI and the Administrative Complaints, and those alleged deficiencies that have been addressed previously will not be revisited. The Agency has noted those allegations that it believes were addressed in the First and Second ACs. However, because of the sparsity of the allegations regarding each tag, coupled with the vague generality of the testimony provided, it appears that there are other allegations that duplicate the charges in the First and Second ACs. Those allegations will be noted, but not addressed further. June 2, 2016 The Second Amended NOI cites a tag related to the June 2, 2016, survey, regarding the facility’s financial ability to operate. The Agency notes that this allegation was alleged in the First AC at Counts XIX and XX, and this allegation was not substantiated at hearing. June 8, 2016 The Second Amended NOI identifies ten class III violations and two unclassified violations generated from the June 8, 2016, complaint survey. The Agency tagged the facility for failing to follow a resident’s 1823 form, which included a physician’s order for medication administration. The resident is not further identified in the Second Amended NOI, nor is the nature of the medication administration failure. The only evidence presented was testimony that the 1823 for this resident stated that he needed his medications to be administered, but that the surveyor, Ms. Pellot, had observed an unlicensed staff member providing assistance instead of a licensed nurse administering the medications. The 1823 was not admitted into evidence. Moreover, while the survey report identifies the resident as female, Ms. Pellot referred to the resident as male. The evidence regarding this deficiency was not clear and convincing, and therefore not substantiated. The second class III identified addresses resident care/supervision and alleges that the facility failed to notify residents’ health care providers of unavailability of medications and that there was no evidence that the facility made efforts to ensure medications were timely filled or refilled. While there was testimony about medications given or not given to four residents, based on the surveyor’s review of documents, none of the documentation upon which the surveyor relied, such as MORs, 1823s, or other facility records, was admitted into evidence. Without more, this tag is not substantiated. The third class III deficiency identified alleges the failure to post an activities calendar. Similar to testimony regarding a prior survey, the surveyor did not indicate where she looked for a posting of the activities calendar, and did not say that she requested one and it was not provided to her. Ms. Mobley, who was a consultant regularly on the premises during this time, testified credibly that the facility has activities that are scheduled on a calendar, and there are many activities for the residents. This tag is likewise not substantiated. The Agency also cited the facility for failing to inform residents of the weekly showering schedule, identifying this deficiency as a class III. This tag was based on a conversation one of the surveyors had with two new residents, who allegedly reported that they had not been offered showers. Conversations with residents who did not testify at hearing are hearsay. Ms. Bulger acknowledged that there is no rule even requiring a shower schedule. The facility presented persuasive evidence that new residents are told about the shower schedule and are assured that showers are available whether on a schedule or not, but that some new residents take a while to settle into a routine. While the Agency asserted that these two residents required assistance with showering, it presented no evidence, such as the residents’ 1823s, to substantiate this allegation. Similarly, the surveyor testified that she received the shower schedule, and the two residents were not on it. Yet neither the shower schedule nor the residents’ identity was presented for examination to substantiate the claim. The fifth class III deficiency noted for the June 8, 2016, survey, is an administration tag related to medication. The Second Amended NOI alleged that the facility failed to provide medication administration to resident 4 by a licensed staff member, i.e., blood pressure readings to determine when medications were to be given. The survey report for June 8, 2016, indicates that resident 4 had a physician’s order for Clonidine to be taken twice a day as needed, when the systolic blood pressure was greater than or equal to 180 mmHg, and that the April and May MORs contained only one blood pressure reading. The Agency did not introduce the doctor’s order or the MORs into evidence. Ms. Pellot testified that she spoke to a med tech who advised that blood pressure readings were kept in a separate book. While Ms. Pellot stated that she reviewed the contents of the book, no excerpts related to the blood pressure readings for this resident were offered into evidence. Ms. Pellot did not testify that she saw an unlicensed person taking blood pressure readings. On the other hand, Coralie Prince, a nurse employed by Cristal Palace, testified that this resident was fixated on her blood pressure readings, which were generally good, and that her blood pressure readings were recorded. She also testified that CNAs and med techs did not take blood pressures when she was around, and she was not aware of a CNA ever making the decision that a resident needed medication based on blood pressure readings. She gave an example of an incident when she was running late to work and the resident was waiting for her at the door for a blood pressure reading. When Ms. Prince was not available to take blood pressure readings, perform injections, or other medication administration, she testified that a licensed practical nurse (LPN) was available for this function. Ms. Prince was on-call, and would come in when the LPN was not going to be there. She came in no later than 7:30 a.m., and stayed for a 12-hour shift. Ms. Prince also testified that the facility had an electronic system that kept records of readings. That record was not in evidence. The tag for medication administration has not been substantiated. The sixth class III deficiency for which Cristal Palace was tagged involved medication storage and disposal. Surveyor Lorienda Crawford testified that she walked into a resident’s room and saw three unknown pills on the bathroom vanity. She testified further that if a resident self-administers medications, the facility still has an obligation to make sure all medications were secured. The Agency did not offer the 1823s for these residents into evidence, which would have indicated whether they needed medication administration. Moreover, rule 58A-5.0185(6)(a) provides that residents may keep their medications, in their rooms or apartments, “which must be kept locked when residents are absent.” There are some exceptions to this provision in the rule, but the Agency did not prove any circumstances that would trigger those exceptions, and the testimony of Ms. Crawford was that she went into the room and the residents were present, thereby negating the need for the room to be locked. This deficiency has not been substantiated. The Agency issued a tag 77, citing a class III deficiency for failing “to ensure that resident’s records had documentation to confirm that resident’s healthcare provider and family were notified that resident went to ER and a Rehab Center, no documentation regarding residents’ hospital admissions.” The survey report identifies three residents that allegedly went to either rehabilitation facilities or to the emergency room, but for whom the Agency says the resident files do not include any notation that a family member or the attending physician was notified. Once again, none of the resident records referenced in the survey report were admitted into evidence. Cristal Palace keeps an Incident/Accident Report book where incidents occurring within the facility are noted. Each form includes a place to note whether family members or physicians are notified. Cristal Palace Exhibit 47 contains examples of these forms, and although it is hard to confirm if these are the same patients identified in the survey document, they appear to be. Some of these forms include a date in the narrative summary of what happened, and some do not. None have the space provided for a date completed. In each form provided, there is a notation that a family member was contacted and/or provided a message regarding the hospitalization or other incident. Without the opportunity to examine the records that are alleged to be deficient, this tag cannot be substantiated. The Agency issued a class III for tag 93 (food service/dietary standards). The Second Amended NOI alleges that the “facility failed to provide therapeutic diet, failed to date and plan menus one week in advance, and failed to maintain 6 months menus with substitution noted.” Surveyor Nitnirun Chaokasem testified that Cristal Palace had four-week menus posted all together, with no identification as to which week would be used when, and had no dates on the menus. She did not see six months’ worth of menus, and was told by newly-hired kitchen staff that the staff was unaware of the requirement to keep menus for six months. She also testified that one resident had orders to be served a 2,000-calorie ADA diet, and did not see a menu for that diet. However, she did not ask for the therapeutic diet. Ms. Chaokasem reviewed Cristal Palace’s Exhibit 13, which is five weeks of menus. Each week of menus is labeled week 1, week 2, etc., but she was not told that the numbers correspond to the week of the month. She did not recall seeing the week-5 menu while at the facility, did not review the dietitian certificate, and acknowledged that each menu included a certification from the nutritionist. The Agency did not provide the 1823 for a resident that indicated the need for a therapeutic diet. However, while the menus were numbered sequentially, they are not dated as required, and six months worth of menus was not provided. This deficiency was appropriately cited as a class III. It was, however, cleared by the Agency on January 25, 2017, five months prior to the issuance of the original NOI, and was, therefore, not still outstanding. The Agency cited tag 152 for two issues: 1) that a trash bag full of trash, as well as soiled clothing in a pile on the floor, were found in a resident’s room; and 2) that a resident room where bed bugs had been exterminated had a black and brown substance on the wall and ceiling. Ms. Crawford testified that when she entered the room where the loose medication was on the bathroom vanity, she also observed a 13-gallon trash bag in the room that had not been dumped or emptied, along with some soiled, urine (smelling) clothing in a pile on the floor. She asked the residents when they had laundry day, and they did not know. She testified that the room was not on the housekeeping schedule she received, and she did not receive a laundry schedule. No regulation requiring a laundry schedule or a housekeeping schedule was supplied, nor was the housekeeping schedule submitted into evidence. It is not known when the housekeeping schedule was prepared in comparison to the admission of these two residents, who were new to the facility. Moreover, while there was hearsay from the residents regarding how long the pile of clothing was on the floor, no competent evidence was presented to establish whether it was placed there days or minutes before the surveyor appeared. The facility’s witnesses testified that rooms were cleaned every day. This tag is not substantiated. With respect to the alleged bed bugs, Ms. Bulger read from the survey document that the facility “had pests and mattresses, furnishings in the hallway. And there was dark substances [sic] in the ceiling and there were insects that had – that were still alive.” On cross-examination, she acknowledged that there was no resident in the single room in question, because the facility had moved the resident and was in the process of treating the room. She also did not know if the county health department came out and cleared them. The Agency cleared the deficiency in January 2017. The more persuasive evidence is that the facility had already identified the problem and was taking appropriate steps to address it. In other words, it was actively seeking to provide and maintain a homelike and decent environment by treating the already-identified issue. No deficiency has been substantiated. The final class III tag identified for the June 8, 2016, survey, is the failure to update the admission/discharge log for the facility. Ms. Pellot noted that the admission/discharge log for the day she was there reflected a census of 58 residents, whereas the actual census the day of the survey was 39. The admissions/discharge log was not admitted into evidence.9/ The potential harm identified was that in the event of an emergency, without an accurate admission/discharge log, the facility would be unable to account for all of the residents in the event of an evacuation. However, there was no evidence that resort to the admission/discharge log would be part of any evacuation plan. Ms. Pellot also acknowledged that she did not know whether any planned outing for that day may have affected the census as compared to the admission/discharge log.10/ This deficiency was not substantiated. The first unclassified deficiency identified for the June 8, 2016, survey in the Second Amended NOI was previously addressed in Count XVII of the First AC. As noted in Finding of Fact 104, this deficiency was not substantiated. The final deficiency identified in the June 8, 2016, survey, is noted as being included in the First AC. The allegations in the Second Amended NOI are sparse, but it appears that this allegation is directed at the file for Ms. Bethelmy, addressed in Count XV of the First AC. As noted at Finding of Fact 98, this deficiency was also not substantiated. In sum, of the 12 violations identified with respect to the June 8, 2016, survey, the Agency has proven one violation, that being the failure to appropriately date menus and to provide six months of menus upon request. June 30, 2016 The Second Amended NOI alleged three violations with respect to the survey dated June 30, 2016: two identified as class III deficiencies, and one unclassified deficiency. The first asserted violation is tag 7, addressing admissions criteria, in which the Agency asserts that the facility admitted a resident requiring a 24-hour caregiver when the facility did not have a 24-hour caregiver available. The resident is not identified in the Second Amended NOI. The sole testimony regarding this issue is a statement by Ms. Bulger that “the facility admitted a resident whom, after the 1823 was completed, the healthcare provider noted that he – if he was going to be admitted into an assisted living facility he needed at [sic] 24-hour caregiver.” She testified that the facility does not have staff that could just watch this resident 24 hours, and that, based upon what the health care provider had on the resident health assessment form, the resident was not appropriate for admission. No 1823 for this resident was admitted into evidence. Without being able to examine the 1823, and without knowing whether the Ms. Bulger’s statement regarding staffing was a general conclusion or based on an examination of the facility’s actual staffing levels, this deficiency is not supported. There was evidence presented at hearing regarding provision of services by hospice. However, without more in the Second Amended NOI to identify the resident, there is no competent, substantial evidence to know whether the resident receiving hospice services is even the resident about whom the tag was written. Moreover, no tag related to hospice care was alleged. The second class III tag identified addresses a resident that the Agency alleged had been identified as an elopement risk and for whom the facility did not ensure that the resident maintained identification on his person. Although not entirely clear, it appears that this person is the same person identified in the prior tag. According to Ms. Bulger, the 1823 for this resident identified him as an elopement risk because he wanders. She observed him sitting in the activities room at the facility, and at that time, observed that he did not have identification on him. Ms. Bulger noted in the survey report that the resident had a call button on a lanyard around his neck, but could not recall that at hearing. She also did not specify how she knew he had no identification and acknowledged that she did not attach a copy of the 1823 to her survey. The Agency likewise did not introduce the 1823 into evidence. There is simply not enough evidence presented at hearing to identify this resident as an elopement risk. Nor is there any evidence about what information might be garnered from the on-call button he wore, or what efforts, if any, the Agency made to find that out. Without more, this deficiency is not substantiated. The final deficiency noted for June 30, 2016, involved the same unclassified allegation addressed in the First AC at Count XIII. As noted in Finding of Fact 90, this deficiency was substantiated, though Cristal Palace’s explanation in mitigation of the incident was reasonable. October 18, 2016 On October 18, 2016, the Agency conducted a monitoring visit for ECC services. At that time, it cited the facility for six class III violations and two unclassified violations, which are referenced in the Second Amended NOI. The Agency issued tag 78 for staffing standards, stating that the “facility failed to obtain verification of freedom from communicable disease for several staff.” The staff members at issue are not otherwise identified in the Second Amended NOI. In the survey document, the staff members at issue are identified as staff members C and D. These staff members are identified in the matrix attached to the survey document as Larine Horton and Latasha Spivey, respectively. At hearing, only one person is referenced as not having the appropriate documentation, and then not by name. In fact, Ms. Pellot testified that this staff member was the same person she had