Findings Of Fact In March 1975, Respondent was employed as a registered nurse at the Sarasota Memorial Hospital, Sarasota, Florida. On March 26, 1975, he was performing duties as "charge" nurse on the 3 P.M. to 11 P.M. shift in the Orthopedic Clinic. At approximately 4 P.M., Muriel Johnson, R.N., Clinical Supervisor, while making her initial rounds for the shift, talked to two of the patients who indicated they felt no need for medication and had not received any. She then observed that the patients' medication and treatment sheets indicated that Respondent had given them Percodan, a narcotic drug, that afternoon. She then checked Respondent's nurses notes and the federal narcotic control sheet used to keep track of narcotics on the floor, and found no entries for the patients in question on either document. Both of these documents should have reflected the administration of medication to the patients at the time it was given. She proceeded to report the apparent discrepancy to her supervisor. (Testimony of Johnson) The Sarasota police was notified and two police officers arrived at the hospital about 11:15 P.M.. They were informed by a nurse that Respondent was suspected of checking out narcotics, but not issuing them to patients. Based on the foregoing information, they followed Respondent's automobile as he left the hospital that evening and stopped it about a quarter of a mile south of the hospital on US highway 41. Respondent's wife was driving the automobile at the time. Respondent was placed under arrest and, upon a search of his person, various drugs in hospital containers or packages were discovered, including seven Percodan tablets, six Synalgos DC capsules, and two Empirin with Codeine tablets. Percodan is a controlled Schedule 1 drug used to relieve pain and Synalgos DC is a Schedule 3 drug. Respondent was cooperative at the time of his arrest. He was charged with three counts of illegal possession of drugs and, on September 12, 1975, in the Sarasota County Circuit Court, Case No. 75-229-CF-A- 01, upon a plea of Nolo Contendere, adjudication of guilt was withheld and Respondent was placed on probation for two years, fined $1,000.00, and ordered to undergo psychiatric counselling. (Testimony of Hogle, Peterson, Perry, Petitioner's Exhibit 1,2, Composite Exhibit 3). On March 12, 1975, at the Sarasota Memorial Hospital, Respondent signed for 1 capsule of Chloral Hydrate, 300 mg. for a patient named Lena J. Herman. He indicated on the narcotic and barbituate administration record number 126951 that the medication was refused and destroyed. Hospital policy as set forth in written procedures provides that destruction of narcotics or barbituates must be witnessed and countersigned on the narcotics and barbituate administration record by another nurse. No such witnessing signature was shown on number 126951. (Testimony of Kuebler, Petitioner's Composite Exhibit 5). On March 13, 1975, at 8:00 P.M., at the Sarasota Memorial Hospital, Respondent signed out 1 tab of Demerol, 50 mg. for a patient named Herman on narcotic and barbituate administration record number 128232, and on the same date and the same hour for the same patient signed out for another tab of Demerol, 50 mg. on narcotic and barbituate administration record number 128097. The medication record and nursing notes for that patient on the date in question show that only one of the tablets was administered by Respondent to the patient subsequent to signing it out. (Testimony of Kuebler, Petitioner's Composite Exhibits 4 & 5). Respondent was an excellent nurse who had been employed at the Sarasota Memorial Hospital for over one year. He was dependable and took good care of his patients. (Testimony of Johnson, Kuebler, Bowden, Respondent's Composite Exhibit 1). Respondent has received comprehensive alcoholism counseling and treatment in state facilities and at the First Step of Sarasota, a counseling and treatment center. He recognizes his problem with alcohol and has managed to keep it under control while living at First Step with the assistance of the drug Antabuse. He has helped at First Step with other patients and the Executive Director there would like to hire him as a nurse when an opening occurs. He has been a cooperative and cheerful probationer in the opinion of his probation officer. (Testimony of Bowden, Ves'sells, Clark).
Recommendation That the license of Faris E. Moyer to practice as a registered professional nurse be revoked for unprofessional conduct, in violation of Section 464.21(1)(b), Florida Statutes. DONE and ENTERED this 12th day of August, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1330 American Heritage Building Jacksonville, Florida 32202 Robert J. Elkins, Esquire 2187 Siesta Drive Post Office Box 15425 Sarasota, Florida 33579
The Issue The ultimate issue is whether the application of Petitioner, University Medical Park, for a certificate of need to construct a 130-bed acute care hospital in northern Hillsborough County, Florida should be approved. The factual issues are whether a need exists for the proposed facility under the Department's need rule and, if not, are there any special circumstances which would demonstrate the reasonableness and appropriateness of the application notwithstanding lack of need. The petitioner, while not agreeing with the methodology, conceded that under the DHRS rule as applied there is no need because there is an excess of acute care beds projected for 1989, the applicable planning horizon. The only real factual issue is whether there are any special circumstances which warrant issuance of a CON. The parties filed post-hearing findings of fact and conclusions of law by March 18, 1985, which were read and considered. Many of those proposals are incorporated in the following findings. As indicated some were irrelevant, however, those not included on pertinent issues were rejected because the more credible evidence precluded the proposed finding. Having heard the testimony and carefully considered the Proposed Findings of Fact, there is no evidence which would demonstrate the reasonableness and appropriateness of the application. It is recommended that the application be denied.
Findings Of Fact General Petitioner is a limited partnership composed almost entirely of physicians, including obstetricians/gynecologists (OB/GYN) and specialists providing ancillary care, who practice in the metropolitan Tampa area. (Tr. Vol. 1, pp. 103-104). Petitioner's managing general partner is Dr. Robert Withers, a doctor specializing in OB/GYN who has practiced in Hillsborough County for over thirty years. (Tr. Vol. 1, pp. 24- 26, 28-29.) Dr. Withers was a prime moving force in the founding, planning and development of University Community Hospital and Women's Hospital. (Tr. Vo1. 1, pp. 26-28, 73; Vol. 4, pp. 547-548.) Petitioner seeks to construct in DHRS District VI a specialty "women's" hospital providing obstetrical and gynecological services at the corner of 30th Street and Fletcher Avenue in northern Hillsborough County and having 130 acute care beds. 1/ (Tr. Vol. 1, pp. 34, 74-75, Vol. 5, pp. 678-679, Northside Ex.-1, pp. 1-2, Ex.-4A.) The proposed hospital is to have 60 obstetrical, 66 gynecological and 4 intensive care beds. (Tr. Vol. 8, P. 1297, Northside Ex.-1 Table 17, Ex.-B.) DHRS District VI is composed of Hardy, Highlands, Hillsborough, Manatee and Polk counties. Each county is designated a subdistrict by the Local Health Council of District VI. Pasco County, immediately north of Hillsborough, is located in DHRS District V and is divided into two subdistricts, east Pasco and west Pasco. If built, Northside would be located in the immediate vicinity of University Community Hospital (UCH) in Tampa, Hillsborough County, Florida. Less than 5 percent of the total surgical procedures at UCH are gynecologically related, and little or no nonsurgical gynecological procedures arc performed there. (Tr. Vol. 4, p. 550.) There is no obstetrical practice at UCH, although it has the capacity to handle obstetric emergencies. The primary existing providers of obstetrical services to the metropolitan Tampa area are Tampa General Hospital (TGH) and Women's Hospital (Women's). (Tr. Vol. 1, p. 79, Northside Ex.-4, Tr. Vol. 7, pp. 1074-1075.) TGH is a large public hospital located on Davis Islands near downtown Tampa. (Tr. Vol. 1, pp. 47-48, Vol. 8, pp. 1356, 1358.) TGH currently has a 35 bed obstetrical unit, but is currently expanding to 70 beds as part of a major renovation and expansion program scheduled for completion in late 1985. (Tr. Vol. 7, pp. 1049, 1095, Vol. 8, pp. 1367-1368, Vol. 10, P. 1674, Northside Ex.- 2, P. 3.) In recent years, the overwhelming majority of Tampa General's admissions in obstetrics at TGH have been indigent patients. (Tr. Vol. 1, P. 61, Vol. 8, pp. 1375- 1379; Vol. 9, P. 1451; TGH Ex.-3.) Tampa General's internal records reflect that it had approximately 2,100 patient days of gynecological care compared with over 38,000 patient days in combined obstetrical care during a recent eleven month period. (TGH Ex.-3..) Women's is a 192 bed "specialty" hospital located in the west central portion of the City of Tampa near Tampa Stadium. (Tr. Vol. 1, pp. 63-64, 66-67; Vol. 10 P. 1564; Northside Ex.-4.) Women's Hospital serves primarily private-pay female patients. (Vol. 1, pp. 79, 88-89; Vol. 6, pp. 892-893.) Humana Brandon Hospital, which has a 16 bed obstetrics unit, and South Florida Baptist Hospital in Plant City, which has 12 obstetric beds, served eastern Hillsborough County. (Tr. Vol. 7, P. 1075; Northside Ex.-2, P. 3; Northside Ex.-4 and Tr. Vol. 1, P. 79; Northside Ex.-4.) There are two hospitals in eastern Pasco County, which is in DHRS District V. Humana Hospital, Pasco and East Pasco Medical Center, each of which has a six bed obstetric unit. Both hospitals are currently located in Dade City, but the East Pasco Medical Center will soon move to Zephyrhills and expand its obstetrics unit to nine beds. (Tr. Vol. 1, pp. 108- 109; Tr. Vol. 7, P. 1075; Vol. 8, pp. 1278-1281; Northside Ex.