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 Count VII of the Administrative Complaint is voluntarily withdrawn.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 issue is whether Petitioner properly reduced the rating of Respondent's nursing home from Standard to Conditional.
Findings Of Fact Respondent owns and operates a nursing home in Naples. Petitioner conducts periodic surveys of the nursing home to determine whether the licensee should receive a Superior, Standard, or Conditional license rating. Following a periodic survey, Petitioner determined that three Class II deficiencies existed. A Class II deficiency poses "an immediate threat to the health, safety or security of the residents." Consequently, effective May 13, 1998, Petitioner issued a Conditional license. Immediately preceding this license, Respondent had a Standard license. Effective July 13, 1998, Petitioner issued Respondent a Standard license. This case involves only whether Petitioner properly reduced Respondent's license to Conditional for the two-month period starting May 13, 1998. The survey that started May 13, 1998, extended over three days. There is no charging document in this case. There is a revised survey report, which contains 17 findings under four tags. In its opening statement, Petitioner announced that it was proceeding under three tags: F 224, F 225, and F 353. During the hearing, Petitioner announced that it would offer no evidence under findings 2, 3, and 4 of Tag F 224. Petitioner did not present evidence under findings 1, 2, and 4 of Tag F 225, and Petitioner did not present any evidence under Tag F 353 that was not also under another tag. The tags may refer to citations in a manual of Petitioner. Under each tag noted in the survey report, Petitioner cites the relevant legal provision, a summary of the reasons why the legal requirement is unmet, and detailed findings in numbered paragraphs. Next to each finding, Respondent includes a correction plan. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(i)," Tag F 224 in the survey report states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. Tag F 224 in the survey report alleges that "this requirement" is not met because "the facility did not ensure that each resident received the care and services to prevent neglect for 2 (Residents #1 and #3) of 21 sampled residents and 3 residents interviewed." Paragraph 1 of the findings under Tag F 224 in the survey report alleges that staff were not ambulating Resident Number 1; her care plan and records omitted the recommendation of the physical therapist that staff ambulate Resident Number 1 to meals; and staff failed to timely assist her in requested transfers and thus left her with no choice but to urinate in her bed or chair. Resident Number 1 had undergone surgery for a hip fracture and received physical therapy to improve her balance, transfers, and gait. The physical therapist had discharged Resident Number 1 on April 30, 1998, with instructions to the nursing staff to walk her from her room to the dining room for each of her meals. The physical therapist trained the nursing staff, who were Certified Nursing Assistants, regarding ways to help Resident Number 1 ambulate safely. On two days, a volunteer took Resident Number 1 in a wheelchair from an activity on the second floor to the first- floor dining room for lunch. However, volunteers did not attempt to ambulate residents who had difficulty walking. One or more Certified Nursing Assistants walked Resident Number 1 on the days in question the distance between her room and the dining room. On at least one of the observed days, the Certified Nursing Assistant walked Resident Number 1 from the dining room, where the volunteer had left her, to her room, and then back to the dining room for lunch. Petitioner's nurse surveyor testified that the issue in Tag F 224 is whether Respondent implemented its policies prohibiting the neglect of residents. There is no credible evidence that Respondent neglected Resident Number 1, or that the care provided by staff following her hip surgery in any way contributed to a decline in the health or ability to ambulate of Resident Number 1. To the contrary, although Resident Number 1 could never regain her ability to walk without assistance, she did increase the distance that she could walk with assistance in the six weeks following the survey. There is no evidence of a failure of staff to respond promptly to requests by Resident Number 1 for assistance in toileting. Petitioner has failed to prove that, as to Resident Number 1, Respondent failed to implement its policies prohibiting neglect. Paragraph 2 of the findings under Tag F 224 in the survey report alleges that Resident Number 3 was admitted on March 25, 1998, and was coughing up formula on March 26 at 1:00 a.m. During the afternoon of March 27, Resident Number 3 allegedly had a temperature of 100.8 degrees. The next day, the temperature was allegedly 100.7 degrees. On the afternoon of March 29, Resident Number 3 had a moist, productive cough and a temperature of 102 degrees. A nurse administered Tylenol. Seven hours later, that evening, Resident Number 3 had a temperature of 