cited the facility for previously, and that the staff member she is referencing (although not identifying by name or otherwise) is the staff member previously cited whose TB certificate was for more than six months prior to her hire date. That person, however, is neither Larine Horton nor Latasha Spivey, but rather was Stephanie Flores. As noted at Finding of Fact 82, her original TB test was too early, but there was a second TB test dated April 7, 2016. Assuming this is the staff member the surveyor meant to identify, the April 7, 2016, TB test would be current for the survey conducted in October of that year. Without more clarity, both in the Second Amended NOI and in the testimony presented, this tag cannot be substantiated. The next tag cited in the Second Amended NOI is tag 79, for not having staff who had both first aid and CPR certifications during a work shift. Ms. Pellot testified that she cited the facility for not having a staff member with first aid and CPR training from 11 p.m. to 7 a.m. No date is specified in her testimony, or in the Second Amended NOI. The survey document for October 18, 2016, indicates that the shift in question was on October 9, 2016. Ms. Pellot testified that she did not know whether Mr. Durra, the administrator, was in the facility during this time, or whether he had certification in both first aid and CPR. She stated that if he was there and had both certifications, it would satisfy this requirement. Her answer was the same with respect to Larine Horton, an employee listed on the matrix attached to the survey document as having both certifications. Ms. Pellot testified that she cited the facility based on who was listed on the shift schedule, but does not remember the names on the schedule and does not remember if she made a copy of it. Mr. Durra testified that he was present during the shift in question, and the Plan of Correction submitted by the facility also noted that he was there that evening. This deficiency has not been substantiated. Tag 81 was cited for failing “to provide or make arrangements for staff to receive In-Service training in Resident Rights in an ALF, Recognizing Abuse, Neglect, and Exploitation, etc.” The Second Amended NOI does not identify which staff and which specific courses were missing for those staff members. Similarly, the testimony at hearing was that there was “no evidence that one staff had received the training on recognizing abuse, neglect and exploitation; how to report adverse incidents –adverse incidents; facility emergency procedures; or elopement risk policies and procedures within 30 days of employment.” The matrix attached to the survey document for October 18, 2016, lists staff member D as the person needing the training, and identifies her as Latasha Spivey. Assuming that is the person about whom Ms. Pellot was testifying, her employment records offered by Cristal Palace show a license transcript from the Department of Health file showing that she had received training in abuse neglect and exploitations on January 27, 2015, and May 8, 2015, as part of her continuing education requirements as an LPN. In addition, there are certificates of other training taken in October 2016, shortly after the date of the survey. Ms. Pellot testified that she did not review any of the documents provided within 30 days after the survey. Clearly, those documents would not have been available at the time of the survey if Ms. Spivey had not taken the courses by that date, which was more than 30 days after she was hired. This was appropriately cited as a class III. During this survey, Ms. Pellot also cited the facility for failing to ensure that staff had in-service training in the facility’s DNRO procedures. Once again, no specific staff member is named in the Second Amended NOI. However, the survey document identifies Ms. Spivey as not having this training within 30 days of hire, as her certificate indicates she took the training October 27, 2016. Although clearly corrected within 30 days and not still outstanding, this was correctly cited as a class III deficiency. The Agency cited Cristal Palace for two alleged deficiencies regarding ECC plans: one for not having an ECC service plan for a resident identified as receiving ECC services, and one for not having records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC. An ECC service plan is a plan developed for a resident with a facility in conjunction with the family, on how the facility is going to meet the needs of a resident who exceeds traditional ALF criteria and remains there pursuant to a specialty ECC license. An ECC plan addresses the range of services the facility is going to provide. A nursing care plan, on the other hand, is a plan that addresses a specific disease process, as opposed to care and services. Ms. Pellot testified that Cristal Palace had a nursing plan, but not a service plan, for a gentlemen that is identified only as a resident using a wheelchair and needing urinary catheter care.11/ Ms. Mobley spoke with the surveyors about the ECC service plan. She testified that she provided to them an ECC service plan, and was told that it was incorrect because it was more like a nursing home plan. When Ms. Mobley inquired where the governing statutes gave guidance regarding how an ECC plan should look, she testified that she was told what she presented did not meet the (unidentified) standard. Ms. Mobley stated that she asked the surveyor whether it would make sense to go above the standards to make sure a resident is taken care of, in that nursing home residents usually require more care, and was told their plan was “too nursey.” Ms. Mobley also faxed the plan to an educational trainer for the Florida Assisted Living Association (FALA), who previously headed the ALF unit at the Agency, and neither could understand why the plan was not acceptable.12/ It would be appropriate to review the plan prepared by the facility and rejected by the Agency surveyor, but the plan that Ms. Pellot described as a nursing plan as opposed to an ECC plan was not offered into evidence. Without seeing what was prepared and rejected, there is not persuasive evidence that the plan was not satisfactory. Moreover, the Agency’s records indicate that this tag was cleared in January 2017. This violation is not substantiated. The final class III, cited in the October 18, 2016, survey, is for failing to have records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC. Ms. Pellot testified that a patient was admitted in August and when they were there in October, no nursing assessment was in the file. She also testified that Latasha Spivey was contracted to do assessments, but that Ms. Spivey indicated to her that she thought the assessments were to be quarterly. No records regarding this resident were offered into evidence to establish the resident’s identity, date of admission, or level of care required. The correction plan submitted by Cristal Palace following the October 18, 2016, survey, indicated that “preliminary service plans are implemented by the R.N. and will conduct monthly assessments.” It does not indicate one way or another whether the facility was previously conducting the assessments on a different interval. This deficiency was cleared on January 25, 2017. Without some documentation to identify the resident in some fashion, his or her admission date, and his or her need for the nursing assessments at all, this deficiency has not been substantiated. The final two tags cited in the Second Amended NOI for unclassified deficiencies that were included previously in the Second AC. The first one, for failure to include two employees on the clearinghouse roster, was addressed in Count V of the Second AC, and as reflected in Findings of Fact 135 through 138, this deficiency was not substantiated. The second unclassified deficiency, as alleged in Count VI of the Second Amended NOI and addressed at Finding of Fact 139, was also not substantiated. October 26, 2016 The Second Amended NOI alleges one class II violation, four class III violations, and one unclassified violation stemming from the survey conducted October 26, 2016. The class II violation, addressing the alleged failure to make reasonable efforts to refill pain medication for a resident, was addressed at Findings of Fact 119 and 120 with respect to Count I of the Second AC, and was not substantiated. The first class III violation tagged is tag 25, related to the day resident referenced in Count II of the Second AC. The allegation listed in the Second Amended NOI is that the “facility failed to prevent elopement of a day-care resident found at a Tire Kingdom store.” The notes in the survey, however, state the violation is for failing to know the general whereabouts of the resident. The Agency could not identify at hearing how long R.G. was away from the facility because it occurred when no surveyor was present, and it presented no evidence from anyone with personal knowledge about how long R.G. was gone from the facility. There is no definition of what constitutes “general awareness,” but it appears from the Agency’s view, staff should have been aware of R.G.’s whereabouts every minute of the day. Here, the most persuasive testimony was that R.G. was gone a very short time, and once the facility realized he was not where he had been last observed, based on her knowledge of R.G.’s interests, Ms. Mobley drove to the tire store and found him talking with the employees there. The adverse incident reports filed by the facility indicate that he walked out the front door behind another guest. If anything, the evidence showed that the facility’s consultant knew R.G. well enough to know where he would most likely go if he left the facility, and she was correct in her assessment. This tag is not substantiated. The next tag, listed as tag 32, is identified in the Second Amended NOI as a tag related to elopement standards, for failing to “ensure that a day-care resident’s photo was in the facility’s elopement book.” Ms. Andrews testified that several people identified R.G. to her as an elopement risk, but did not identify those people. Ms. Mobley, on the other hand, did not believe that he was in fact an elopement risk. While Ms. Andrews was informed that Ms. Mobley was the person who found R.G. at the tire store, she did not speak to Ms. Mobley about the incident. Although she testified that the facility “knew” he was an elopement risk, she could not recall if an elopement risk assessment was contained in his file, and no assessment identifying him as an elopement risk was offered into evidence. Most importantly, the incident at issue occurred in early August, and the facility was cited for it in late October 2016. Ms. Andrews did not know when R.G. stopped coming to the facility as a day resident. This issue is important because the tag here is for the failure of the facility to have his picture with pictures of other residents. Ms. Andrews testified that, while she could not remember where they were stored, she recalled seeing pictures of other residents but not R.G. Without establishing that R.G. was still attending the facility at the time she observed the pictures, Cristal Palace cannot be cited for failing to have his picture ID in the medical record system. This finding has not been substantiated. The next tag identified for October 26, 2016, tag 55 related to medication storage and disposal, alleges that a medication cart was left unlocked in the hallway. Ms. Pellot testified that while she was at the facility on October 26, 2016, she was on the second floor near the elevator and saw a medication cart that was unattended. The cart was unlocked, and she stayed at the cart for approximately five minutes before a staff member came back. Ms. Pellot testified that the staff member indicated that she was assisting a resident. Ms. Pellot acknowledged that there was no one present in the hall while she waited for staff to reappear, but whether the hall was empty or full does not really matter. It is a clear violation of rule 58A-5.0185(6)(b), which requires centrally stored medications to be kept in a locked cabinet, locked cart, or other locked storage area at all times. This is a class III violation because of the potential risk of residents taking medications not prescribed for them, and it is a substantiated violation. Agency records indicate that this violation was cleared by the Agency on January 27, 2017. The final class III violation cited for the October 26, 2016, survey, alleged that the facility failed to make sure that the air conditioning unit in a resident’s room was in good working order. Ms. Bulger is the surveyor involved with this tag. She testified that she went in the resident’s room, and it was warm; she was sweating when she left the room. When she checked the thermostat for the room, it read 84 degrees. The resident told Ms. Bulger that she had informed the administrator and that the resident was told they were working on it. Ms. Bulger also acknowledged that the facility offered to move the resident while the air conditioning was being fixed, and the resident did not want to move. She did not know when they offered to move the resident or when they called the repair service, stating, “they did not start working on it, that I could see, because I was asking for proof that they were trying to get it fixed and it was never provided until the day that it was brought up to them.”13/ The survey document contains hearsay statements from the resident’s relative and the maintenance person indicating an awareness of the problem and underscoring the offer to move the resident until the air conditioner was fixed. Mr. Dorra also testified that he went to Home Depot to get a portable unit for use until the existing unit was repaired. That unit was not in the room when the surveyor was there. The tag was cleared on January 25, 2017. The plan of correction submitted by the facility also reported that an electrician had come to the facility to repair the air conditioning, and it was functioning appropriately at that time. The facility also articulated a plan wherein any reported maintenance problem would be resolved within 48 hours of being reported. In this instance, there is no clear evidence of how long the air conditioner for this resident’s room was not functioning, or how long it was before the facility took action to have it repaired. All that has been established is that the day of the survey, the air conditioning was not working; that the facility had already offered to move the resident until it was fixed; that the resident refused to move; that the facility called a repairman at some unidentified point to get the unit fixed; that it bought a portable unit in the interim; and that the unit was fixed. Without more, this deficiency is unsubstantiated. The Agency also cited one unclassified deficiency with respect to this survey, regarding the facility’s failure to file a 15-day incident report related to the elopement of R.G. This tag has been addressed previously at Count III of the Second Amended NOI, and as stated in Findings of Fact 127 through 129, this deficiency was substantiated. January 25, 2017 The final series of deficiencies alleged in the Second Amended NOI are contained in survey reports issued January 25, 2017. The first tag is for the proof of financial ability to operate. The Second Amended NOI lists this as an uncorrected deficiency. However, as noted earlier with respect to Counts XIX and XX of the First AC and with respect to the first item listed for the Second Amended NOI, this deficiency was not substantiated with respect to the prior tag. No further information was introduced with respect to this tag to further substantiate any financial problems: while the survey report summarizes some balances apparently taken from various bank accounts, none of the documents from which this information may have come were admitted into evidence. No expert testimony or fiscal analysis was presented. This deficiency remains unsubstantiated. The next tag cited is identified as a class III violation related to supervision related to resident care. The Agency alleged as a factual basis that the “medication technician did not properly measure topical ointment; no documentation evidence that resident’s blood sugar was tested as ordered; no documentation evidence that facility notified healthcare provider when resident’s blood sugar was not tested.” With respect to the measurement of topical ointment, the only evidence provided on this issue was provided by a witness for Cristal Palace. The Agency did not introduce any testimony regarding this incident and did not mention this particular allegation in its Proposed Recommended Order. It is not substantiated. The next allegation deals with a patient for whom the resident records did not document that the facility tested her blood sugar. Agency Exhibit 15 identifies this resident as resident 3. Ms. Pellot testified that for one resident, the MOR said to test blood sugars three times daily, and the key at the bottom of the form said the resident was out of the facility. For several entries, a “3” was entered in the MOR, meaning that the medication was not given. Ms. Pellot did not testify, with respect to this particular resident, about any failure to notify the resident’s physician that the blood sugar readings were not performed. Testing blood sugar levels is not the same as giving medication, but is governed by the same standards. However, neither the 1823 nor the MORs for this patient were offered by the Agency as exhibits at hearing. There is no method to analyze documents not included in the record. No deficiency is substantiated with respect to this resident. The Agency issued a tag 160 for the failure to maintain an updated census for its residents. Ms. Andrews testified that there was a resident that had not been at the facility for several months, but was still listed on the admission/discharge log as a current resident. The summary of findings in the survey document states that the person was listed as discharged, but that no discharge date was identified. It cannot be determined whether the statement by Ms. Andrews or the narrative in the survey document is the most accurate, because the resident is never