-4.) There are no hospitals in central Pasco County, DHRS District V. Residents of that area currently travel south to greater Tampa, or, to a lesser extent, go to Dade City for their medical services. (Tr. Vol. 2, pp. 266-267, 271-272; Vol. 7, p. 1038.) Bed Need There are currently 6,564 existing and CON approved acute care beds in DHRS District VI, compared with an overall bed need of 5,718 acute care beds. An excess of 846 beds exist in District VI in 1989, the year which is the planning horizon use by DHRS in determining bed need applicable to this application. (Tr. Vol. 7, pp. 1046-1047, 1163, 1165-66; DHRS Ex.-1.) There is a net need for five acute care beds in DHRS District V according to the Department's methodology. (Tr. Yolk. 7, pp. 1066, 1165; DHRS Ex.-1.) The figures for District VI include Carrollwood Community Hospital which is an osteopathic facility which does not provide obstetrical services. (Tr. Vol. 1, P. 158; Vol. 7, p. 1138; Vol. 8, P. 1291.) However, these osteopathic beds are considered as meeting the total bed need when computing a11 opathic bed need. DHRS has not formally adopted the subdistrict designations of allocations as part of its rules. (Tr. Vol. 7, pp. 1017-1017, 1019; Vol. 8, pp. 1176, 1187.) Consideration of the adoption of subdistricts by the Local Health Council is irrelevant to this application. 2/ Areas of Consideration in Addition to Bed Need Availability Availability is deemed the number of beds available. As set forth above, there is an excess of beds. (Nelson, Tr. Vol. VII, P. 1192.) Tampa General Hospital and Humana Women's Hospital offer all of the OB related services which UMP proposes to offer in its application. These and a number of other hospitals to include UCH, offer all of the GYN related services proposed by Northside. University Community Hospital is located 300 yards away from the proposed site of Northside. UCH is fully equipped to perform virtually any kind of GYN/OB procedure. Humana and UCH take indigent patients only on an emergency basis, as would the proposed facility. GYN/OB services are accessible to all residents of Hillsborough County regardless of their ability to pay for such services at TGH. (Williams, Tr. Vol. IX, P. 1469; Baehr, Tr. Vol. X, P. 1596; Splitstone, Tr. Vol. IV, P. 582; Hyatt, TGH Exhibit 19, P. 21.) Utilization Utilization is impacted by the number of available beds and the number of days patients stay in the hospital. According to the most recent Local Health Council hospital utilization statistics, the acute care occupancy rate for 14 acute care hospitals in Hillsborough County for the most recent six months was 65 percent. This occupancy rate is based on licensed beds and does not include CON approved beds which are not yet on line. This occupancy rate is substantially below the optimal occupancies determined by DHRS in the Rule. (DHRS Exhibit 4; Contis, Tr. Vol. VII, P. 1069.) Utilization of obstetric beds is higher than general acute care beds; however, the rules do not differentiate between general and obstetric beds. 3/ Five Hillsborough County hospitals, Humana Women's, St. Joseph's, Tampa General, Humana Brandon, and South Florida Baptist, offer obstetric services. The most recent Local Health Council utilization reports indicate that overall OB occupancy for these facilities was 82 percent for the past 6 months. However, these computations do not include the 35 C0N-approved beds which will soon be available at Tampa General Hospital. (DHRS Exhibit 4). There will be a substantial excess of acute care beds to include OB beds in Hillsborough County for the foreseeable future. (Baehr, Tr.w Vol. X, pp. 1568, 1594, 1597.) The substantial excess of beds projected will result in lower utilization. In addition to excess beds, utilization is lowered by shorter hospital stays by patients. The nationwide average length of stay has been reduced by almost two days for Medicare patients and one day for all other patients due to a variety of contributing circumstances. (Nelson, Tr. Vol. VII, P. 1192; Contis, Tr. Vol. VII, P. 1102; Baehr, Tr. Vol. X, pp. 1583-84; etc.) This dramatic decline in length of hospital stay is the result of many influences, the most prominent among which are: (1) a change in Medicare reimbursement to a system which rewards prompt discharges of patients and penalizes overutilization ("DGRs"), (2) the adaptation by private payers (insurance companies, etc.) of Medicare type reimbursement, (3) the growing availability and acceptance of alternatives to hospitalization such as ambulatory surgical centers, labor/delivery/recovery suites, etc. and (4) the growing popularity of health care insurance/delivery mechanisms such as health maintenance organizations ("HMOs"), preferred provider organizations ("PPOs"), and similar entities which offer direct or indirect financial incentives for avoiding or reducing hospital utilization. The trend toward declining hospital utilization will continue. (Nelson, Tr. Vol. VII, pp. 1192-98; Baehr, Tr. Vol. X, pp. 1584-86; etc.) There has been a significant and progressive decrease in hospital stays for obstetrics over the last five years. During this time, a typical average length of stay has been reduced from three days to two and, in some instances, one day. In addition, there is a growing trend towards facilities (such as LDRs) which provide obstetrics on virtually an outpatient basis. (Williams, Tr. Vol. IX, P. 1456; Hyatt, Tr. Vol. IV, P. 644.) The average length of stay for GYN procedures is also decreasing. In addition, high percentage of GYN procedures are now being performed on an outpatient, as opposed to inpatient, basis. (Hyatt, Tr. Vol. IV, P. 644, etc.) The reduction in hospital stays and excess of acute care beds will lower utilization of acute care hospitals, including their OB components, enough to offset the projected population growth in Hillsborough County. The hospitals in District VI will not achieve the optimal occupancy rates for acute care beds or OB beds in particular by 1989. The 130 additional beds proposed by UMP would lower utilization further. (Paragraphs 7, 14, and 18 above; DHRS Exhibit 1, Humana Exhibit 1.) Geographic Accessibility Ninety percent of the population of Hillsborough County is within 30 minutes of an acute care hospital offering, at least, OB emergency services. TGH 20, overlay 6, shows that essentially all persons living in Hillsborough County are within 30 minutes normal driving time not only to an existing, acute care hospital, but a hospital offering OB services. Petitioner's service area is alleged to include central Pasco County. Although Pasco County is in District V, to the extent the proposed facility might serve central Pasco County, from a planning standpoint it is preferable to have that population in central Paso served by expansion of facilities closer to them. Hospitals in Tampa will become increasingly less accessible with increases in traffic volume over the years. The proposed location of the UMP hospital is across the street from an existing acute care hospital, University Community Hospital ("UCH"). (Splitstone, Tr. Vol. IV, P. 542.) Geographic accessibility is the same to the proposed UMP hospital and UCH. (Smith, Tr. Vol. III, P. 350; Wentzel, Tr. Vol. IV, p. 486; Peters, Tr. Vol. IX, P. 1532.) UCH provides gynecological services but does not provide obstetrical services. However, UCH is capable of delivering babies in emergencies. (Splitstone, Tr. Vol. IV, p. 563.) The gynecological services and OB capabilities at UCH are located at essentially the same location as Northside's proposed site. Geographic accessibility of OB/GYN services is not enhanced by UMP's proposed 66 medical-surgical beds. The accessibility of acute care beds, which under the rule are all that is considered, is essentially the same for UCH as for the proposed facility. As to geographic accessibility, the residents of Hillsborough and Pasco Counties now have reasonable access to acute care services, including OB services. The UMP project would not increase accessibility to these services by any significant decrease. C. Economic Accessibility Petitioner offered no competent, credible evidence that it would expand services to underserved portions of the community. Demographer Smith did not study income levels or socioeconomic data for the UMP service area. (Smith, TR. Vol. III, pp. 388, 389.) However, Mr. Margolis testified that 24 percent of Tampa General's OB patients, at least 90 percent of who are indigents, came from the UMP service area. (Margolis, Tr. Vol. X, P. 1695.) The patients proposed to be served at the Northside Hospital are not different than those already served in the community. (Withers, Tr. Vol. II, P. 344.) As a result, Northside Hospital would not increase the number of underserved patients. Availability of Health Care Alternative An increasing number of GYN procedures are being performed by hospitals on an outpatient basis and in freestanding ambulatory-surgical centers. An ambulatory-surgical center is already in operation at a location which is near the proposed UMP site. In fact, Dr. Hyatt, a UMP general partner, currently performs GYN procedures at that surgical center. (Withers, Tr. Vol. I, P. 150; Hyatt, Tr. Vol. IV, pp. 644, 646. Ambulatory surgical centers, birthing centers and similar alternative delivery systems offer alternatives to the proposed facility. Existing hospitals are moving to supply such alternatives which, with the excess beds and lower utilization, arc more than adequate to preclude the need for the UMP proposal. (Nelson, Tr. Vol. VII, P. 1204, 1205, 1206; Williams, Tr. Vol. IX, pp. 1453, 1469; Contis, Tr. Vol. VII, pp. 1154; Contis, Tr. Vol. VII, pp. 1151, 1154.) Need for Special Equipment & Services DHRS does not consider obstetrics or gynecology to be "special services" for purposes of Section 381.494(6)(c)6, Florida Statutes. In addition, the services proposed by UMP are already available in Hillsborough and Pasco Counties. (Nelson, Tr. Vol. VII, pp. 