103.8 degrees, which, after another administration of Tylenol, dropped to 101.9 degrees one hour later and then 99.1 degrees, although he was having trouble breathing. At 1:00 a.m. on March 30, Resident Number 3 allegedly suffered from uneven breathing, at times labored, and, by 6 a.m., his temperature was 101 degrees. Paragraph 2 alleges that staff did not notify the physician of Resident Number 3 of these temperatures and symptoms until 3:00 p.m. on March 30, at which time the physician of Resident Number 3 arrived and examined Resident Number 3; a chest x-ray revealed pneumonia. The facts are as alleged, except that the physician visited Resident Number 3 on the morning of March 30. There is no credible evidence that Respondent's staff cared for Resident Number 3 improperly or should have contacted his physician at an earlier point than the morning of March 30. Petitioner has failed to prove that, as to Resident Number 3, Respondent failed to implement its policies prohibiting neglect. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(ii)," Tag F 225 in the survey report states: The facility must not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and [must] report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry of licensing authorities. The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property[,] are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. Tag F 225 in the survey report alleges that "this requirement" is not met because the facility "did not thoroughly investigate injuries of unknown origin for 1 (Resident #14) of 21 residents sampled, 3 residents from group interview, 1 resident observed and 1 resident based on family interview." Paragraph 3 of the findings under Tag F 225 in the survey report alleges that the nurses' notes on Resident Number 14 revealed skin tears of unknown origin on November 17, 1997, and January 19, May 5, and May 10, 1998, and a bruised and swollen great and fourth toes of the right foot on February 11, 1998. The staff allegedly failed to investigate these incidents. Nurses' notes document four skin tears, as alleged, but not the bruised and swollen toes, to which Petitioner produced no admissible evidence. Respondent's policy is for anyone who sees an incident or injury to report it to a nurse, who documents the report, and forwards the information to the Director of Nursing, who is a Registered Nurse. The Director of Nursing investigates the matter and reports her findings to Respondent's Executive Director. The Director of Nursing investigated each incident of a tear of the skin of Resident Number 14. She determined that Resident Number 14 had fragile skin, and her wheelchair sometimes injured her feet. She reasonably concluded each time that there was no indication of abuse or neglect. Petitioner has failed to prove that Respondent did not investigate possible incidents of abuse or neglect concerning Resident Number 14. Citing "[42 Code of Federal Regulations Section] 483.30(a)(1) and (2)," Tag F 353 in the survey report states: The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans: Except when waived under paragraph (c) of this section, licensed nurses; and other nursing personnel. Except when waived under paragraph (c) of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. Tag F 353 alleges that "this requirement" is not met because the facility did not provide sufficient nursing staff to meet the needs of the residents. There are three paragraphs of findings under Tag F 353 in the survey report. None identifies a resident by number. Paragraph 1 states that family members witnessed two Certified Nursing Assistants, and presumably no one else, serving 33 residents, whose unmet needs resulted in urination in incontinence for some. Paragraph 1 states that several residents complained that staff do not timely answer call lights due to short-staffing. Paragraph 2 alleges that one resident complained that staff replied to his requests for assistance in getting out of bed by saying that they would "do it when they have the time" and that they "can't be bothered." Paragraph 2 alleges that one resident was not ambulated three times daily to her meal. Paragraph 3 alleges that several residents complained of untimely assistance resulting in incontinence and "rough handling" due to untrained or insufficient staff. At all times, Respondent maintained the minimum required staff at the facility. If this tag is merely a reallegation of the ambulatory issue regarding Resident Number 1, Petitioner has failed to prove a deficiency in her care. If Petitioner intended to raise other issues with this tag, there is no evidence in support of such allegations. Petitioner has failed to prove that Respondent failed to maintain sufficient nursing or other staff.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration reissue the subject license as Standard. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of April, 1999. COPIES FURNISHED: Karel Baarslag, Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33901-0127 R. David Thomas, Jr. Qualified Representative Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229
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.