identified in any manner where even initials could be compared against the admission/discharge log, and the Agency did not offer the admission/discharge log into evidence. This tag, classified by the Agency as an uncorrected class III violation, was not substantiated. The Agency also cited the facility for a new class III violation, based upon the facility’s failure to maintain updated MORs for residents. The Second Amended NOI does not specify how many residents and/or their identities. The only testimony provided at hearing with respect to this tag is by Ms. Pellot, who testified simply that when there are blank slots on the MOR and no notation in the back, the assumption is that the medication is not given. She stated that on three out of eight records that she reviewed, there were multiple blanks with no explanations. She provided no further details. The survey document provided additional detail that apparently is taken from the residents’ 1823s and MORs. None of the 1823s, which would establish that a resident needed assistance with medications, and what medications were to be administered, were admitted into evidence. Likewise, the MORs that the Agency alleges are deficient were not offered into evidence by the Agency. Without this evidence, the alleged deficiency is not substantiated. The Agency also re-alleges the tag for failing to submit an adverse incident report “when law enforcement was called to investigate alleged stolen narcotics.” This deficiency is related to the incident discussed in Count XIII in the First AC, and addressed in Findings of Fact 87 through 90, and again at Finding of Fact 190. It is not clear whether the adverse incident reports for this incident were ever filed. The Agency appropriately found an uncorrected, unclassified violation for this tag. One of the purposes of the January 25, 2017, surveys (there are five separate survey documents) was to revisit the facility with respect to its monitoring of the ECC license. As part of that survey, the facility was cited for having a staff member whose CPR certification was from a provider that was not approved. The testimony did not identify the staff member or the training provider that was not approved, and a copy of the unapproved certification was not admitted. The survey document identified the staff member as staff member B. However, none of the matrixes, attached to any of the five surveys dated January 25, 2017, identify staff member B. Moreover, there is nothing to identify the education provider, much less to demonstrate that the provider is not sponsored by an entity named in the Agency’s rule.14/ This deficiency has not been substantiated. The facility was also cited for tag 81, as an uncorrected class III violation for staff in-service training. The Second Amended NOI alleges that “the facility did not have any documented evidence indicating staff received In-Service training regarding Recognizing Abuse, Neglect and Exploitation and reporting Adverse Incidents in ALFs.” The only testimony presented for this violation was that “staff who had been hired for more than 30 days did not have the training – the mandated training – in-service training.” Once again, no staff member is identified in the testimony. No citation is made in the Agency’s Proposed Recommended Order to any exhibit to corroborate or further explain this testimony. Agency Exhibit 16 addresses this tag and identifies the staff member as staff member D, but that staff member is not identified in the matrix attached to any of the January 25, 2017, survey documents. This deficiency has not been substantiated. The Agency also cited the facility for tag Z815. The Second Amended NOI alleges that the facility’s roster on the clearinghouse site did not include one of the facility’s staff members. The staff member is not identified in the Second Amended NOI or in the testimony at hearing. A copy of the clearinghouse roster was not offered into evidence. This deficiency, listed as an unclassified violation, was not substantiated. Finally, the Agency issued tag Z821 as an unclassified violation in terms of reporting requirements. The survey document indicates that this citation is related to the August 5, 2016, incident regarding the day resident, R.G. The Agency offered no testimony regarding this deficiency in connection with the January 25, 2017, survey, and simply cited to the survey document listed as Agency Exhibit 17. As noted in Finding of Fact 127, the 15-day adverse incident report for this event was filed January 30, 2017, a few days after this follow-up visit. The deficiency has since been cleared, but at the time of the survey, was appropriately cited as an uncorrected, unclassified violation. In sum, of those violations listed in the Second Amended NOI that are not duplicates of the two Administrative Complaints, the Agency proved one class III violation for the June 8, 2016, survey that was cleared prior to the issuance of the initial NOI; two class III deficiencies related to training documentation from the October 18, 2016, survey, at least one of which was cleared prior to the initial NOI; one class III violation and one unclassified violation from the October 26, 2016, survey, both of which were cleared prior to the initial NOI; and two unclassified violations addressed to reporting requirements, at least one of which was cleared prior to the initial NOI. General Findings As noted early on, Cristal Palace is a relatively new facility. Its growing pains have been difficult and due in large part, to disorganized, poorly prepared administrative staff. While it is suspected that what was presented at hearing in terms of staff members and staff turnover is just the proverbial tip of the iceberg, the evidence shows that at least one assistant administrator with whom the Agency interacted during surveys, Mariah Wiggham, was cited for poor performance, and left employment with the facility on July 6, 2016. Documentation issues, however, did not end with the termination of Ms. Wiggham’s employment. Mr. Dorra has recognized the need for better administration, and early on in the licensure process hired Ms. Mobley to assist him with credentialing for insurance and other matters. Over time she was asked to help with other issues, and was given free access to check on issues at the facility. Ms. Mobley has significant experience in the ALF field, and has worked in the field for about ten years. She has her own ALF and is currently a regional director for FALA. Ms. Mobley’s testimony was straightforward, consistent, and credible. Ms. Mobley is not the answer to Cristal Palace’s problems. She left the facility in approximately May 2017, after she advised Mr. Dorra that he should hire a management company experienced in ALFs, because the managers he had hired were subpar. While she did not endorse those managers, she believed that the management problems did not trickle down to the residents, and that the care given to the residents was excellent. Ms. Mobley testified to Mr. Dorra’s efforts to put in safeguards to help in terms of compliance. A new software program was implemented to maintain electronic resident records in 2016. The electronic program alerts the administrator when something is not given to a resident on time, and is also tied to the pharmacy as well, providing notice two weeks before a medication runs out. According to Ms. Mobley, Mr. Dorra also purchased a program to provide all of the necessary in-service training. Correction plans also referenced the purchase of “Sushoo software” to assistant with organizing the timeliness of documentation related to personnel records and training issues. While it appears that Mr. Dorra earnestly desires to provide a safe and pleasant residence for seniors, he has kept his involvement fairly limited to the financial end of the operation, leaving, perhaps too much, the direct care aspect of running Cristal Palace to his director of nursing, nurses, CNAs, and med techs. If this case shows anything, it is that a stronger management well-versed in running an ALF and familiar with all of the regulations related to doing so, is required. By the same token, the Agency’s performance seems to be somewhat haphazard as well. While section 408.811 speaks in terms of correcting deficiencies within 30 calendar days, the follow-up visits in this case did not ever occur within a 30-day period. For example, the follow-up visits for the surveys conducted August 26, 2015, occurred May 25, 2016, and June 8, 2016. The follow-up visit for the survey conducted October 21, 2015, took place March 1, 2016, and the follow-up from the December 17, 2015, survey also occurred May 25, 2016. Agency personnel were asked frequently whether they had reviewed the documentation sent to the Agency in plans of correction or sent in immediately following a survey, and each time the testimony was that surveyors did not review that information and instead relied only on what was presented during the survey inspection. Who actually reviews the information remains a mystery, because the Agency never identified what, if anything, is done in response to a facility’s attempts to come into compliance by submitting documentation that should have been available to the surveyors at the time of the survey. There was testimony that when the surveyors were present, there were usually three or four of them, and each one would be asking for different documentation. Ms. Mobley testified that on one occasion, she went to the room where the surveyors were working to retrieve a file and they had papers all over the place, and things were “just in shambles.” Whether or not files were in the disarray that she described, the testimony casts some doubt as to whether certain documents were truly not there or were instead misplaced. In at least one instance, the deadline provided by the Agency bordered on unreasonable. For example, there was an instance where Mr. Dorra had advised that there was an issue with a bank account because of a fraudulent check that someone had written on the account. The surveyor, Linda Gulian-Andrews, appropriately requested documentation and, when the administrator was unable to provide the documentation that day at 4:45 p.m., she gave him a “grace period” until 9:00 a.m. the next morning. Given that the documentation Ms. Gulian-Andrews was requesting required communication with the bank, this “grace period” was illusory at best.15/ Ms. Gulian-Andrews acknowledged that there were at least three surveyors there the day she made the request for documentation, that staff for the facility had to bring documents to the surveyors, and that she did not know whether the administrator may have been addressing requests from other surveyors at the same time she was requesting documents. All this is to say that this is a case where the Agency was demanding strict compliance yet did little to prove its case at hearing, and the facility was suffering from a lack of strong management to provide the documentation required. While the Agency proved some of the claims it presented, the majority of violations proven represented documentation issues and reflect an overall failure to get a handle on the paperwork necessary to run a successful facility in a highly regulated area. Ms. Mobley testified that, based on her experience in the industry, and after reviewing both the services at Cristal Palace and the services provided at some of the other facilities in the area, Cristal Palace should stay open. Her opinion has been taken into account with respect to the ultimate recommendation in this case. With respect to the renewal application, no evidence was presented identifying deficiencies in the renewal application, and the Second Amended NOI does not indicate that the Agency’s intended action is based on any deficiency in the application. Nor, as noted above, is there any evidence that the Agency conducted a biennial survey in response to the application to renew. All of the issues identified in the Second Amended NOI predate the renewal application. Although the Agency is authorized to issue a provisional license while the denial of the application is pending, it has refused to do so. This refusal has further complicated Cristal Palace’s ability to provide services to its residents or to attract new residents, because it cannot display a current license of any kind.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order with respect to the Administrative Complaints docketed as Case Nos. 17-2149 and 17-2164 imposing $3,000 in administrative fines and assessing a survey fee in the amount of $500. It is further recommended with respect to Case No. 17-3849, that the Second Amended NOI be vacated and that the Agency complete the application review process by conducting a renewal inspection as required by sections 408.806 and 408.811, before taking agency action with respect to Cristal Palace’s renewal application. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of June, 2018.
The Issue The issues for determination are whether Respondent committed the offenses set forth in the Administrative Complaints and, if so, what penalty should be imposed; and whether Respondent should be issued a Standard or Conditional license rating.
Findings Of Fact At all times material hereto, Respondent was a licensed nursing home located in Pompano Beach, Florida. Petitioner is charged with, among other things, periodically evaluating nursing home facilities and making a determination as to the degree of compliance with applicable federal regulations, and state statutes and rules. The evaluation or survey of a facility includes a resident review or survey. A resident survey consists of record review, resident observation, and interviews with family and facility staff. Review of a clinical record includes the review of a document referred to as minimum data set or MDS Assessment. The MDS Assessment is a record, in summary fashion, of information or data that a facility gathers to prepare a care plan for a resident. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "tags." Petitioner's surveyors document the tags on a form prepared by Petitioner. Petitioner's surveyors use the "State Operations' Manual" (SOM) as guidance in determining whether a facility has violated the federal regulation 42 CFR Chapter 483. The October 1998 Survey On October 8-9, 1998, Petitioner conducted an appraisal survey of Respondent, which is not a full survey. In an appraisal survey, Petitioner's focus is on quality of care issues, making sure that the quality of care standards are met. Petitioner used nursing home survey protocols prescribed by the federal government. Petitioner's surveyor performed a resident review of Resident No. 5. Tag F309 Tag F309 incorporates the requirement of federal regulation 42 CFR Subsection 483.25, which provides that "each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive assessment and plan of care." The SOM provided, regarding 42 CFR Section 483.25, that a facility must ensure that its residents obtain optimal improvement or does not deteriorate. Therefore, the surveyor must first determine whether a resident has declined or optimally improved, and if the resident has suffered a decline or lack of improvement, determine whether the decline or lack of improvement was avoidable or unavoidable. A decline or failure to reach the highest practicable well-being is unavoidable only if: (1) the facility has an accurate and complete assessment; the facility has a care plan which is consistently implemented and based on the assessment; and (3) the facility has an evaluation of the results of the interventions and revising the interventions when necessary. Resident No. 5 was admitted to Respondent on July 9, 1998. The diagnosis for Resident No. 5 included dementia, but not severe because he could understand and follow directives, aggressive behavior, and agitated depression. He used a wheelchair and could ambulate with assistance. Respondent was required within 14 days, by July 23, 1998, to complete a MDS Assessment of Resident No. 5. Respondent assessed Resident No. 5 as being at risk for falls. Respondent was required within 21 days, by July 30, 1998, to develop a comprehensive care plan to address Resident No. 5's risk for falls. On July 29, 1998, Respondent completed and implemented the comprehensive care plan, containing interventions which included encouraging Resident No. 5 to use his call light; counseling him about his risk for falls and the need to request assistance in transfers; assisting him with transfers; instructing him about proper transfer techniques; using a night light; monitoring him for fatigue; and providing proper positioning while he was in bed or in a chair. Petitioner's surveyor reviewed, among other things, the nurses' notes and the care plan for Resident No. 5. The surveyor determined that Resident No. 5 had fallen seven times since his admission: July 18, July 23, August 7, August 14, August 17, September 26, and October 5, 1998. Two of Resident No. 5's falls occurred during the period for his MDS Assessment: July 18 and 23, 1998. Resident No. 5 suffered a skin tear to his elbow from the fall on August 14, 1998. On August 11, 1998, after his third fall on August 7, 1998, a wheelchair alarm was initiated to reduce the risk of falls. After Resident No. 5's fall on August 17, 1998, Respondent obtained an order for a lap tray. On September 28, 1998, after his sixth fall on September 26, 1998, a physical therapy screen was performed and a lap buddy was to be used in conjunction with the wheelchair alarm to reduce the risk of falls. The wheelchair alarm was to be used when the lap buddy was not in use. During the October survey, which was only three to four days after Resident No. 5's most recent fall, Petitioner's surveyor observed on two occasions that Resident No. 5 was without either a wheelchair alarm or a lap buddy. Before using the lap buddy, Resident No. 5 used a lap tray. He did not want to give-up the lap tray. Even when he was informed that the lap tray was restrictive, Resident No. 5 wanted to continue using the lap tray. A wheelchair alarm is a device, which attaches to a resident's wheelchair and is connected to the resident by a string. When the resident stands or otherwise