1162, 1210.) Need for Research & Educational Facilities USF currently uses Tampa General as a training facility for its OB residents. TCH offered evidence that the new OB facilities being constructed at Tampa General were designed with assistance from USF and were funded by the Florida Legislature, in part, as an educational facility. (Powers, Tr. Vol. IX, P. 1391; Williams, Tr. Vol. IX, pp. 1453-1455.) The educational objectives of USF for OB residents at Tampa General are undermined by a disproportionately high indigent load. Residents need a cross section of patients. The UMP project will further detract from a well rounded OB residency program at Tampa General by causing Tampa General's OB Patient mix to remain unbalanced. (Williams, Tr. Vol. IX, P. 1458; Margolis, Tr. Vol. X, P. 1695.) UMP offered no evidence of arrangements to further medical research or educational needs in the community. (Nelson, Tr. Vol. VII, P. 1213. UMP's proposed facility will not contribute to research and education in District VI. Availability of Resources Management UMP will not manage its hospital. It has not secured a management contract nor entered into any type of arrangement to insure that its proposed facility will be managed by knowledgeable and competent personnel. (Withers, Tr. Vol. I, p. 142.) However, there is no alleged or demonstrated shortage of management personnel available. Availability of Funds For Capital and Operating Expenditures The matter of capital funding was a "de novo issue," i.e., evidence was presented which was in addition to different from its application. In its application, Northside stated that its project will be funded through 100 percent debt. Its principal general partner, Dr. Withers, states that this "figure is not correct." However, neither Dr. Withers nor any other Northside witness ever identified the percentage of the project, if any, which is to be funded through equity contributions except the property upon which it would be located. (UMP Exhibit 1, p. 26; Withers, Tr. Vol. I, P. 134.) The UMP application contained a letter from Landmark Bank of Tampa which indicates an interest on the part of that institution in providing funding to Northside in the event that its application is approved. This one and one half year year old letter falls short of a binding commitment on the part of Landmark Bank to lend UMP the necessary funds to complete and operate its project and is stale. Dr. Withers admitted that Northside had no firm commitment as of the date of the hearing to finance its facility, or any commitment to provide 1196 financing as stated in its application. (UMP Exhibit I/Exhibit Dr. Withers, Tr. Vol. I, P. 138.) Contribution to Education No evidence was introduced to support the assertion in the application of teaching research interaction between UMP and USF. USF presented evidence that no such interaction would occur. (Tr. Vol. IX, P. 1329.) The duplication of services and competition for patients and staff created by UMP's facility would adversely impact the health professional training programs of USF, the state's primary representative of health professional training programs in District VI. (Tr. Vol. IX, pp. 1314-19; 1322-24; 1331-1336.) Financial Feasibility The pro forma statement of income and expenses for the first two years of operation (1987 and 1988) contained in the UMP application projects a small operating loss during the first year and a substantial profit by the end of the second year. These pro formas are predicated on the assumption that the facility will achieve a utilization rate of 61 percent in Year 1 and 78 percent in its second year. To achieve these projected utilization levels, Northside would have to capture a market share of 75-80 percent of all OB patient days and over 75% of all GYN patient days generated by females in its service area. (UMP, Exhibit 1; Withers, Tr. Vol. I, P. 145, Dacus; Tr. Vol. V, P. 750-755.) These projected market shares and resulting utilization levels are very optimistic. It is unlikely that Northside could achieve these market shares simply by making its services available to the public. More reasonable utilization assumptions for purposes of projecting financial feasibility would be 40-50 percent during the first year and 65 percent in the second year. (Margolis, Tr. Vol. X, P. 1700; Baehr, Tr. Vol. X, pp. 1578, 1579, 1601.) UMP omitted the cost of the land on which its facility is to be constructed from its total project cost and thus understates the income necessary to sustain its project. Dr. Withers stated the purchase price of this land was approximately $1.5 million and it has a current market value in excess of $5 million. (Withers, Tr. Vol. I, pp. 139, 140.) Dr. Withers admitted that the purchase price of the land would be included in formulating patient charges. As a matter of DHRS interpretation, the cost of land should be included as part of the capital cost of the project even if donated or leased and, as such, should be added into the pro formas. UMP's financial expert, Barbara Turner, testified that she would normally include land costs in determining financial feasibility of a project, otherwise total project costs would be understated (Withers, Tr. Vol. I, P. 141; Nelson, Tr. Vol. VII, pp. 1215, 1216; Turner, Tr. Vol. X, P. 1714.) In addition, the pro formas failed to include any amount for management expenses associated with the new facility. Dr. Withers admitted UMP does not intend to manage Northside and he anticipates that the management fee would be considerably higher than the $75,000 in administrator salaries included in the application. (Withers, Tr. Vol. I, pp. 143, 144.) Barbara Turner, UMP's financial expert, conceded that the reasonableness of the percent UMP pro formas is predicated on the reasonableness of its projected market share and concomitant utilization assumptions. These projections are rejected as being inconsistent with evidence presented by more credible witnesses. The UMP project, as stated in its application or as presented at hearing, is not financially feasible on the assumption Petitioner projected. VIII. Impact on Existing Facilities Approval of the UMP application would result in a harmful impact on the costs of providing OB/GYN services at existing facilities. The new facility would be utilized by patients who would otherwise utilize existing facilities, hospitals would be serving fewer patients than they are now. This would necessarily increase capital and operating costs on a per patient basis which, in turn, would necessitate increases in patient charges. (Nelson, Tr. Vol. VII, pp. 1217-1219; Baehr, Tr. Vol. X, P. 1587.) Existing facilities are operating below optimal occupancy levels. See DHRS Exhibit 4. The Northside project would have an adverse financial impact on Humana, Tampa General Hospital, and other facilities regardless of whether Northside actually makes a profit. See next subheading below. The Northside project would draw away a substantial number of potential private-pay patients from TGH. Residents of the proposed Northside service area constitute approximately 24 percent of the total number of OB patients served by TGH. The Northside project poses a threat to TGH's plans to increase its non- indigent OB patient mix which is the key to its plans to provide a quality, competitive OB service to the residents of Hillsborough County. (Nelson, Tr. Vol. VIII, P. 1225; Margolis, Tr. Vol. X, P. 1695.) Impact Upon Costs and Competition Competition via a new entrant in a health care market can be good or bad in terms of both the costs and the quality of care rendered, depending on the existing availability of competition in that market at the time. Competition has a positive effect when the market is not being adequately or efficiently served. In a situation where adequate and efficient service exists, competition can have an adverse impact on costs and on quality because a new facility is simply adding expense to the system without a concomitant benefit. (Baehr, Tr. Vol. X, p. 1650.) Competition among hospitals in Hillsborough County is now "intense and accelerating." (Splitstone, Tr. Vol. IV, p. 558.) Tampa General is at a competitive disadvantage because of its indigent case load and its inability to offer equity interests to physicians in its hospital. (Blair, Tr. Vol. VI, pp. 945, 947-948); Powers, Tr. Vol. IX, P. 1405.) Tampa General Hospital is intensifying its marketing effort, a physician office building under construction now at Tampa General is an illustration of Tampa General's effort to compete for private physicians and patients. (Powers, Tr. Vol. IX, pp. 1405-1406.) The whole thrust of Tampa General's construction program is to increase its ability to compete for physicians. (Nelson, Tr. Vol. VII, P. 1224; Powers, Tr. Vol. IX, p. 1442.) The Tampa General construction will create new competition for physicians and patients. (Contis, Tr. Vol. VII, p. 1099.) Patients go to hospitals where their doctors practice, therefore, hospitals generally compete for physicians. (Splitstone, Tr. Vol. IV, P. 563; Blair, Tr. Vol. VI, pp. 898, 928.) Because many of the UMP partners are obstetricians who plan to use Northside exclusively, approval of the Northside project would lessen competition. (Popp, TGH Exhibit 18, P. 11.) It is feasible for Tampa General to attract more private pay OB patients. (Williams, Tr. Vol. IX, pp. 1460- 1461.) At its recently opened rehabilitation center, Tampa General has attracted more private pay patients. (Powers, Tr. Vol. IX, pp. 1393-1396.) USF OB residents at Tampa General are planning to practice at Tampa General. (Williams, Tr. Vol. IX, pp. 1460-1461.) The state-of-the-art labor, delivery, recovery room to be used at Tampa General will be an attractive alternative to OB patients. (Williams, Tr. Vol. IX, pp. 1460- 1461); Popp, TGH Exhibit 18, p.26) IX. Capital Expenditure Proposals The proposed Northside hospital will not offer any service not now available in Tampa. (Hyatt, TGH Exhibit 19, p. 21).