moves from the wheelchair, the alarm sounds. The alarm's primary function is to alert the staff, not to ensure that falls will not occur, but the alarm's function is also an inhibitor and assists the staff to prevent the resident from causing himself or herself to fall. The wheelchair alarm is used only when there is a clearly demonstrated need. A lap buddy is much more restrictive than the wheelchair alarm. The lap buddy is a pillow-like device that rests in the resident's lap and discourages the resident from getting up, but the lap buddy can be removed by the resident. A more restrictive device than the lap buddy is the lap tray. The lap tray is a thin plywood board that is placed across the arms of the wheelchair and is secured to the wheelchair. The resident is capable of sliding underneath the lap tray and getting out of the wheelchair. In addition to the skin tear that Resident No. 5 suffered in his third fall on August 14, 1998, he experienced a decline in mobility requiring two people for assistance in walking instead of one person as he had before the many falls. Even though Resident No. 5 had a decline in his mental status as he had to begin taking a medication again that he stopped taking, the evidence does not demonstrate that the falls caused the decline in his mental status. Respondent failed to develop a care plan expeditiously and timely in order to address Resident No. 5's risk for falling. No evidence was presented to demonstrate that Resident No. 5 was resistant to using the interventions. Respondent had no documentation showing that the wheelchair alarm was sounding or in place at the time of Resident No. 5's fifth fall on August 17, 1998. Respondent had no documentation showing that the wheelchair alarm was in consistent use. Such documentation would have indicated that the care plan was being implemented. Respondent had no documentation showing that Resident No. 5 removed either the lap tray or lap buddy. When he fell on October 5, 1998, his seventh fall, the intervention for Resident No. 5 was the lap tray. The documentation showed that the lap tray had to be re-secured. An inference is drawn and a finding of fact is made that the lap tray was not in place when Resident No. 5 fell and that, therefore, the intervention was not consistently used. The evidence demonstrates that Respondent evaluated the results of the interventions which were used with Resident No. 5 and that Respondent revised the interventions as necessary. However, the evidence also demonstrates that the interventions were not consistently implemented. The evidence, in totality, demonstrates that Resident No. 5's decline was avoidable. Petitioner cited Respondent for committing a violation of Tag F309 and classified the violation as a Class II deficiency. Further, Petitioner assigned a federal scope and severity rating of "G" to the Tag F309 deficiency. Corrective Action After the October survey, Respondent was required to submit a plan of correction regarding Tag F309. Respondent submitted the plan of correction, indicating corrective action by October 10, 1998. The deficiency was corrected on October 10, 1998. Penalty Based upon the Class II deficiency of Tag F309, Petitioner imposed a fine of $5,000 upon Respondent. The April 1999 Survey On April 19-21, 1999, Petitioner conducted an annual survey of Respondent. An annual survey is performed at least once every 15 months. Again, the SOM was used by Petitioner's surveyors. Decisions, regarding violations, are made by the survey team. One surveyor is responsible for the resident review of a particular resident. Resident No. 3 Petitioner's resident surveyor reviewed documents and information, regarding Resident No. 3, including hospice care plan and social service notes; nurses' notes; physician orders; nurses' treatment notes; medication records; physician progress notes; comprehensive care plan, monthly summary comments; dietician's assessment; nutritional assessment; and the SOM for the pertinent tags. Petitioner's resident surveyor also made personal observations, interviewed staff, and had a consultation with a registered dietician, who was Petitioner's consultant. The survey team leader conducted the family interview. On December 10, 1998, Resident No. 3 was admitted to Respondent's facility from an acute care hospice facility. She was terminally ill and doctors were of the opinion that her clinical conditions would cause her death within six months. As a result, Resident No. 3 remained on hospice care at Respondent's facility. Resident No. 3 suffered from end-stage cardiovascular disease and congestive heart failure. She was incontinent with an indwelling Foley catheter and had contractures of the legs and Parkinson's disease. As a result of a stroke, Resident No. 3 was without speech. She was being fed through a PEG tube, which was inserted into her abdomen. Medication and hydration was also provided to her through the PEG tube. Resident No. 3 had several decubiti (pressure sores) at various stages of severity, including one at Stage IV and two at Stage III. She was receiving a continuous dose of morphine for pain caused by her compromising conditions. Resident No. 3 required total and complete assistance with all her activities of daily living (ADLs). She was completely dependent. The family of Resident No. 3 made the health care decisions for her, in particular, her son. Regarding the pressure sores, a Stage IV pressure sore had gone completely through the skin and muscle down to the bone, with nerve endings exposed. The pressure sore was open, raw, and very painful. Often the pain of such a pressure sore is described as being like very severe sun burns or almost like a bone racking kind of pain. In treating pressure sores, nutrition is one of the key components and one of the most important aspects of healing them. Development of pressure sores is related to malnutrition. During Resident No. 3's stay at the acute care hospice facility, before being admitted to Respondent's facility, Resident No. 3 experienced fluid build-up in her lungs, which was related to her end-stage cardiovascular disease and congestive heart failure. The hospice facility effectively eliminated the fluid build-up by reducing the amount of fluid intake to one can per day, which provided Resident No. 3 with 240 calories per day. For most healthy adults, 240 calories per day is insufficient to maintain body weight or promote healing of wounds or diseases. Resident No. 3's overall condition stabilized on the 240 calories per day. Upon admission to Respondent on December 10, 1998, a nutritional assessment of Resident No. 3's nutrition needs was performed by Respondent's dietician. A determination was made that, in order to meet her nutritional needs and promote weight gain and healing of her pressure sores, Resident No. 3 required 1,424 calories per day and between 37 and 56 grams of protein per day, in addition to multivitamins, vitamin C, zinc, and iron. In January 1999, Respondent's dietician reassessed Resident No. 3 for her nutritional needs. The dietician determined that no change existed in the nutritional needs for Resident No. 3, and recommended an additional, but slight, increase in the feeding amount. Around mid-January 1999, after the nutritional assessment, Resident No. 3 went into crisis care. While in crisis care, Resident No. 3's family expressed concern that she was receiving too much fluid through her feeding. Resident No. 3's physician ordered a reduction in her tube feeding to 720 calories (720 cc) per day, from six cans to three cans of formula per day. On January 25, 1999, Resident No. 3's family again expressed concern that she was receiving too much fluid through her tube feeding. The next day, Respondent's dietician and the hospice nurse met to discuss Resident No. 3's situation regarding the tube feeding. The hospice nurse informed Respondent's dietician that, during Resident No. 3's acute care at the hospice center, Resident No. 3 had experienced increased congestion and her tube feeding had been reduced to one can of formula per day and that, presently, Resident No. 3 was again experiencing increased congestion. Based upon Resident No. 3's prior experience at the hospice center with increased congestion and reduction in the amount of formula, upon the family's concern that three cans of formula per day was too much, and upon the dietician's opinion that Resident No. 3's comfort would be promoted by reducing the amount of the formula, the dietician decided to recommend reducing Resident No. 3's tube feeding. On January 26, 1999, the dietician recommended reducing the formula from three cans of formula per day to one can per day, from 720 calories (720 cc) to 240 calories (240 cc). No order was given that day by Resident No. 3's physician to reduce the tube feeding from 720 calories. The physician for Resident No. 3 was willing to reduce the formula or even discontinue it if the family of Resident No. 3 agreed. The family of Resident No. 3 were not willing to discontinue the tube feeding. Resident No. 3's physician did not order a reduction of the formula. On January 28, 1999, the physician diagnosed Resident No. 3 with pneumonia and recommended that the pneumonia be allowed to overcome her because of her terminal illness. Resident No. 3 improved and was taken off crisis care on February 3, 1999. Shortly thereafter, she began experiencing audible congestion. On February 12, 1999, Resident No. 3 was suffering from congestion, respiratory distress, and edema in her arms and thighs. On February 16, 1999, 13 days after Resident No. 3 was taken off crisis care, her physician ordered a reduction of the tube feeding to one can per day. Resident No. 3's respiratory problems became non-existent and she was removed from crisis care. Resident No. 3 remained on one can of formula, 240 calories, per day for a little over two months, from February 16, 1999, until the survey in April 1999. During that period of time, either the physician or his assistant reviewed Resident No. 3's condition and did not change her feeding order of one can per day. On February 26, 1999, Resident No. 3 was no longer congested. Her reduced feeding was not re-evaluated by Respondent to determine its necessity until the April survey. At the initial tour of Respondent by Petitioner survey team, the team member who was responsible for resident review of Resident No. 3 and who was a registered nurse observed Resident No. 3, who appeared to be a quite frail, thin and ill female, being tube fed. The feeding bag indicated that Resident No. 3 was receiving 240 calories (240 cc) per day. Resident No. 3's room had a strong odor, which the team member suspected was indicative of a skin infection, and a deodorizer can was on the floor next to Resident No. 3's bed. Respondent had no policy or procedure in place to monitor the continued necessity or advisability of such a condition as Resident No. 3's reduced feeding. The failure to have such a policy in place potentially put other residents at risk, which is a consideration of the surveyors when they make their decisions regarding the existence of a deficiency. The evidence fails to demonstrate that Respondent obtained informed consent from Resident No. 3's family for the reduced feeding. Respondent failed to fully inform the family of the effects or risks of reduced feeding on the healing of Resident No. 3's pressure sores. Respondent conducted planning meetings regarding Resident No. 3's care plan, but her health care surrogate, her son, was not invited to attend; whereas, if he was invited to attend, he would have had full knowledge of the effects or risks of the reduced feeding on the healing of her pressure sores. The evidence demonstrates that the reduced feeding in Resident No. 3's situation was not compatible with the standard of palliative care and was inconsistent with acceptable end-of- life care practices. Tag F224 Tag F224 incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), which requires, in pertinent part, Respondent to "develop and implement written policies and procedures that prohibit mistreatment, neglect and abuse of residents." Neglect is defined by the SOM guidelines as "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness." The SOM guidelines further provide that, on an individual basis, neglect occurs "when a resident does not receive a lack of care in one or more areas (e.g., absence of frequent monitoring for a resident known to be incontinent, resulting in being left to lie in urine or feces)." The intent of the federal regulation is provided in the SOM guidelines, which provide, in pertinent part, that the intent is "to ensure that the facility has in place an effective system that regardless of the source (staff, other residents, visitors, etc.) prevents mistreatment, neglect, and abuse of residents . . . . However, such a system cannot guarantee that a resident will not be abused; it can only assure that the facility does whatever is within its control to prevent mistreatment, neglect, and abuse of residents." Petitioner's survey team determined that Respondent did not have procedures and policies in place to prevent the "neglect" of Resident No. 3. It was within Respondent's control to attempt to ascertain medically the causative agent of Resident No. 3's congestion. Respondent failed to seek a cause, medically, of the congestion but relied upon what was related to Respondent's staff as to what occurred at the hospice facility when the hospice facility was faced with Resident No. 3's congestion. Resident No. 3's tube feeding was drastically reduced based upon this reliance. It was within Respondent's control to fully inform Resident No. 3's health care surrogate of the effects of the drastically reduced tube feeding. The evidence failed to demonstrate that her health care surrogate was fully informed by Respondent regarding the effects of the reduced feeding on her pressure sores. Resident No. 3's physician indicated that he would agree with reducing the feeding if the family agreed to the reduction. The health care surrogate, not being informed of the full ramifications, agreed to the reduction in the tube feeding. Whether Respondent provided Resident No. 3 the necessary goods and care was indeterminable by the survey team. Respondent failed to provide goods and services to Resident No. 3 necessary to avoid physical harm or mental anguish. Respondent failed to have written policies and procedures that would have prohibited neglect to Resident No. 3; however, in accordance with the SOM guidelines, the written policies and procedures could not have guaranteed that she would not have been neglected. Petitioner cited Respondent for committing a violation of Tag F224 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F224 deficiency. Tag F280 Tag F280 incorporates the requirement under federal regulation 42 CFR 483.20(k)(2), which requires, in pertinent part, the development of a comprehensive care plan (Plan) within seven days of the completion of the comprehensive assessment; the Plan to be prepared by an "interdisciplinary team," which includes "the attending physician, a registered nurse with responsibility for the resident, and other appropriate staff in disciplines as determined by the resident's needs, and to the extent practicable, . . . the resident's family or . . . legal representative"; and periodic review and revision by a team of qualified persons after each assessment. Respondent failed to update or revise Resident No. 3's care plan to address the symptom of congestion, which led to the reduced feeding. Respondent failed to invite or include Resident No. 3's health care surrogate to participate in any planning of Resident No. 3's care or in any decisions regarding her nutritional needs. Petitioner cited Respondent for committing a violation of Tag F280 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F280 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to ensure that a "resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable" and that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." The SOM guidelines define a pressure sore as "ischemic ulceration and/or necrosis of tissues overlying a bony prominence that has been subjected to pressure, friction or shear." Furthermore, the SOM guidelines provide a "staging system," which is one method of describing the extent of tissue damage, and which provides, in pertinent part, that "Stage III" is described as a "full thickness of skin is lost, exposing the subcutaneous tissues - presents as a deep crater with or without undermining adjacent tissue" and that "Stage IV" is described as a "full thickness of skin and subcutaneous tissue is lost, exposing muscle and/or bone." Pressure sores in a terminally ill patient are unavoidable. Resident No. 3's pressure sores were unavoidable due to her clinical conditions. For Resident No. 3, maintaining adequate nutrition and hydration was necessary to prevent her pressure sores from worsening, to promote healing, and to prevent infection and breakdown. Respondent drastically reduced Resident No. 3's tube feeding to 240 calories (240 cc) per day. One pressure sore had worsened from a Stage III to a Stage IV. The dead tissue in the Stage III pressure sore was removed, and as a consequence, the pressure sore enlarged to a Stage IV pressure sore. No clinical measurements were available to indicate whether the reduction in the tube feeding negatively affected Resident No. 3. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. The evidence is insufficient to demonstrate that Respondent committed a violation of Tag F314. Tag F325 Tag F325 incorporates federal regulation 42 CFR Section 4483.25(i), which, in pertinent part, requires a facility to ensure that a resident "maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible." Resident No. 3's clinical condition had a great impact on her nutritional status. Her tube feeding was reduced drastically to 240 calories (240 cc) per day. Respondent failed to properly discuss with and fully inform Resident No. 3's health care surrogate of the impact or effects of such a reduction. Moreover, no periodic review of the reduction was performed by Respondent, which was responsible for a care plan for Resident No. 3. The periodic examination of Resident No. 3's physician or the physician's assistant is no substitute for Respondent's responsibility for periodic review and update or revision, if necessary, of Resident No. 3's care plan. Respondent failed to "ensure" that Resident No. 3's nutritional status was maintained. Petitioner cited Respondent for committing a violation of Tag F325 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F325 deficiency. Resident No. 1 Resident No. 1 was admitted to Respondent in September 1998, with a Stage IV pressure sore. Full thickness of skin and subcutaneous tissue was lost, exposing muscle and/or bone in a Stage IV pressure sore. To aid the healing of the pressure sore, Resident No. 1's physician ordered a variety of interventions, including ordering that she be given a protein supplement, Promod, in her juice twice a day. Petitioner's registered dietician, who was a member of the survey team, personally observed Resident No. 1 during at least two meals in which Resident No. 1 did not ingest the Promod. Respondent had no system in place to track whether the physician's order was being implemented. Having no such system in place, Respondent was unable to inform the physician of the ineffectiveness of the treatment modality addressing the pressure sore to enable the physician to implement a more effective alternative. During the initial tour of the facility, Petitioner's dietician noticed that Resident No. 1 had a large bruise on the left side of his forehead. The bruise was approximately the size of a quarter to a half-dollar and was a recent bruise that could have been sustained minutes or hours prior to its discovery by Petitioner's dietician. Resident No. 1 was confused and could not inform Petitioner's dietician how his forehead sustained the bruise. Respondent was unaware of the bruise until Petitioner's dietician brought the bruise to Respondent's attention. Respondent had no documentation or information on the bruise. An unknown injury report was completed after Petitioner's dietician brought the bruise to Respondent's attention. Tag F225 Tag F225 incorporates federal regulation 42 CFR 483.13(c), which provides, in pertinent part, that the facility "must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress; and that the "results of all investigations must be reported to the administrator or his designated representative and to officials in accordance with state law " Respondent should have been aware of the bruise prior to the bruise being brought to Respondent's attention by Petitioner's dietician. The bruise was quite obvious and not hidden. Respondent failed to investigate the bruise, an injury of unknown origin. When Respondent failed to investigate the bruise, a potential risk of continued harm to Resident No. 1 and of harm to other residents existed. After Petitioner's dietician, a member of the Petitioner's survey team, reported the bruise to Respondent, an investigation by Respondent ensued. Afterward, the requirements for the investigation and reporting were complied with and adhered to. Petitioner cited Respondent for committing a violation of Tag F225 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F225 deficiency. Tag F314 Tag F314 incorporates federal regulation 42 CFR Section 483.25(c), which requires, in pertinent part, a facility to ensure that a "resident who enters the facility without pressure sores does not develop pressure sores unless the individual's clinical condition demonstrates that they were unavoidable" and that a "resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing." Resident No. 1's physician ordered the ingestion of Promod. Respondent failed to ensure that Resident No. 1 ingested the Promod in accordance with the physician's order. Further, Respondent had no system in place to track whether the physician's order was being implemented, and, therefore, the physician was unable to determine the type of intervention needed, if any. Petitioner cited Respondent for committing a violation of Tag F314 and classified the violation as a Class II deficiency. Petitioner also assigned a federal scope and severity rating of "G" to the Tag F314 deficiency. Corrective Action Respondent received Petitioner's survey report on April 29, 1999. The survey report contained the date by which Respondent had to correct the deficiencies, which was by April 27, 1999. The time period for Respondent to correct the deficiencies had elapsed before Respondent was notified of the date for correcting the deficiencies. Respondent submitted a plan of action to correct the deficiencies. On April 27, 1999, Petitioner visited Respondent to determine the status of the Class II deficiencies. All of the deficiencies were not corrected, but, as a result of the visit, Petitioner changed Tags F224, F225, and F280 to Class III deficiencies. On July 2, 1999, Petitioner re-surveyed Respondent. Petitioner determined that Respondent had corrected all of the deficiencies. Conditional License Based upon the Class II deficiencies of the April 1999 survey, Petitioner issued Respondent a Conditional license, effective April 21, 1999, through July 2, 1999, from the date of the survey to the date the deficiencies were corrected. Penalty Based upon the Class II deficiencies of Tags F224, F225, F314, and F325, cited as a result of the April 1999 survey, Petitioner imposed a fine of $20,000 upon Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order and therein: Dismiss the charge, as it relates to Resident No. 3 of the April 1999 survey, that Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast- Florida) violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c). Find that, as to the October 1998 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) violated Tag F309, which incorporates federal regulation 42 CFR Section 483.25, and Rule 59A-4.1288, Florida Administrative Code; and that the violation is a Class II deficiency. Find that, as to the April 1999 survey, Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida): Violated Tag F224, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(i), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A- 4.106(4)(x), Florida Administrative Code. Violated Tag F225, which incorporates federal regulation 42 CFR Section 483.13(c)(1)(ii), and Rule 59A- 4.106(4)(cc), Florida Administrative Code. Violated Tag F314, which incorporates federal regulation 42 CFR Section 483.25(c), Subsections 400.022(1)(j), (k), and (l), Florida Statutes, and Rule 59A-4.1288, Florida Administrative Code. Violated Tag F325, which incorporates federal regulation 42 CFR Section 483.25(i)(1), Subsection 400.022(1)(l), Florida Statutes, and Rule 59A-4.109(2), Florida Administrative Code. Impose a penalty of $2,500 for the violation committed as to the October 1998 survey. Impose a penalty of $5,000 per violation for the four violations committed as to the April 1999 survey, totaling $20,000. Uphold the change in the license rating of Pinehurst Convalescent Center (Beverly Enterprises-Fla, Inc., d/b/a Beverly Gulf Coast-Florida) to a Conditional license, effective April 21, 1999, through July 2, 1999. DONE AND ENTERED this 30th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 June, 2000.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form 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. 5. The Respondent shall pay the Agency $14,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 6. Count VII of the Administrative Complaint is voluntarily withdrawn. Filed September 17, 2014 8:00 AM Division of Adthinistrative Hearings ORDERED at Tallahassee, Florida, on this i] C day of Sperber , 2014. re Elizab, Daigle Agen& for H Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and corre pees ot his Final Order was served othe below-named persons by the method designated on this lay of , 2014. Richard Shoop, Agency Cler! Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Theodore E. Mack, Esq. Office of the General Counsel Powell & Mack Agency for Health Care Administration 3700 Bellwood Drive (Electronic Mail) Tallahassee, Florida 32303 (U.S. Mail) Lynn A. Quimby-Pennock Administrative Law Judge (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vv. AHCA Nos. 2013011296 2013012887 OAK TREE MANOR, INC. d/b/a OAK TREE MANOR, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Oak Tree Manor, Inc. d/b/a Oak Tree Manor (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action against an assisted living facility to revoke Respondent’s license to operate an assisted living facility in the State of Florida and to impose an administrative fine in the amount of fourteen thousand dollars ($14,000.00) based upon two (2) class I deficiencies and four (4) unclassified deficiencies. JURISDICTION AND VENUE 1, The Agency has jurisdiction pursuant to §§ 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Florida Statutes (2013). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. EXHIBIT C4 1” PARTIES 3. The Agency is the regulatory authority responsible for licensure of assisted living facilities and enforcement of all applicable federal regulations, state statutes and rules governing assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida Statutes, and Chapter S8A-5, Florida Administrative Code, respectively. 4. Respondent operates a thirty-nine (39) bed assisted living facility located at 7770 128" Street North, Seminole, Florida 33776, and is licensed as an assisted living facility, license number 9262. 5. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. That Florida law provides: (1) No resident of a facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. (b) Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy. (c) Retain and use his or her own clothes and other personal property in his or her immediate living quarters, so as to maintain individuality and personal dignity, except when the facility can demonstrate that such would be unsafe, impractical, or an infringement upon the rights of other residents. (d) Unrestricted private communication, including receiving and sending unopened correspondence, access to a telephone, and visiting with any person of his or her choice, at any time between the hours of 9 a.m. and 9 p.m. ata minimum. Upon request, the facility shall make provisions to extend visiting hours for caregivers and out-of-town guests, and in other similar situations. (e) Freedom to participate in and benefit from community services and activities and to achieve the highest possible level of independence, autonomy, and interaction within the community. () Manage his or her financial affairs unless the resident or, if applicable, the resident’s representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator of the facility to provide safekeeping for funds as provided in s. 429.27. (g) Share a room with his or her spouse if both are residents of the facility. (h) Reasonable opportunity for regular exercise several times a week and to be outdoors at regular and frequent intervals except when prevented by inclement weather. (i) Exercise civil and religious liberties, including the right to independent personal decisions. No religious beliefs or practices, nor any attendance at religious services, shall be imposed upon any resident. (j) Access to adequate and appropriate health care consistent with established and recognized standards within the community. 8. Section 429.28(1)(a through j), Florida Statutes (2013). That Florida law provides: (6) RESIDENT RIGHTS AND FACILITY PROCEDURES. (a) A copy of the Resident Bill of Rights as described in Section 429.28, F.S., ora summary provided by the Long-Term Care Ombudsman Council shall be posted in full view in a freely accessible resident area, and included in the admission package provided pursuant to Rule S8A-5.0181, F.A.C. (b) In accordance with Section 429.28, F.S., the facility shall have a written grievance procedure for receiving and responding to resident complaints, and for residents to recommend changes to facility policies and procedures. The facility must be able to demonstrate that such procedure is implemented upon receipt of a complaint. (c) The address and telephone number for lodging complaints against a facility or facility staff shall be posted in full view in a common area accessible to all residents. The addresses and telephone numbers are: the District Long-Term Care Ombudsman Council, 1(888)831-0404; the Advocacy Center for Persons with Disabilities, 1(800)342-0823; the Florida Local Advocacy Council, 1(800)342- 0825; and the Agency Consumer Hotline 1(888)419-3456. (d) The statewide toll-free telephone number of the Florida Abuse Hotline “1(800)96-ABUSE or 1(800)962-2873” shall be posted in full view in a common area accessible to all residents. (c) The facility shall have a written statement of its house rules and procedures which shall be included in the admission package provided pursuant to Rule 58A- 5.0181, F.A.C. The rules and procedures shall address the facility’s policies with respect to such issues, for example, as resident responsibilities, the facility’s alcohol and tobacco policy, medication storage, the delivery of services to residents by third party providers, resident elopement, and other administrative and housekeeping practices, schedules, and requirements. (f) Residents may not be required to perform any work in the facility without compensation, except that facility rules or the facility contract may include a requirement that residents be responsible for cleaning their own sleeping areas or apartments. If a resident is employed by the facility, the resident shall be compensated, at a minimum, at an hourly wage consistent with the federal minimum wage law. (g) The facility shall provide residents with convenient access to a telephone to facilitate the resident’s right to unrestricted and private communication, pursuant to Section 429.28(1)(d), F.S. The facility shall not prohibit unidentified telephone calls to residents. For facilities with a licensed capacity of 17 or more residents in which residents do not have private telephones, there shall be, at a minimum, an accessible telephone on each floor of each building where residents reside. (h) Pursuant to Section 429.41, F.S., the use of physical restraints shall be limited to half-bed rails, and only upon the written order of the resident’s physician, who shall review the order biannually, and the consent of the resident or the resident’s representative. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance shall not be considered a physical restraint. Rule 58A-5.0182(c), Florida Administrative Code. 9. That on September 13, 2013, the Agency completed a complaint survey (CCR# 2013009685) of Respondent’s facility. 10. That based upon the review of records, observation, and interview, Respondent failed to ensure a safe and decent living environment, free from abuse and neglect, and honoring resident rights to privacy and to be treated with dignity, the same being contrary to the requirements of law. 11. That Petitioner’s representative observed on September 13, 2013 at approximately 6:15 AM, during a tour of the Respondent facility, the following: a. Resident number two (2) was sitting in a wheelchair while breakfast was being served. The resident had what appeared to be a gait belt around the resident’s waist and around the back of the wheelchair. The belt was fastened in the rear of the wheelchair and out of the apparent reach of the resident. Resident number three (3) was sitting at a table in a wheelchair. This resident had a belt attached around the wheel chair and fastened at the resident’s waist in front. 12. That Petitioner’s representative interviewed Respondent’s administrator regarding the restrain belts above described on residents numbered two (2) and three (3) and the administrator indicated as follows: a. She was aware that restraints such as belts were not permitted in assisted living facilities. b. She used the restraint belts on the residents to keep the residents far enough from the table so the residents could not reach the table and “pull on it.” 13. That Petitioner’s representative observed on September 13, 2013 from approximately 9:45 AM to 12:10 PM, during a tour of the Respondent facility, the following: a. Full bed rails were in the rooms of and under the beds of the beds assigned to residents numbered two (2), three (3), four (4), five (5), and six (6). b. The beds assigned to these residents had attachments for the bed rails to be attached to the beds. c. Similar bed rails and beds were noted for at least five (5) other resident beds throughout the facility. 14. That Petitioner’s representative interviewed Respondent’s staff member “B” on September 13, 2013, at approximately 9:55 AM while the staff member was outside of the room of resident number two (2) and the staff member indicated as follows: a. When asked about the above referenced bed rails, the staff member indicated that the rails were put on the residents’ beds at night when the residents went to bed. b. The rails were removed from the beds in the morning when morning staff went into resident rooms to get residents up and dressed for breakfast. 15. That Petitioner’s representative observed on September 13, 2013, from approximately 9:45 AM to 12:10 PM, during a tour of the Respondent facility, the following: a. The door knobs to the rooms belonging to residents numbered two (2), three (3), four (4), five (5), and nine (9), appeared to be installed backwards. b. The locks on the doors, under the knob, were on the outside of the rooms’ doors. c. The same reversed door knobs were noted on at least five (5) other resident rooms in the facility. 16. That at approximately 2:00 PM on September 13, 2013, a representative of the local fire authority having jurisdiction, after having inspected the facility, confirmed that the door knobs installed backwards on resident rooms were a violation of local fire safety codes, presented a threat to the health and safety of residents, and ordered that the door knob installation be corrected immediately. 