Recommendation Petitioner having failed to prove the need for additional acute care beds to include OB beds or some special circumstance which would warrant approval of the proposed project, it is recommended that its application for a CON be DENIED. DONE and ORDERED this 25th day of June, 1985, in Tallahassee, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1985.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 2{, U, day of - J lJ_h (2 ---' 2014, m Tallahassee, Florida. ELIZ RETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 BYLAW. WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW 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. Copies furnished to: Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32303 (U.S. Mail) CERTIFICATE OF SERVICE == ' I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to ------==-- the above named addressees by U.S. Mail on this th f 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
Findings Of Fact On the basis of the stipulation of counsel, respondent's testimony, and certain records stipulated into evidence, it was established that respondent began injecting herself with Demerol on December 26, 1976, while she was working as a registered nurse at Lake Seminole Hospital in the intensive care ward. Between December 26, 1976, and January 4, 1977, respondent gave herself intravenous injections of Demerol, while at work, on eight to ten occasions. On some, but not all, of these occasions, she used medicine for herself that had been entrusted to her for administration to patients in her care, in order to relieve their suffering. Before this matter was discovered, in January of this year, respondent did competent work as a registered nurse and was well-regarded by her supervisors in the various hospitals in which she has been employed. She has also worked as a registered nurse since, without incident.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's license as a registered nurse. DONE and ENTERED this 19th day of September, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Joseph S. Dumbacher, Esquire Post Office Box 8215 Maderia Beach, Florida
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the day of &kvacy , 2010, in Tallahassee, Florida. 1 Filed February 26, 2010 3:40 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF ARCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW 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. Copies furnished to: David W. Nam, Esquire Agency for Health Care Administration (Interoffice Mail) Joanne B. Erde, P.A. Duane Morris LLP 200 South Biscayne Boulevard Suite 3400 Miami, Florida 33131 (U.S. Mail) Donna Holshouser Stinson Broad and Cassel 215 South Monroe Street, Suite 400 P.O. Drawer 11300 Tallahassee, Florida 32302 (U.S. Mail) Bureau of Medicaid Program Analysis Attn: Michele Hudson, Bureau Chief CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail or electronic transmission on this the f 7,2010. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 : '
The Issue Whether, as set forth in the Respondent's letters dated April 28, 1997, and May 19, 1997, health care services provided by the Petitioner to specified Medicaid recipients, for which services the Petitioner was reimbursed under the Medicaid Program, were not medically necessary and, therefore, resulted in overpayments to the Petitioner; and, if so, the amount which the Respondent is entitled to recoup from the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of these proceedings, the following findings of fact are made: The Respondent, the Agency for Health Care Administration, is the state agency responsible for administering Florida's Medicaid Program, which includes recovery of payments made for services which are retrospectively determined to be medically unnecessary. Section 409.913, Florida Statutes. The Petitioner, Indian River Memorial Hospital, Inc., is an acute care facility that has contracted with the Agency to provide health care goods and services to Medicaid recipients. Indian River Memorial meets all statutory requirements for a Medicaid provider. At the times material to these proceedings, the Keystone Peer Review Organization was under contract with the Agency to conduct retrospective reviews of the medical records and other information related to health care goods and services provided to Medicaid recipients and to determine whether the goods and services qualified for reimbursement under the Medicaid Program. The amount of money the Agency seeks to recoup from Indian River Memorial is based on the results of KePRO's retrospective review of the medical necessity for acute inpatient care for Medicaid recipients admitted for psychiatric treatment to Indian River Memorial in 1992, 1993, and 1994. The process used for retrospective reviews by KePRO consisted of four steps.3 The review process was initiated when the Agency submitted a list of Medicaid cases to KePRO for review. At the times material to these proceedings, the Agency submitted all of the Medicaid cases involving inpatient psychiatric services for peer review, and KePRO was the only peer-review organization authorized to review psychiatric services. The medical records were also sent to KePRO, which employed registered nurses to review the records to determine whether the admission and the number of days of hospitalization for each recipient were justified by the relevant criteria set forth in the Florida Medicaid Criteria Handbook. In the Medicaid cases at issue herein, the relevant criteria were those adult and pediatric psychiatric criteria for intensity of service, severity of illness, and discharge. If the KePRO nurse found that the medical records established that the applicable criteria were met, KePRO approved the payment which had been made for the services. If the KePRO nurse found that the medical records did not support the applicable criteria, the nurse referred the case for further review to a physician licensed in Florida and acting in the capacity of an independent contractor to KePRO. The identities of these physicians were confidential and were not disclosed even to the Agency. The physician who first reviewed a Medicaid case was not required to be a specialist in the type of medicine presented in the case even though the physician was expected to evaluate the medical necessity of the services in light of the requirements of the applicable Medicaid criteria, his or her own clinical judgment, and any other factors deemed relevant. The fact that one of the applicable Medicaid criteria was not satisfied was not dispositive of the question of medical necessity for the services provided. If the physician questioned the medical necessity for some or all of the services provided to a Medicaid recipient, a letter was sent to the provider identifying the case as a pending denial and giving the provider twenty days in which to provide additional information to support the medical necessity for the services. If additional information was submitted, the case was sent to a second physician, who reviewed the additional information and determined whether the preliminary decision of the first physician should be upheld, modified, or reversed. If the second physician upheld the decision, an initial denial letter was sent by KePRO to the provider advising that it was not entitled to reimbursement under the Medicaid Program for the specified services provided to the Medicaid recipient. The initial denial letters were form letters which were modified as needed and included, among other things, a brief description of the basis for the denial, the services for which reimbursement was denied, and notification of the provider's right to request that KePRO reconsider its decision. If the provider requested reconsideration, KePRO scheduled a "reconsideration" and notified the provider that it could submit additional information in the form of testimony and/or documentation. The physician reviewing the case on reconsideration could not be one of the physicians who had previously reviewed the case and had to be board-certified in the relevant medical specialty. During reconsideration, the physician was expected to review the medical records and any additional information that had been submitted; he or she then determined whether the initial decision should be upheld, modified, or reversed. KePRO prepared a letter that notified the provider of the decision on reconsideration and included a brief explanation of the basis for the decision. The reconsideration letter was a form letter that was modified to include information specific to the case under review. The explanation for the decision on reconsideration was prepared by a nurse, who interpreted and summarized the notes of the reconsideration review which had been prepared by the reviewing physician. KePRO initial denial letters and reconsideration letters were signed by William L. Moore, M.D., KePRO's medical director from 1993 through 1996. Dr. Moore is board-certified in family practice and quality assurance and holds a Florida license to practice medicine. Dr. Moore was not involved in the preparation of the letters, and he did not read the medical records of any of the Medicaid recipients except when necessary for purposes of quality control.4 The initial and reconsideration letters were sent to the provider, and copies of the letters were also sent to the Agency. If the provider did not submit repayment to the Agency based on the KePRO letters, the Agency prepared and sent a letter advising the provider that it must repay the Agency for reimbursements it had received under the Medicaid Program for services which KePRO had denied. The letter also advised the provider of its right to request an administrative hearing to be conducted pursuant to Chapter 120, Florida Statutes. Following a retrospective review, KePRO sent initial denial letters to Indian River Memorial and the attending physicians advising them that Indian River Memorial was not entitled to reimbursement for a specified number of days of inpatient care provided to the Medicaid recipients identified in the denial letters because KePRO had determined either that the admission was not medically necessary or that it was not medically necessary for the recipient to receive acute inpatient care for the number of days he or she remained hospitalized.5 After it received the initial denial letters, Indian River Memorial requested that KePRO reconsider a number of its decisions denying reimbursement. KePRO completed the reconsiderations, and sent letters to Indian River Memorial advising it of the decisions to uphold or modify the initial denials. Based on the KePRO decisions on reconsideration, the Agency prepared and sent the April 28, 1997, and May 19, 1997, letters to Indian River Memorial seeking to recoup reimbursements for services provided to seventy-two patients admitted to Indian River Memorial and treated for psychiatric problems in 1992, 1993, and 1994; thirty-two patients were identified in the letter at issue in DOAH Case No. 97-2469, and forty patients were identified in the letter at issue in DOAH Case No. 97-2692. The Agency's decision to seek to recoup reimbursements made on behalf of most of these Medicaid recipients was based on KePRO’s determinations that there was no medical necessity for the hospital admission or that there was no medical necessity for a specified number of days of inpatient care.6 John Sullenberger, M.D., is Chief Medical Advisor for Florida's Medicaid Program, and he makes the final decision for the Agency regarding the medical necessity for health care goods and services provided to Medicaid recipients in Florida. Dr. Sullenberger is board-certified in surgery and in thoracic surgery, and he holds a license to practice medicine in Florida. Dr. Sullenberger reviewed both the initial and the reconsideration letters sent to Indian River Memorial by KePRO for fifty-four of the seventy-two Medicaid recipients identified in the attachments to the April 28, 1997, and May 19, 1997, letters.7 Because Dr. Sullenberger is not a psychiatrist, he did not offer an expert opinion as to the medical necessity for the days of acute inpatient care provided to these Medicaid recipients. Instead, he agreed with the decisions of KePRO with respect to fifty-three of the recipients and believed that the explanations in each of the KePRO letters provided a reasonable basis on which to deny reimbursement under the statutory definition of medical necessity applicable in Florida Medicaid cases; Dr. Sullenberger did not approve of the KePRO decision to deny reimbursement with respect to one recipient.8 Dr. Sullenberger did not review the medical records of any of the fifty-four Medicaid recipients, and he did not review the notes written by the physician advisors reviewing the cases for KePRO.9 Rather, Dr. Sullenberger based his agreement with the KePRO decisions exclusively on the cursory explanations contained in the initial and reconsideration letters. Indian River Memorial presented the testimony of three attending physicians for the Medicaid recipients at issue. Each of these physicians commented on the information contained in the medical records for their patients, explained their reasons for admitting and retaining each patient in an acute care setting, and offered their opinions that acute inpatient care was medically necessary for each of their patients at admission and throughout their hospitalization at Indian River Memorial. Indian River Memorial also presented the testimony of Bernard L. Frankel, M.D. Dr. Frankel is board-certified in psychiatry, is licensed to practice medicine in Florida and Georgia, and is currently a professor of psychiatry at Emory University in Atlanta, Georgia. Dr. Frankel reviewed the medical records for fifty-two of the fifty-three Medicaid recipients whose hospitalization in Indian River Memorial was ultimately placed at issue by Dr. Sullenberger's testimony, and Dr. Frankel offered his opinion as an expert in psychiatry as to the medical justification for the admission and length of stay for each of the fifty-two patients. Dr. Frankel expressed his opinion that, based on the information contained in the medical records and on his clinical judgment, the admission to and length of stay in an acute care facility such as Indian River Memorial was medically justified for each of the fifty-two patients. Dr. Frankel supported his opinions with a summary of the pertinent points documented in the medical records and with his assessment of the medical necessity of the hospitalization for each of the fifty- two patients. Neither Mercedes S. Borromeo, M.D., the attending physician, nor Dr. Frankel testified regarding the medical necessity for the admission and thirty-two-day hospitalization of patient J. P. J. P. was admitted to Indian River Memorial on November 10, 1993, and, in the opinion of the KePRO physicians both initially and on reconsideration, he should have been discharged on December 3, 1993, because he was stable and no longer needed acute inpatient care. Dr. Sullenberger testified that he agreed with the opinion of KePRO that ten days of the thirty-two days of hospitalization were not medically necessary. The Medicaid reimbursement per diem rate of $452.53 was effective from July 1, 1993, through December 31, 1993. The evidence presented by Indian River Memorial is sufficient to establish that, in DOAH Case No. 97-2469, the admission and length of stay was medically necessary for patients P. A.; T. A.; E. A.; D. A.; T. B.; B. B.; E. B.; M. B.; S. B.; J. C.; J. C., Jr.; B. C.; H. C.; B. D.; W. E.; J. F.; A. F.; E. J.; G. J.; M. L.; B. L.; S. L.; V. L.; C. L.; M. M.; R. M.; A. N.; Y. R.; J. S.; and K. B. (C.). The evidence presented by the Agency through Dr. Sullenberger's testimony and the KePRO letters is not sufficient to support the Agency's contention that the services provided these patients were not medically necessary.10 The evidence presented by Indian River Memorial is sufficient to establish that, in DOAH Case No. 97-2692, the admission and length of stay was medically necessary for patients J. B., Jr.; J. P. B.; K. C.; R. C.; M. D.; A. D.; R. D.; L. E.; C. F.; K. H.; M. H.; T. K.; J. L.; H. L.; J. M.; M. M.; R. P.; C. R. S.; J. S.; K. S.; M. S.; and R. W. The evidence presented by the Agency through Dr. Sullenberger's testimony and the KePRO letters is not sufficient to support the Agency's contention that the services provided these patients were not medically necessary.11 Indian River Memorial presented no evidence except the medical records to support the medical necessity for the acute inpatient care provided to patient J. P. from December 4, 1993, through December 13, 1993. In the absence of any expert testimony to establish the medical necessity for these ten days of hospitalization, Indian River Memorial must repay the Agency for the Medicaid reimbursement Indian River Memorial received for ten days of inpatient care for patient J. P., at the applicable per diem rate of $452.53. Finally, the Agency's claim in its Proposed Recommended Order that the Agency is entitled to recoup from Indian River Memorial payments made for a patient identified as R. D. is rejected. The Agency asserts that Indian River Memorial is not entitled to reimbursement under the Medicaid Program for inpatient services provided to R. D. on the basis of a "technical denial," that is, Indian River Memorial's failure to provide medical records for this patient. This assertion is not supported by any evidence of record, either through a KePRO letter or testimony of Dr. Sullenberger.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Requiring Indian River Memorial Hospital, Inc., to repay the Agency $4,525.30 for ten days of acute inpatient care provided to Medicaid recipient J. P.; and, Finding that the Agency is not entitled to recoup from Indian River Memorial reimbursements made under the Medicaid Program for services provided to any other Medicaid recipients identified in the April 28, 1997, Agency letter, DOAH Case No. 97-2469, or in the May 19, 1997, Agency letter, DOAH Case No. 97- 2692. DONE AND ENTERED this 28th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1999.