17. That Petitioner’s representative interviewed Respondent’s administrator regarding the utilization of full bed rails on resident beds and the backwards installed door knobs on September 13, 2013, and the administrator indicated as follows: a. She acknowledged utilizing full bed rails on resident beds and indicated the rails were used to keep residents from getting out of bed at night. b. She acknowledged that door knobs were installed backwards on some room doors and indicated this was done to prevent residents from locking themselves in their rooms. 18. That Petitioner’s representative observed and interacted with resident number one (1), an alert and oriented individual, on September 13, 2013 commencing at approximately 12:15 PM, and noted as follows: a. The resident was lying in the resident’s bed in the resident’s room. b. The resident’s room did not have any door at the entranceway to the room arid no other means, such as a curtain or otherwise, to block the view of the resident and the resident’s room to any passers-by. The resident indicated that Respondent’s staff member “C” had come to the resident’s room about thirty (30) minutes earlier to get the resident up for lunch and to change the resident. The resident told the staff member that the resident did not want to get up for lunch. Approximately five (5) minutes thereafter, Respondent’s staff member “D” came to the resident’s room asking why the resident did not want to go to lunch and told the resident “I’ve got about ten state inspectors in this building. If you don’t get up and get changed and cleaned up, they’re going to lock you up and put you away in a mental hospital.” The resident indicated that approximately a month earlier, Respondent’s staff member “D” also told the resident that if the resident did not follow the rules, the resident would be locked up in a mental hospital. The resident added that Respondent’s administrator had told the resident that if the resident did not do as the resident was asked by the facility, the resident would be sent to a mental hospital. When asked why there was no door to the entrance of the resident’s room, the resident explained that staff had removed the door several months earlier “... because I didn’t comply.” The resident indicated the resident required assistance with dressing and that staff assisted with dressing the resident in the room by the bed in view of the open doorway. 19. That Petitioner’s representative interviewed a representative of the Office of the Attorney General on September 13, 2013, at approximately 12:35 PM, who indicated that while approaching the room of resident number one (1) at approximately noon, he heard Respondent’s staff member “D” tell resident number one (1) that the resident needed to get up because “I’ve got about ten state inspectors in here and if you don’t get up, they’re going to put you away ina mental hospital.” 20. That Petitioner’s representative and a representative of Florida’s Department of Children and Families, Adult Protective Investigations, interviewed Respondent’s staff member “D” on September 13, 2013, at approximately 12:40 PM, who indicated as follows: a. Staff member “C” asked him to go try to get resident number one (1) up for lunch because the resident was “acting up.” b. He told resident number one (1) that people from the state were in the building and that if the resident didn’t get changed before lunch, the resident could be in trouble. 21. That Petitioner’s representative interviewed Respondent’s administrator on September 13, 2013 at approximately 2:25 PM regarding resident number one (1) and the administrator indicated as follows: a. She realized that staff member “D” became frustrated with the resident and acknowledged that she had advise the resident in the past about the need to comply with the rules of the facility. b. The resident’s door had been removed approximately one (1) year earlier because the resident kept slamming it. 10 22. That Petitioner’s representative reviewed Respondent’s personnel record related to staff member “D” during the survey and noted a Level 1 criminal history background screening dated May 5, 2008, but no Level 2 criminal history background screening. 23. That Petitioner’s representative checked the Agency’s criminal background screening database regarding Respondent’s staff member “D” and noted the database noted that "A new screening is required.” 24. That the representative of Florida’s Department of Children and Families, Adult Protective Investigations indicated to Petitioner’s representative that the Department representative would be verifying its investigation for abuse or other mental injury related to resident number one (1) and the resident’s treatment by Respondent’s staff member “D” and related to hazardous conditions for residents related to the improperly installed door knobs. 25. That the above reflects Respondent’s failure to ensure that its residents are provided a safe and decent living environment free from abuse and neglect including but not limited to Respondent’s utilization of prohibited restraints of belts and full bed rails, the installation and maintenance of door knobs installed in a manner presenting a safety hazard, the verbal abuse or threats to a resident, the abuse or neglect of a resident in not ensuring privacy and dignity, and the failure to assure staff are eligible, based upon criminal history, to provide services to vulnerable adults, thereby threatening resident physical and emotional well-being. 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 presents an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. il 27. That the same constitutes a Class I offense as defined in Florida Statute 429.19(2)(a) (2013). WHEREFORE, the Agency intends to impose an administrative fine in the amount of seven thousand dollars ($7,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(a), Florida Statutes (2013). COUNT if 28. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 29. That Florida law provides: (1) SERVICE PROHIBITION. An ALF may not hold itself out to the public as providing any service other than a service for which it is licensed to provide. (2) LICENSE TRANSFER PROHIBITION. Licenses are not transferable. Whenever a facility is sold or ownership is transferred, including leasing, the transferor and transferee must comply with the provisions of Section 429.41, F.S., and the transferee must submit a change of ownership license application pursuant to Rule 58A-5.014, F.A.C. (3) CHANGE IN USE OF SPACE REQUIRING CENTRAL OFFICE APPROVAL. A change in the use of space that increases or decreases a facility’s capacity shall not be made without prior approval from the Agency Central Office. Approval shall be based on the compliance with the physical plant standards provided in Rule 58A-5.023, F.A.C., as well as documentation of compliance with applicable fire safety and sanitation requirements as referenced in Rule 58A-5.0161, F.A.C. (4) CHANGE IN USE OF SPACE REQUIRING FIELD OFFICE APPROVAL. A change in the use of space that involves converting an area to resident use, which has not previously been inspected for such use, shall not be made without prior approval from the Agency Field Office. Approval shall be based on the compliance with the physical plant standards provided in Rule 58A-5.023, F.A.C., as well as documentation of compliance with applicable fire safety and sanitation standards as referenced in Rule 58A-5.0161, F.A.C. Rule 58A-5.016(1 through 4), Florida Administrative Code. 30. That on September 13, 2013, the Agency completed a complaint survey (CCR# 2013009685) of Respondent’s facility. 31. | That based upon the review of records, observation, and interview, Respondent operated its facility in excess of its licensed capacity of thirty-nine (39) residents without receiving licensure authorization from the Agency, the same being contrary to the mandates of law. 32. That Petitioner’s representative reviewed and noted on both the Respondent’s license certificate and on the Agency’s official facility record web site, that Respondent was licensed for “thirty-nine (39) beds. 33. That Petitioner’s representative reviewed Respondent’s admission and discharge log during the survey and noted that, based thereon, Respondent was providing assisted living residential services to forty-two (42) residents. 34. That Petitioner’s representative interviewed Respondent’s administrator on September 13, 2013, at approximately 9:45 AM, who indicated that the facility had forty-two (42) residents on site and one (1) in the hospital, and that she was aware that the facility was operating in excess of its licensed capacity. 35. That Petitioner’s representative toured the Respondent facility on September 13, 2013, and counted a total of forty-four (44) residents. 36. That the above reflects Respondent’s failure to ensure that it provided services within its licensed resident capacity. 37. Respondent was cited for violating Florida’s regulatory law. 38. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class IIL, or class IV violation. Unless otherwise specified by 13 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. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT III 39. | The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 40. Under Florida law, no resident of an assisted living facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live in a safe and decent living environment, free from abuse and neglect. § 429.28(1)(a), Fla. Stat. (2013). 41. 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. (2013). 42. 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 14 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, secking 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. (2013). 43. 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. 44. 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. Proof of compliance with 15 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 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 satisfies the requirements of this section if the person subject to screening has not been unemployed for more than 90 days and 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. (2013). 45. 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 listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2013). 46. 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. (2013). 47. Under Florida law, an employer may not hire, select, or otherwise allow an employee to 16 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. 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. 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. § 435.06(2), Fla. Stat. (2013). 48. 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. (2013). 49. Under Florida law, 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. In addition, records shall contain the following, as applicable ... Documentation of compliance with level 1 background screening 17 for all staff subject to screening requirements as required under Rule 58A-5.019, F.A.C. Rule 58A-5.024(2)(a)3, Florida Administrative Code. 50. Florida has one of the largest vulnerable populations in the country, with over 25% of the state’s population over the age of 65, as well as children and disabled adults. These vulnerable populations require special care as they are at an increased risk of abuse. In 1995, the Florida Legislature created standard procedures for the screening of prospective employees where the Legislature had determined it necessary to conduct criminal history background checks to protect vulnerable persons. Chapter 435, Florida Statutes, outlines the background screening standards for Level 1 employment screening and Level 2 employment screening. 51. In 2010, the Florida Legislature substantially rewrote the requirements and procedures for criminal background screening of the persons and business that deal primarily with vulnerable populations. The 2010 changes provided that “vulnerable persons” include minors and adults whose ability to perform the normal activities of daily living new or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. Among other things, the new requirements: (a) mandated that no person be allowed to begin work until the background screening was completed, (b) increased the level of background screening from Level 1 to Level 2, (c) expanded the number of disqualifying offenses for employees, and (d) prohibited exemptions from disqualification for employees until three after the completion of all sentencing sanctions.' 52. The primary purpose served by criminal background screening is the protection of the safety and well-being of the facility residents. As set forth above, assisted living facility ' The statements contained in this paragraph and the preceding paragraph is based upon statements and findings set forth within the Florida House of Representatives Staff Analysis for HB 7069. House Bill 7069 was enacted into law by the Florida Legislature effective July 1, 2010. Ch. 2010-114, Laws of Fla. 18 residents oftentimes consist of disabled adults and frail elders with mental and/or physical disabilities, who are at substantial risk of physical, mental and emotional abuse, medical neglect and financial exploitation. By enacting these provisions, the Florida Legislature has determined that the risk to this vulnerable population is of such significance that prospective employment be delayed until the risk is addressed through the background screening process. As a secondary purpose, background screening bolsters the public’s trust in assisted living facilities and lessens the risk of potentially business ending civil liability for a facility. The commission of a crime or tort upon a resident not only has a direct impact upon the resident victim, but may also have an impact upon the fellow residents within the facility as well as the family members of the resident victim. 53. That on September 13, 2013, the Agency completed a complaint survey (CCR# 2013009685) of Respondent’s facility. 54. Based upon record review and interview, the Respondents failed to ensure that the staff had the required background screening for two (2) of four (4) sampled staff members. 55. That Petitioner’s representative reviewed Respondent’s personnel record for staff member “C” on September 13, 2013, and noted a Level 2 criminal history background screening dated May 9, 2013. 56. That the date of hire for Respondent’s staff member “C” could not be determined from the contents of the staff member’s personnel records. 57. That Petitioner’s representative interviewed Respondent’s administrator on September 13, 2013 at approximately 9:10 AM regarding the date of hire for staff member “C” and the administrator indicated as follows: a. The administrator presented a partially completed employee application for staff member “C” dated December 2012. b. The administrator indicated staff member “C” was hired in December 2012, but could not give a specific date. 58. That Petitioner’s representative reviewed Respondent’s personnel record related to staff member “D” during the survey and noted a Level 1 criminal history background screening dated May 5, 2008, but no Level 2 criminal history background screening. 59. That Petitioner’s representative checked the Agency’s criminal background screening database regarding Respondent’s staff member “D” and noted the database noted that "A new screening is required.” 60. That Petitioner’s representative again interviewed Respondent’s administrator regarding the above described background screening non-compliance and the administrator acknowledged staff “C” was hired before obtaining a criminal history background screening and indicated that she was unaware that staff member “D” required a new background screening. 61. — 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 Il 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. (2013). 62. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class I, class III, or class IV violation. Unless otherwise specified by 20 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. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT IV 63. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 64. That Florida law provides: (1) ADMINISTRATORS. Every facility shall be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including the management of all staff and the provision of adequate care to all residents as required by Part I of Chapter 429, F.S., and this rule chapter. Rule 58A-5.019(1), Florida Administrative Code. 65. That on September 13, 2013, the Agency completed a complaint survey (CCR# 2013009685) of Respondent’s facility. 66. That based upon the review of records, observation, and interview, Respondent’s administrator failed to ensure the operations of the Respondent facility, including the management of all staff and the provision of adequate care for residents, the same being contrary to the mandates of law. 67. The Agency re-alleges and incorporates Counts I through III herein as if fully set forth herein. 68. That Petitioner’s representative interviewed Respondent’s administrator on September 13, 2013, regarding the facility’s census and the administrator indicated that she planned to apply 21 for an increase in bed space from the Agency’s central office and understood the facility was over capacity but, in the meantime, “I just can’t say no.” 69. That the above reflects Respondent’s failure to ensure that its administrator operated the facility to assure the management of all staff and the provision of adequate care for residents including, but not limited to, the knowing failure to operate within licensed capacity, the knowing failure to assure resident’s reside in a safe and decent living environment, the knowing use of prohibited restraints on residents, the employment of staff not determined eligible for employment in accord with law, and the knowing denial of a resident’s right to privacy and due respect to dignity. 70. 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 presents an imminent danger to the clients of the provider or a substantial probability that death or serious physical or emotional harm would result therefrom. 71. That the same constitutes a Class I offense as defined in Florida Statute 429.19(2)(a) (2013). WHEREFORE, the Agency intends to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against, an assisted living facility in the State of Florida, pursuant to § 429.19(2)(a), Florida Statutes (2013). COUNT V 72. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 73. That Florida law provides: 22 (1) SERVICE PROHIBITION. An ALF may not hold itself out to the public as providing any service other than a service for which it is licensed to provide. (2) LICENSE TRANSFER PROHIBITION. Licenses are not transferable. Whenever a facility is sold or ownership is transferred, including leasing, the transferor and transferee must comply with the provisions of Section 429.41, F.S., and the transferee must submit a change of ownership license application pursuant to Rule 58A-5.014, F.A.C. (3) CHANGE IN USE OF SPACE REQUIRING CENTRAL OFFICE APPROVAL. A change in the use of space that increases or decreases a facility’s capacity shall not be made without prior approval from the Agency Central Office. Approval shall be based on the compliance with the physical plant standards provided in Rule 58A-5.023, F.A.C., as well as documentation of compliance with applicable fire safety and sanitation requirements as referenced in Rule 58A-5.0161, F.A.C. (4) CHANGE IN USE OF SPACE REQUIRING FIELD OFFICE APPROVAL. A change in the use of space that involves converting an area to resident use, which has not previously been inspected for such use, shall not be made without prior approval from the Agency Field Office. Approval shall be based on the compliance with the physical plant standards provided in Rule 58A-5.023, F.A.C., as well as documentation of compliance with applicable fire safety and sanitation standards as referenced in Rule 58A-5.0161, F.A.C. Rule 58A-5.016(1 through 4), Florida Administrative Code. 74. That on October 29, 2013, the Agency completed a re-visit to the complaint survey (CCR# 2013009685) of Respondent’s facility. 75. That based upon the review of records, observation, and interview, Respondent operated its facility in excess of its licensed capacity of thirty-nine (39) residents without receiving licensure authorization from the Agency, the same being contrary to the mandates of law. 76. That Petitioner’s representative reviewed and noted on both the Respondent’s license certificate and on the Agency’s official facility record web site, that Respondent was licensed for thirty-nine (39) beds. 77. That Petitioner’s representative interviewed Respondent’s administrator on October 29, 2013, who indicated as follows: 23 eG. Two (2) resident will be leaving at the end of the month, leaving the facility only one (1) over licensed capacity. One (1) resident was on hospice and was expected to pass at any time. She does not want to relocate the hospice resident at this time and does not want to make someone else move as they are happy in the facility, and the hospice patient is on the verge of death. The facility has twenty-four (24) rooms and could increase capacity to forty-eight (48) beds. She knew she was still operating in excess of licensed capacity. 78. That Petitioner’s representative observed the hospice patient during the survey in a wheel chair in the dining room. 79. That Respondent’s administrator wrote in a letter to the Agency dated September 16, 2013 that forty-five (45) day discharge notices would be issued to residents numbered one (1), two (2), three (3), four (4), and five (5). 80. That Petitioner’s representative reviewed Respondent’s presented admissions and discharge log, required to be maintained, and noted as follows: a. The administrator was observed in the process of alphabetizing current residents only. The administrator indicated she was updating the log to keep it neater. The log was not properly maintained upon review, for example nine (9) residents have dates of discharge with no documented reason for discharge or a location to - which the resident was discharged. 24 81. That omitted from the printed admission and discharge log was the above referenced hospice resident, resident number three (3), and omitted two (2) residents alleged to be moving out on October 31, 2013, resulting in the printed list reflecting a census of thirty-nine (39), however the hospice resident’s name was later hand written at the end of the list. Resident number four (4) is marked as discharged “10/1/13 to ALF.” Resident number five (5) is not listed on the presented admission and discharge records, either presented copy. Resident number five (5), who had been interviewed in the September 2013 survey, was not listed on the admission and discharge record. Only one resident, resident number four (4), was listed as discharged since the September 13, 2013 survey, with no annotation as to where the resident was discharged or from where the resident had been admitted. That Respondent’s administrator wrote, but had not sent, a letter to the Agency dated October 28, 2013, which was provided to Petitioner’s representative, and indicated “As required, 4 of the 5 residents at Oak Tree Manor have relocated,” and further noted the remaining hospice resident. 82. That the facts regarding resident census on October 29, 2013, are: a. b. The resident count on September 13, 2013, was forty-four (44) residents. One (1) resident is listed as discharged since that date. Two (2) residents were scheduled for discharge October 31, 2013, leaving the census at forty-one (41). 25 d. The administrator did not count the hospice resident in the census and believed only one (1) over licensed capacity. 83. That the above reflects Respondent’s failure to ensure that it provided services within its licensed resident capacity. 84. Respondent was cited for violating Florida’s regulatory law. 85. 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. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. .COUNT VI 86. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 87. Under Florida law, no resident of an assisted living facility shall be deprived of any civil or legal rights, benefits, or privileges guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States as a resident of a facility. Every resident of a facility shall have the right to: (a) Live in a safe and decent living environment, free from abuse and neglect. § 429.28(1)(a), Fla. Stat. (2013). 88. 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. (2013). 26 89. 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. (2013). 90. 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 shail 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 27 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. 91. 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 bore by the licensee or the person fingerprinted. 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 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 satisfies the requirements of this section if the person subject to screening has not been unemployed for more than 90 days and 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. (2013). 92. 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 listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2013). 93. | Under Florida law, if an employer or Agency has reasonable cause to believe that 28 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. (2013). 94. Under Florida law, 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. 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. 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. § 435.06(2), Fla. Stat. (2013). 95. Under Florida law, any employee who refuses to cooperate in such screening or refuses 29 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. (2013). 96. Under Florida law, 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. In addition, records shall contain the following, as applicable ... Documentation of compliance with level 1 background screening for all staff subject to screening requirements as required under Rule 58A-5.019, F.A.C. Rule 58A-5.024(2)(a)3, Florida Administrative Code. 97. Florida has one of the largest vulnerable populations in the country, with over 25% of the state’s population over the age of 65, as well as children and disabled adults. These vulnerable populations require special care as they are at an increased risk of abuse. In 1995, the Florida Legislature created standard procedures for the screening of prospective employees where the Legislature had determined it necessary to conduct criminal history background checks to protect vulnerable persons. Chapter 435, Florida Statutes, outlines the background screening standards for Level 1 employment screening and Level 2 employment screening. 98. In 2010, the Florida Legislature substantially rewrote the requirements and procedures for criminal background screening of the persons and business that deal primarily with vulnerable populations. The 2010 changes provided that “vulnerable persons” include minors and adults whose ability to perform the normal activities of daily living new or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. Among other things, the new requirements: (a) mandated that no person be allowed to begin work until the background 30 screening was completed, (b) increased the level of background screening from Level 1 to Level 2, (c) expanded the number of disqualifying offenses for employees, and (d) prohibited exemptions from disqualification for employees until three after the completion of all sentencing sanctions.” 99. The primary purpose served by criminal background screening is the protection of the safety and well-being of the facility residents. As set forth above, assisted living facility residents oftentimes consist of disabled adults and frail elders with mental and/or physical disabilities, who are at substantial risk of physical, mental and emotional abuse, medical neglect and financial exploitation. By enacting these provisions, the Florida Legislature has determined that the risk to this vulnerable population is of such significance that prospective employment be delayed until the risk is addressed through the background screening process. As a secondary purpose, background screening bolsters the public’s trust in assisted living facilities and lessens the risk of potentially business ending civil liability for a facility. The commission of a crime or tort upon a resident not only has a direct impact upon the resident victim, but may also have an impact upon the fellow residents within the facility as well as the family members of the resident victim. 100. That on October 29, 2013, the Agency completed a re-visit to the complaint survey (CCR# 2013009685) of Respondent’s facility. 101. Based upon record review and interview, the Respondents failed to ensure that the staff had obtained or timely obtained the required background screening for sampled staff members. 102. That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted as follows: 2 The statements contained in this paragraph and the preceding paragraph is based upon statements and findings set forth within the Florida House of Representatives Staff Analysis for HB 7069. House Bill 7069 was enacted into law by the Florida Legislature effective July 1, 2010. Ch. 2010-114, Laws of Fla. 31 Two (2) of eleven (11) employee records contained evidence of Level 2 criminal history background screenings. See, Rule 58A-5.024(2), Florida Administrative Code. Nine (9) of eleven (11) employee records did not contain evidence of Level 2 criminal history background screenings. See, Id. Seven (7) of eleven (11) employee records contained documents entitled “Due Diligence Investigation Service AHCA Fingerprint Verification,” but no Level 2 or other criminal background screening result. One (1) record of the eleven (11) reviewed contained no evidence of any screening or attempt to conduct screening for an employee hired on September 1, 1996, employee “H.” One (1) record of the eleven (11) reviewed contained an AHCA background screening status reading “Awaiting Privacy Policy,” dated May 20, 2013, with the employee, staff “I,” hired on April 23, 2013. Staff member “A” started employment on September 12, 2012. Staff member “B” started employment on April 5, 2012. Staff member “C” started employment on December 1, 2012. Staff member “‘D” started employment on April 28, 2008. Staff member “E” had no start of employment date of record; had a notation fingerprints requests June 30, 2011; scheduled July 6, 2011; and no results of record in the file. Staff member “F” started employment on February 7, 1995. Staff member “G” had no start of employment date of record. 32 Staff member “H” started employment on September 1, 1996, with no evidence of background screening of record. Staff member “I” started employment on April 23, 2013. Staff member “J” started employment on July 8, 2013. Staff member “K” started employment on August 31, 2012, and the file reflecting eligible for employment dated January 17, 2013. 103. That Petitioner’s representative reviewed the Agency’s background screening data base on Respondent’s employees above recited and noted as follows: a. Employee “A” was determined eligible for employment on October 4, 2012, one (1) month after employment. Employee “B” was determined eligible for employment on October 4, 2012, six (6) months after employment. Employee “C” was determined eligible for employment on May 9, 2013, six (6) months after employment. Employee “D” was determined eligible for employment on September 17, 2013, four (4) months after required re-determination. Employee “E” was determined eligible for employment without a noted date. Employee “F” was determined eligible for employment on September 24, 2013, eight (8) years after employment. Employee “G” was determined eligible for employment on September 23, 2012. Employee “H” was not located in the data base. Employee “I” was determined eligible for employment on May 12, 2013, three (3) weeks after employment. 33 j. Employee “A” was determined eligible for employment on February 23, 2013, eight (8) months after employment. k. Employee “K” was noted as “New Screening Required.” 104. That Petitioner’s representative interviewed Respondent’s administrator on October 29, 2013 regarding staff background screening and the administrator indicated as follows: a. When asked how she knew an employee had been appropriately screened, she responded “I don’t know.” b. She does not have a computer in the facility and staff member “G” does the computer business for the facility. 105. That Petitioner’s representative telephonically interviewed Respondent’s staff member “G” during the survey who indicated that he is not familiar with the Agency background screening results website and has been providing the fingerprint verifications for employee files. 106. That the above reflects that Respondent is not applying the timely screening of employees prior to hiring for resident services, is unaware of the criminal background history of staff, has not implemented any systems to ensure compliance with backgrounds screening requirements, and has employed persons who are or may be ineligible for employment. 107. 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 34 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. (2013). 108. 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. (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. COUNT VII 109. The Agency re-alleges and incorporates Paragraphs one (1) through five (5) and Counts I through VI as if fully set forth herein. 110. That Respondent has been cited with two Class I deficiencies on a survey of September 13, 2013, and four (4) unclassified deficient practices on surveys of September 13 and October 29, 2013, including the failure to comply with criminal background screening standards. 111. That Florida law provides: In addition to the requirements of part IT of chapter 408, the agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in chapter 120 against a licensee for a violation of any provision of this part, part II of chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under s. 408.809, or for the actions of any facility employee ... (a) An intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility... (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 II deficiencies. 3. Five or more cited 35 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 background screening standards of this part, s. 408.809(1), or chapter 435... (i) An intentional or negligent life-threatening act in violation of the uniform firesafety standards for assisted living facilities or other firesafety standards that threatens the health, safety, or welfare of a resident of a facility, as communicated to the agency by the local authority having jurisdiction or the State Fire Marshal. Section 429.14(1)(a, e, f and i), Florida Statutes (2013). 112. 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, (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). 113. 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. 114. 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. 115. That the above reflects a demonstrated pattern of deficient performance. 116. That the above reflects intentional or negligent acts seriously or materially affecting the health, safety, or welfare of a resident of the facility. 117. That the above reflects a violation of the background screening requirements of law. 118. That the above reflects a violation of firesafety standards for assisted living facilities that 36 threaten the health, safety, or welfare of residents. 119. That the above, individually and collectively, reflect grounds for which the Agency may revoke Respondent’s licensure to operate and assisted living facility in the State of Florida. 120. That Respondent has a duty to maintain its operations in accord with the minimum standards of law and its actions or inactions as described with particularity within this complaint constitute intentional or negligent acts which are in violation of the mandates of law and materially affected the health or safety of residents. 121. 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: ye 552-1440 if if wo? By: /4 - # Thomas J, Walsh I, Esq. Fla. BayNo. 