Conclusions DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 Having reviewed the Administrative Complaints and Notices of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Notices of Intent to Deny and Election of Rights forms to Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is superseded by this Agreement. 3. Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center shall pay the Agency $25,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 4. Conditional licensure status is imposed on Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center beginning on April 12, 2013. ORDERED at Tallahassee, Florida, on this 22 day of Marek 2014. Dg Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 3/4°—day of Mh re ‘A 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Anna G. Small, Esq. Allen Dell, P.A. 202 South Rome Avenue Tampa, Florida 33606 (U.S. Mail) Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) aU DECOY T |} 7256 9006 F111 6922 4925 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CovenNOR Better Health Care for all Floridians SEA ORETARY. EK May 22, 2013 ADMINISTRATOR “cre RECEIVED LAKESHORE VILLAS HEALTH CARE CENTER CLLIFY INTAKE UNFFLICENSE NUMBER: 1282096 16002 LAKESHORE VILLA DR . FILE NUMBER: 62921 TAMPA, FL 33613 MAY & 9 2013 CASE #: 2013005471 Agency for Health NOTICE Of INFENTEO. DENY Dear Ms. Johnson: It is the decision of this Agency that Lakeshore Villas Health Care Center’s license renewal application for a nursing home be DENIED. The specific basis for the Agency’s decision is based on the following grounds: e Pursuant to section 400.121(3)(d), F.S., the Agency shall revoke or deny a nursing home license for two class I deficiencies arising from separate surveys within a 30 month period. Lakeshore Villas Health Care Center was cited for Class I deficiencies on October 13, 2011 and November 14, 2012. ¢ = Section 408.815(1), F.S., states that in addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: (a) a violation of this part, authorizing statutes, or applicable rules; and (d) a demonstrated pattern of deficient performance. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. for Adminjstraty (/C- Bernard E. Hudsds, Manager Long Term Care Unit Agen ce: Agency Clerk, Mail Stop 3 EXHIBIT 1 Visit AHCA online at ahca.myflorida.com 2727 Mahan Drive,MS#33 Tallahassee, Fiorida 32308 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: LAKESHORE VILLAS HEALTH CARE CENTER CASE NUMBER: 2013005471 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed Notice of Intent to Deny of the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within twenty-one (21) days of the day you receive the attached Notice of Intent_to Impose_a Fine, Administrative Complaint or any other proposed action by AHCA. If an Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please reply using this Election of Rights form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) Please return your ELECTION OF RIGHTS to: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: (850) 412-3630 Fax: (850) 921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object and have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the proposed penalty, fine or action. OPTION TWO (2) __ I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)_____I dispute the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within twenty-one (21) days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: Nursing Home License number: 1282096 Applicant Name: SENIOR CARE GROUP INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER Contact person: Name Title Address: Street and number City Zip Code Telephone No. ; Fax No. Email (optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: ‘Date: Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case Nos. 2013006534 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing June 4, 2013, and to impose administrative fines in the amount of two thousand five hundred dollars ($2,500.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2012). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein. 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and Support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1)(1), Fla. Stat. (2012). 8. That Florida law provides the following: “‘Practice of practical nursing’? means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2012). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “All physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4.107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2012). 12. That on June 4, 2013, the Agency completed a re-visit to a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where, inter alia, Respondent failed to implement nutritional interventions for a resident and failed to ensure that provided wound care services for the treatment of pressure ulcers for two (2) of seven (7) sampled residents, said failure being contrary to community standards and Respondent’s policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative observed resident number two hundred twenty-three (223) on May 31, 2013, at approximately 5:30 p.m. and noted a thin gentleman in a private room on a low bed with signs on the door/equipment which indicated the resident was on special infection control precautions. 15. That Petitioner’s representative reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The face sheet identified the resident's original admission date as May 7, 2012, and a most recent admission date as March 4, 2013. b. The resident was documented as a male, fifty-nine (59) years of age, suffering from the following diagnosis: pressure ulcer, paralysis agitans, hypertension, diabetes mellitus, anxiety, dementia without behavioral disturbance, chronic kidney disorder, depression, esophageal reflux, and Alzheimer's disease. c. A care plan was developed on May 16, 2013 as follows: i. Problem of: Actual skin breakdown related to unstageable to coccyx debrided surgically May 3, 2013; May 3, 2013 Right outer ankle open area Stage II. ii. Relevant care plan approaches were as follows: Treatment to coccyx/wound vac as ordered; Right ankle treatment as ordered; Monitor site for signs and symptoms of infection. d. Physician's orders included the following: i. May 17, 2013 Telephone Order: Continue Medihoney to right lateral ii. iil. ankle, change dressing every other day and as _ needed soiling/dislodgement. May 17, 2013, Telephone Order: Discontinue Santyl to sacral wound, discontinue Acticoat Flex to sacral wound; Apply Silver Foam to sacral wound, for wound vac dressing. May 24, 2013, Telephone Order: Sacral wound: Apply collagen matrix to wound bed; then apply KCI wound vac. ,change dressing every Monday, Wednesday, and Friday and as needed (PRN) soiling/dislodgement. The resident’s May 2013 Treatment Administration Record (TAR) reflected as follows: i, ii. The May 17, 2013, treatment to the sacral area was documented to Apply silver foam to sacral wound. Then black foam then wound vac every Monday, Wed, and Friday and PRN. This treatment was not documented as administered on May 22, 2013, Wednesday, as ordered. A new treatment of May 24, 2013, to the sacral wound, was noted to be done on the 7:00 a.m. - 3:00 p.m. shift. On Friday May 31, 2013, at approximately 6:30 p.m., the treatment for that day had not yet been initialed as administered. Respondent’s unit manager for the resident on May 31, 2013, at 6:40 p.m. confirmed to Petitioner’s representative that this treatment should have been done by the day shift nurse. Weekly wound documentation signed by the resident's unit manager and dated May 30, 2013, documented the following wound measurements for May 30, 2013: Sacrum - 8.3 cm x 8.0 cm x 1.6 cm with undermining at 12:00 and 4.5 cm deep; Ankle - 0.5 cm x 0.4 cm x 0.2 cm. A progress note by the Wound Care Advanced Registered Nurse Practitioner dated May 24, 2013, documented the exact same measurements as the May 30, 2013 unit manager's weekly wound documentation. 16. That as a result of documentation in the record of resident number two hundred twenty- three (223), which was lacking documented care to the sacral wound on May 22 and 23, 2013, and the documented unchanged appearance of the wound for six (6) days, Petitioner’s representative requested the opportunity to observe wound care of the resident on May 31, 2013 commencing at approximately 6:45 p.m. and noted as follows: a. An isolation sign was on the door with Personal Protection Equipment (PPE) hanging from a yellow door container. Prior review of the infection control log revealed that the resident was receiving contact isolation precautions for C. Diff (Clostridium Difficile). Respondent’s staff nurse “A” was at the bedside and did not have an isolation gown covering his uniform. A wound vacuum machine was on the floor, resting on a floor mat on the right side near the head of the bed. The machine tubing was attached. It was not connected to the secondary tubing that attaches to the resident. An over bed table against the wall contained new wound care supplies including foam and 4x4s needed for wound care. The supplies were open and appeared ready to use. The over bed table had no clean barrier and also resting on the table were the following: a partial glass of cranberry juice with some partially dried areas of juice noted under the wound vacuum packaging, a covered Styrofoam cup of water, eye glasses, newspaper, and a crossword puzzle book. Against the right wall were two large isolation waste bins; a red and a yellow one, with a partially consumed dinner tray on top of the red bin. Nurse “A” stated he had not completed the wound care today, and that the wound vacuum came off the sacral wound "by itself” earlier today and he had covered the wound with a temporary covering. There was a clear dressing over the sacral wound. It was not dated. Respondent’s unit manager of the 200 hall came into the room to assist with positioning the resident. Nurse “A” washed his hands, gloved, and removed a small adhesive dressing covering the right lateral ankle. The unit manager began to measure the ankle wound using a stick end of a Q tip and comparing it to a paper ruler. She referred to the ankle wound as a Deep