566365 37 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 3692 on December! on 2013 to Christine Gibree, Administrator and registered Agent for Oak Tree Manor, Inc. d/b/a Oak Tree Manor, 7770 128" Street North, Seminole, Florida 33766. / VA Thopiaé J. Walsh II f ¢ Copy furnished to: Patricia R. Caufman Field Office Manager 38 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Oak Tree Manor, Inc., d/b/a Oak Tree Manor CASE NO. 2013011296 2013012887 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 J waive my right to object and to have a hearing. J understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) __I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) 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 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH CASE NO. 14-2461 AHCA NOs. 2013012887 2013011296 OAK TREE MANOR, INC. d/b/a OAK TREE MANOR, Respondent. f SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Oak Tree Manor, Inc. d/b/a Oak Tree Manor (hereinafter “Respondent™), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party.” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an assisted living facility licensed pursuant to Chapters 429, Part [, and 408, Part I, Florida Statutes, Section 20.42, Florida Statutes and Chapter 58A-5, Florida Administrative Code; and WHEREAS. the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapters 429, Part 1, and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Respondent with an administrative complaint on or about December 16, 2013, notifying the Respondent of its intent to revoke Respondent’s Py 6 ” LIStHxa licensure to operate an assisted living facility in the State of Florida, and to impose administrative fines in the sum of fourteen thousand dollars ($14,000.00): and WHEREAS, Respondent requested formal administrative proceedings by selecting Option “3” on the Election of Rights form or by the filing of a Petition; 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, Respondent 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 120.87(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: a. Respondent agrees to pay fourteen thousand dollars ($14,000.00) in administrative fines to the Agency within thirty (30) days of the entry of the Final Order; and Page 2 of 6 b. Count VII of the administrative complaint referenced herein, seeking revocation of Respondent’s licensure to operate an assisted living facility in the State of Florida, shall be deemed dismissed; and c. The deficiency cited in the administrative complaint referenced herein and charged in Count | of the administrative complaint, designated as a violation of Agency prefix tag “A030” and charged as a State Class I deficiency, shall be deemed a State Class II deficiency; and d. The deficiency cited in the administrative complaint referenced herein and charged in Count [ of the administrative complaint, designated as a violation of Agency prefix tag “A077” and charged as a State Class ] deficiency, shall be deemed a State Class II deficiency. 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). Respondent denies the allegations raised in the administrative complaint referenced herein, and b). The Agency asserts the validity of the allegations raised in the administrative complaint referenced herein, as modified by paragraph four (4) herein. No agreement made herein shall preclude the Agency from imposing a penalty against Respondent for any deficiency/violation of statute or rule identified in a future survey of Respondent, which constitutes an “uncorrected” deficiency from surveys identified in the administrative complaint. In such case, Respondent 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 Respondent, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate Page 3 of 6 care, or a demonstrated pattern of deficient performance provided, however, that no such decision shall be based solely upon the deficiencies from the surveys identified in the administrative complaint. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency. Further, Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint and notice of intent to deny as modified herein. This agreement does not prohibit the Agency from taking action regarding Respondent's Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. il. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives. and 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 Respondent 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. Page 4 of 6 12, This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule $9G-9.070, Florida Administrative Code. 14. Respondent agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter. the Agency may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof, owed by Respondent to the Agency from any present or future funds owed to Respondent by the Agency, and that the Agency shall hold a len against present and future funds owed to Respondent 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. Yhis 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. 20. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. Page 5 of 6 Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 DATED: B21 “Lp of MLM Stuart F. Williams, General Counsel Florida Bar No. 670731 Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Flocida 32308 patep: S/o! i Thomas J. Walsh II, Senior Attomey Florida Bar No. 5366365 Agency for Health Care Administration 525 Mirror Lake Drive, Suite 330G St. Petersburg, Bef 33701 DATED: _ Theodore E. Mack, Esq. Florida Bar No. 200840 Powell & Mack 3700 Bellwoad Drive Tallahassee, FL 32303 Counsel for Respondent Pez DATED: aed Oak Tree Manor, Inc. DATED: 3a YW Page 6 of 6
The Issue The issues presented for decision herein are whether or not Petitioner's application for re-licensure as an Adult Congregate Living Facilities (ACLF), should be approved.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Ida Belle Hill Retirement Home and Ida Belle Hill Boarding Home are adult congregate living facilities (ACLF), located at 5218 and 5512 Mayo Street, Hollywood, Florida. Adult facilities are licensed by Respondent. The licenses on both facilities expired November 19, 1985, and by letter dated November 25, 1985, the applications for re-licensure were denied. Annual surveys were made of the facilities by Respondent's inspector for the Office of Licensure and Certification, Phillip Drabick. Drabick's first inspection of the facilities was on July 29, 1985, with a follow-up visit on November 5, 1985. The parties stipulated that Petitioner's application for re-licensure as an ACLF was timely made and accepted by the Respondent and that a primie facie case had been established by Petitioner as relates to the application for re-licensure. (TR 12). Based on that stipulation, Respondent has an aversion of proving that Petitioner is not entitled to re-licensure as an ACLF. The parties stipulated that both cases should be consolidated for hearing. Petitioner stipulated that the conditions and deficiencies noted by Respondent, Office of Licensure and Certification, on March 5, 1985, were extant and did exist at that time. (TR 54). Petitioner was made aware of all deficiencies at the times they were observed by Respondent. During those inspections, the following conditions were found and brought to Respondent's attention on both facilities as follows: The facility owner, Ida Belle Hill, served as representative payee and has not filed a surety bond with the Department (HRS) in an amount equal to twice the average monthly aggregate income of personal funds due residents. (TR 61-63, 75). The facility does not keep complete and accurate records of personal funds of residents. (TR 63, 64, 75 and 77). The facility does not maintain a current admissions and discharge record of all residents, including temporary emergency placement. (TR 35, 37 and 60). Up to date the other records that were not kept on file for residents who received supervision of self-administered medications. (TR 64, 65 and 78). Services delivered by third party contractors, such as doctors, dentists and other health care professionals are not documented and placed in each resident's medical records. (TR 65, 78). The facility does not maintain a record of personnel policies including employment policies and work assignments for each position. (TR 63- 66, 67 and 78). The facility does not maintain a written work schedule for employees including provision for relief staff and coverage for vacations, sick leave and other emergencies. (TR 66, 78). The facility does not maintain time sheets for employees. (TR 67, 79). The facility does not have one staff member within the facility at all times who has certification in an approved first aid course. (TR 66, 67, 68, 79 and 80). The facility does not have job descriptions for staff who are responsible for providing personal care to residents. (TR 69, 80). The facility does not maintain the required medical form for residents admitted from other state institutions such as South Florida State Hospital. (TR 69, 80). The facilities house residents that have not been examined by a licensed physician or licensed nurse practitioner within sixty days before admission or within thirty days following admissions. Additionally, the facility does not maintain a completed, signed health assessment for ACLF facilities and the resident's files for each resident. (TR 60, 61, 80 and 81). The facility does not maintain written policies, procedures for assisting residents in making appointments to appropriate medical, dental, nursing or mental health services as is necessary for the care of its residents and for providing all transportation to and from the centers which provide the provision of the required services. (TR 69, 70, 80 and 81). THE FOLLOWING DEFICIENCIES WERE FOUND TO EXIST AND WERE BROUGHT TO PETITIONER'S ATTENTION AS RELATES TO IDA BELLE HILL BOARDING HOME. The facility does not have food service policies and procedures for providing proper nutritional care for residents whether provided by the facility or a third party. (TR 70). Dietary allowances are not met by offering a variety of foods adapted to food habits, preference and physical abilities of residents and prepared by the use of standardized recipes. (TR 70, 71). The facility does not maintain an up to date diet manual, approved by HRS, to use as a standard reference in planning regular and therapeutic diets. (TR 71). Menus are not corrected as served and maintained on file for the required six months. (TR 71, 72). The facility does not maintain, at the premises, a one week supply of non-perishable food based on the number of weekly meals that the facility has contracted to serve. (TR 72).
Recommendation Based on the foregoing findings of fact and conclusions of law including the fact that the violations noted herein are numerous and continuing over an extended period of time, notwithstanding efforts by Respondent to gain compliance by Petitioner, finds that Respondent has not established compliance with Chapter 400, Part 2, Florida Statutes, respecting the entitlement to re- licensure as adult congregate living facilities. Based thereon, it is RECOMMENDED: That a Final Order be entered herein by the Department of Health and Rehabilitative Services, Office of Licensure and Certification, denying Petitioner's application for re-licensure as an adult congregate living facilities for Ida Belle Hill Boarding Home and Ida Belle Retirement Home situated at 5512 and 5218 Mayo Street, Hollywood, Florida, 33021. Recommended this 21st day of October, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1986.
The Issue Whether Respondent, Delta Health Group, Inc., d/b/a Longwood Health Care Center, violated Sections 400.215 and 435.05, Florida Statutes; and whether the violations warrant the imposition of a conditional licensure rating and $2,000 fine.
Findings Of Fact Based on stipulations, official recognitions, and oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the state agency charged with the licensing of nursing homes and the assignment of licensure status pursuant to Chapter 400, Florida Statutes. Petitioner evaluates nursing home facilities to determine their degree of compliance with established state rules as a basis for making the required licensure assignment. In addition, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federally mandated statutory requirements. These federally established requirements are applicable to Florida nursing homes pursuant to Florida Administrative Code Rule 59A-4.1288. Respondent is a licensed nursing home located at 1520 South Grant Street, Longwood, Florida. As authorized by Chapter 400, Florida Statutes, Petitioner surveyed Respondent to determine whether Respondent was in compliance with applicable state and federal laws and regulations. When Petitioner conducts a survey of a nursing home, it issues a survey report, commonly referred to by its form number, a "2567," or, when a state statute or rule is violated, a "3020," referring to the State of Florida form. The forms are identical in format with the exception of their respective form numbers. If deficiencies are noted in the "2567" ("3020"), they are identified by a "Tag" number which identifies the applicable regulatory violation. In addition, the survey report determines the level of deficiency of the regulatory standard believed to have been violated. As a result, the alleged deficient practice, the particular regulation violated, and the class of the deficiency, are cited in the "2567" or "3020" survey report. Petitioner conducted its annual recertification survey of Respondent, which was completed on October 24, 2002, and issued a 3020 survey report noting certain deficiencies involving state required background screening of employees. In an effort to protect residents of nursing homes who are often unable, physically and mentally, to protect themselves, the State of Florida requires that employers conduct statutorily mandated background screenings of prospective employees. For employees who have resided in Florida for five years prior to applying for employment a "Level 1" screening is required. For employees who have not resided in Florida for five years prior to applying for employment in addition to the "Level 1" screening, a "Level 2" screening is required. A "Level 1" screening includes, but is not limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement and may include local criminal records checks through local law enforcement agencies. A "Level 2" screening includes fingerprinting, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. Sections 435.03 and 435.04, Florida Statutes (2002), contain an extensive list of criminal offenses, which disqualify a prospective employee from nursing home employment. During the referenced survey, Petitioner examined five of Respondent's current employees' personnel files. This examination revealed that employment history checks had not been completed on two of the five employees checked. By statute, these employees should not have been hired prior to completion of the employment history checks. Respondent does not contest the determination that the employment history checks were not conducted. The survey report ("3020") notes "N620" as the "ID Prefix Tag"; the portion of the 3020 titled "Summary Statement of Deficiencies" contains Section 400.215, Florida Statutes, reprinted verbatim. The 3020 further notes that this deficiency is a "Pattern, Class III, 11/15/02." The date indicates the deadline for correction of the deficiency. Section 400.215, Florida Statutes, states, in part, that "facilities must have in their possession evidence that level 1 screening has been completed before allowing an employee to begin working . . ." Petitioner conducted a "follow-up" survey on December 12, 2002. During the "follow-up" survey, it was noted that Respondent was appropriately conducting employment history checks; however, it was also determined that Respondent had failed to timely request "Level 2" background screening on three of five employees due to its failure to timely submit fingerprinting cards to Petitioner. Subsections 435.05(1)(a) and (c), Florida Statutes, require that fingerprinting cards should be submitted to Petitioner within ten working days of an employee's hiring date. In the three instances cited, the fingerprinting cards were forwarded 37, 27 and 15 days after the employees were hired. Respondent does not dispute that the fingerprinting cards were submitted late. The parties have stipulated in the Joint Prehearing Stipulation filed October 1, 2003, that Respondent had forwarded all fingerprinting cards by December 5, 2002. Respondent urges that employment history checks are an exercise in futility. It is argued that modern-day employers will not advance negative information about a former employee. While this argument may have some practical merit, there may be instances where a former employer will provide information that will result in the denial of employment and protection of residents. A hiring employer may learn some information, not limited to evidence of a conviction or plea to a disqualifying offense, which may convince the employer not to hire an applicant. In addition, it is the wisdom of the Florida Legislature, not the employer that dictates this requirement of law. Respondent further argues that the delay in submitting the required fingerprinting cards did not result in a potential harm to residents because, in the three instances cited, the results of the Level 2 screening demonstrated that none of the involved employees had been convicted of a disqualifying offense. This "begs the question" of a timely-filed fingerprinting card revealing a disqualifying offense more quickly, resulting in the protection of residents. Were there no time requirement for submitting the information required for the "Level 2" screening, a dilatory employer could wait several months before submitting the required information, conceivably allowing an employee with a disqualifying criminal offense committed in another state to work for six months,1 exposing residents to potential harm the entire time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent violated Section 400.215, Florida Statutes (2002), by failing to comply with requirements regarding employee background screening and awarding Respondent a Conditional licensure status from October 24, 2002, through December 5, 2002. DONE AND ENTERED this 25th day of November, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2003.