Tissue Injury (DTI). It is listed as a pressure ulcer on the wound care consult's document dated May 23, 2013. The ankle wound was an indented, round area in the middle of the wound with a yellow/pink base. The periwound area was red/pink and appeared inflamed and slightly edematous, extending about one inch past the open area boarder. The unit manager stated that the periwound discoloration was "not there before" and she would call the doctor. Staff nurse “A” stated he disagreed with the periwound being inflamed and stated when using the medication "Medihoney"” the wound might look "a little irritated." The unit manager stated this was a change from the observation of a couple of days ago and stated the treatment with Medihoney had been ongoing for "about one month." The right ankle wound remained uncovered for the duration of the wound care, lasting over one and one half hours, including incontinence care provided by two aides, that required the turning and positioning of the resident. Staff nurse “A” changed his gloves, used hand gel, and moved to the right side of the bed to care for the sacral wound. The nurse stated he "measured him on Wednesday and the wound was around 9 x 9 centimeters (cm.) with undermining.” He stated he was recently rehired by the facility and had returned several days ago. He was a Registered Nurse, listed on the employee list as the Wound Nurse. He removed the old undated dressing which contained a 4 x 4 gauze saturated with pink serous drainage. Continuing with the same gloves he measured the wound with a paper tape and found the following: length= 9.0 cm; width, 6.5 cm; depth 3.5 om. The base of the wound was visible with about 20% yellow slough and 80 % granulation tissue. Using the same gloves, the nurse picked up a small flashlight and visualized the wound, set the flashlight down, picked up a Q tip and used the cotton end to evaluate the inside of the wound. He stated there was tunneling in two areas; one area of 1.7-2.0 cm and a bb. cc. dd. ee. ff. gg. ii. ji- I. second "around 4 o'clock" measuring 3.5 cm. The nurse measured the wound on his knees, with his uniform against the bed at times. Per a facility lab report, dated April 20, 2013, a wound culture revealed heavy growth of two bacteria, Escheriachia Coli and Proteus Mirabilis. The resident was treated with a course of the antibiotic Cipro. The resident was shaking with a Parkinsonian type tremor of the upper extremities. He was on his left side. He was alert and oriented. He denied pain at about 7:10 p.m. At about 7:10 p.m., the unit manager observed the wound vacuum on the floor. She picked it up, removed the tubing and discarded it. She initially placed it back on the floor mat, picked it up again and hung it from the bed rail. Staff nurse “A” then was observed to re-glove without sanitizing his hands, touched a red garbage bag on the bed with the clean gloves, and turned to the over bed table and began assembling his supplies, including clean 4x4s, with the same gloves. He removed his gloves, did not sanitize his hands, re-gloved, sprayed a 4 x 4 gauze with wound cleanser, and placed the 4x4 into the base of the wound. The periwound skin was red and blotchy with the perimeter extending over one inch past the open wound. There was no odor present. He again removed his gloves, did not sanitize, and re-gloved. He then moved the juice and personal items off the table, and moved some wound care supplies from the bed to the table. oo, pp. qq. SS. uu. He did not clean up the spilled/dried juice on the table. The nurse noted that the resident was incontinent of a small amount of soft bowel movement. He stopped the wound care and asked for the assistance of nurse aides to help with the incontinence care. Around 7:25 p.m., two aides came into the room wearing isolation apparel including gowns, gloves and masks. Staff nurse “A” stepped away from the bed, removed his gloves, washed his hands and left the room, stating he was going to "get wipes to wipe down the pump." The sacral wound remained covered with a 4x4 saturated in wound cleanser. The ankle wound remained uncovered. One of the aides stated they needed to remove the two rubber backed incontinence pads under the resident as they were not to be used with the special mattress under the resident. They rolled the resident side to side to remove the pads and again to provide incontinence care. The sacral wound remained covered with the unsecured 4x4 and the ankle wound remained uncovered during the incontinence care. At 7:35 p.m., staff nurse “A” returned wearing an isolation gown over his uniform. He began to clean the wound vacuum machine with a solution marked "Virasept." A hand written note on the pump spray stated "C. Diff." and large black labeling down the side stated "EXP: November 2011.” XX. yy: ZZ. bbb. cece. ddd. cece. fff. gee. After he cleaned the machine this surveyor asked about the expiration date. The unit manager from another unit appeared at the door and initially stated that was the manufacturing date, but then agreed EXP was the universal label for expiration and left to obtain another bottle of cleanser. Staff nurse “A” resumed wound care after he re-gloved and moved to the window side of the bed, attempted to reposition the resident alone, stated it was "better from the other side," and moved the over bed table again to the door side of the bed. He handled the spray bottle, the resident, the plugs to an outlet, and the air mattress controls at the bottom of the bed with the same gloves. At 7:50 p.m., nurse “A” disposed of his gloves, used hand gel, re-gloved and repositioned the resident on his left side, toward the window. At this time, the unit manager from another unit was assisting with positioning the resident, asked the resident if he was okay, and the resident stated he needed a pain pill. The resident stated his pain was nine (9) of ten (10). The unit manager of the 200 hall was informed of the need for a pain pill. At 7:57 p.m., staff nurse “A” removed the 4x4 gauze from the sacral wound, removed the right glove, did not use hand sanitizer, re-gloved the right hand, and sprayed wound cleanser on a clean 4x4. He removed both gloves and re-gloved without using hand sanitizer. He cleaned the periwound area with the wound cleanser gauze, removed his gloves, did not sanitize his hands, and continued. No bone was visible, but the wound base showed outlines of boney prominences. (An X-ray of the sacrum and coccyx were done on April 26, 11 iii. I. 000. Ppp. qaqa. SSS. uuu. 2013, to rule out osteomyelitis. There was none detected at that time.) Nurse “A” removed his gloves, used hand sanitizer, re-gloved and used several packages of skin prep to the area surrounding the wound. He removed his gloves, did not sanitize his hands, and re-gloved. He used a two inch clear tape to, as he said, "picture frame” the wound in the periwound area, At 8:07 p.m. the unit manager returned with the pain pill. . The resident, alert and oriented, stated again that the pain was nine (9) of ten (10). The unit manager gave him the pill, crushed in applesauce, and left the room without washing her hands. At 8:10 p.m., nurse “A” prepared the wound supplies by cutting the black foam piece used with the wound vacuum. He removed the gauze in the sacral wound base and, using his right index finger, covered with a clean gloved finger, he probed the sacral wound areas of tunneling near the proximal edge of the wound, toward the spine. He removed his gloves, used hand gel, re-gloved, and placed small pieces of white foam wedges along the areas of wound tunneling. He then placed the large piece of black foam into the wound, covering the wound bed. He covered the entire wound with clear plastic wound covering. He then removed his gloves, did not sanitize his hands, re-gloved and cut a hole in the center of the clear plastic wound cover for the wound vacuum site. He created a "foam bridge" across the right buttocks for the tubing for the wound vacuum, again removed his gloves, did not sanitize, and re-gloved to complete the wound care. The surveyor left the resident bedside at 8:25 p.m., one hour and forty minutes after the beginning of wound care. 17. That Petitioner’s representative further reviewed Respondent’s records related to resident number two hundred twenty-three (223) during the survey and noted as follows: a. The resident had a history of Depressive Disorder and Parkinson's Disease (Paralysis Agitans), both of which could have contributed to his inability to express his anguish during this extended wound care experience. He was observed to be passive when asked if he was doing alright, until the time when he requested pain medication. The psychological overlay from this experience, outside the expectations for wound care of this type, are yet to be determined. The dependent state of this resident was clearly documented throughout the medical record. On May 14, 2013, the nurse practitioner wrote that the resident was "eating with staff assisting" and he "wants to go home." The nurse practitioner added that the resident was "more alert" but "slow to answer.” It is unknown whether the resident felt the degree of anguish or degradation others would feel in this situation. He seemed unable to express his feelings during this observation. The resident was fifty-four (54) years of age, seventy-two (72) inches tall, and had an admission weight of one hundred fifty-four (154) pounds. Weight change history for April to May 2013 reflected as follows: i. April 16, 2013 — one hundred forty-nine (149) pounds. vi. i. April 22, 2013 — one hundred forty-eight (148) pounds. iii. April 29, 2013 ~ one hundred forty-eight (148) pounds. May 13, 2013 — one hundred thirty-eight (138) pounds. May 27, 2013 — one hundred thirty-nine (139) pounds. May 30, 2013 — one hundred thirty-nine (139) pounds. Care plan dated May 17, 2013, provides as follows: i. iii. Problem: ...risk for alteration in nutrition/hydration related to texture modified diet. Cognitive impairment. - Relevant goal related to this nutrition concern: ...will not experience significant weight changes thru next review date of 8/13/13. Relevant approach was in place to assist with achieving this goal: Supplements as ordered. The registered dietitian's notes since development of this care plan revealed the following entries: i, May 17, 2013, 10:23 p.m. - Weight and Wound review: Weight down in past month, after having been stable for over a month -- now at 138 lbs, 78% of ideal body weight (IBW). This represents a significant weight loss of 7.5% in 30 days, likely r/t C-Diff. Skin: Stage II sacrum (This wound is actually a large stage 4 pressure ulcer). Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30/4; albumin from. 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquid--resident averages 50% - 100% at most meals. Also receives Med Pass 90 ml four times a day, Prostat 30 ml twice a day, and multi-vitamin (MVI) with minerals for extra nutrition support. 18, Recommend: (1) change Med Pass to 120 ml four times a day secondary to wound (2) change Prostat to 30 ml three times a day secondary to wound/C-Diff (3) clarification: MVI with minerals one daily by mouth secondary to wound (3) fortified foods three times a day with meals. ii. May 30, 2013, 7:29 p.m. - Weight/Wound review: Weight has stabilized in past 2 weeks--now at 139 Ibs, 81% of ideal body weight (IBW). This represents a significant weight loss of 6.1% in 30 days and 9.7% in 90 days--most recent loss likely related to C-Diff. Skin: Stage IV sacrum and open area right ankle. Labs: most recent from 5-11 indicate moderately depleted hemoglobin and hematocrit at 10.3/30.4; albumin from 5-2 significantly depleted at 2.48. Diet: LCS Puree with nectar thick liquids-- resident eats well at meals (50-100%). Also receives Med Pass 120 ml four times a day, Prostat 30 ml three times a day, MVI with minerals, and fortified foods for extra nutrition support. Recommend: (1) magic cup each day at lunch secondary to weight loss. j. A telephone physician order written on May 17, 2013 provided: 1. Change Med Pass to 120 ml four times a day; 2. Change Prostat to 30 ml three times a day. k. The resident’s May 2013 medication administration record (MAR) and treatment administration record (TAR) did not reflect the orders to increase the supplement of Med Pass and Prostat written on May 1, 2013, and therefore the supplements were not administered in accordance with the dietitian's recommendations or physician's orders. That Petitioner’s representative interviewed Respondent’ s registered dietitian on May 31, 2013 at 7:09 p.m. regarding resident number two hundred thirty-three (233) who indicated as follows when shown that the supplement orders from May 17, 2013, had not been implemented: "He needs everything we can give him and then some. I know the order was written to increase Med Pass and Prostat. I wrote it myself.” 19. That Petitioner’s representative interviewed Respondent’s director of nursing on June 1, 2013 at 10:30 a.m. advising of the infection control concerns noted during the observation the night before with staff nurse “A” and resident number two hundred thirty-three (233) to which the director responded that the nurse was recently rehired and was not, in fact, the wound nurse, and that nurse A, who was not in the building on this day, was to be monitoring wound healing and a desk nurse on the north wing. 20. That Petitioner’s representative requested an updated employee list as nurse “A” was listed as "wound nurse," and the second list recorded nurse “A” as a staff nurse. 21. That Petitioner’s representative reviewed Respondent’s records related to resident number seventy-three (73) during the survey and noted as follows a. The resident was readmitted on November 28, 2012, per the facility face sheet. b. Diagnoses listed on the Physician Order Sheet (POS) for June 2013 included dementia, cardiovascular accident (CVA), osteomyelitis and sacral decubitus. c. Weekly Wound Documentation forms dated January 4, through May 29, 2013, documented that the resident was receiving ongoing treatment for a Stage IV sacral pressure ulcer. d. Weekly Wound Documentation forms dated April 6 through May 30, 2013, showed additional treatment for an unstageable wound on the right ischium. e. Current wound orders per the June 2013 physician order sheet were as 16 follows: i, Sacrum - apply Medihoney, fill with Ca (calcium) alginate, cover with clear occlusive dressing. Change every Monday, Wednesday and Friday and PRN (as needed). ii. Right hip - apply silver hydrogel with collagen (wound size). Cover with ded (dry clean dressing). Change Monday, Wednesday and Friday and PRN. 22. That Petitioner’s representative requested the Opportunity to observe wound care of resident number seventy-three (73) on June 3, 2013 commencing at approximately 11:35 a.m. with Respondent’s employee “B,” the resident’s assigned nurse, and noted as follows: a. b. The resident was positioned on the left side. The nurse washed her hands, put on gloves and removed the existing dressing from the resident's right hip wound. A moderate amount of serous drainage was noted on the discarded dressing. Without washing hands or changing gloves, she removed and discarded the dressing from the sacral wound. No drainage was noted on the sacral dressing. The nurse then removed her gloves, washed her hands and put on clean gloves. She proceeded to clean the sacral wound with wound cleanser and discarded the soiled gauze. She then cleaned the right hip wound and discarded the soiled gauze. The nurse did not wash her hands and/or change gloves between cleaning the two separate wounds. i. The nurse continued the wound care as ordered by applying Medihoney and calcium alginate to the sacral wound which was then covered with a clear occlusive dressing. j. Without washing hands and/or changing gloves, the nurse completed the wound care for the right hip wound with silver hydrogel ointment and collagen. k. She covered the wound with a clean adhesive dressing. 1 She discarded the used supplies, removed her gloves and washed her hands. 23, That Petitioner’s representative interviewed Respondent’s employee “B” directly after the above described observation and the employee indicated as follows: a. When asked about facility policy and/or procedure regarding wound care for residents with multiple wounds, the nurse stated that it was "usually" the procedure to provide treatment to each wound area separately. b. She stated that, due to the resident's advanced age, she chose to dress the clean, dry sacral wound and proceed directly to the hip wound dressing, c. When asked about the possibility of cross contamination, she agreed that there was a potential for cross-contamination by not washing her hands and changing gloves between the two separate wound care treatments, 24. That Petitioner’s representative reviewed Respondent’s policy and procedure on wound care for dressing applications entitled “Skin and Wound Management, Dressings, Dry/Clean, Level III from the Nursing Services Policy and Procedure Manual, copyright 2001 MED-PASS, Inc. (Revised October 2010), and noted under a subheading titled “Steps in the Procedure” the following twenty-five (25) numbered items: a. Step one (1) - Clean a bedside stand and establish a clean field. b. Steps two (2) through six (6) - Provided additional instructions for assembling supplies and preparing the resident for the procedure. c. Step seven (7) - Wash and dry your hands thoroughly. d. Step eight (8) - Put on clean gloves. Loosen tape and remove soiled dressing. e. Step nine (9) - Pull glove over dressing and discard into plastic or biohazard bag. f. Step ten (10) - Wash and dry your hands thoroughly, g. Steps eleven (11) through thirteen (13) - Provided instructions for opening and arranging dressing supplies using clean technique. h. Step fourteen (14) - Put on clean gloves. i. Step fifteen (15) - Contained instructions for wound assessment. j. Step sixteen (16) - Cleanse the wound. Use a syringe for irrigation if ordered. If using gauze, use a clean gauze for each cleansing stroke. Clean from the least contaminated area to the most contaminated area (usually, from the center outward). k. Steps seventeen (17) through nineteen (19) - Provided instructions to complete the dressing application. L. Step twenty (20) - Remove disposable gloves and discard into designated container. Wash and dry your hands thoroughly. m. Steps twenty-one (21) through twenty-five (25) - Instructions to make the resident comfortable following completion of the procedure. 25. That Respondent’s employee “B” did not follow Respondent’s policy and procedure steps seven (7), eight (8), ten (10), and fourteen (14), where the employee failed to remove gloves, wash hands, and put on clean gloves between treating two separate wounds for resident 19 number seventy-three (73). 26. That on June 24, 2013 at 12:00 noon, Respondent’s nursing home administrator and director of nursing were again informed of the concerns with wound care for residents numbered two hundred twenty-three (223) and seventy-three (73). 27. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow physician orders, and failed to ensure that it maintained the facility premises and equipment and conduct its operations in a safe and sanitary manner including, but not limited to, the failure to follow Facility policy and procedure and community standards related to hand sanitation and glove use during wound care, the failure to implement contact procedures related to infection control, the failure to implement care planned interventions, and the failure to follow physician orders. 28. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 29. That Respondent was cited for an isolated Class II deficient practice. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of two thousand five hundred dollars ($2,500.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2012). 20 COUNT II 30. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 31. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part IT of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing June 4, 2013. Respectfully submitted this 2 day of July, 2013. f eof THomas J. Walsh II, Esquire FI Bar No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: 7, he Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, F Torida, 32308, (850) 412-3630. 21 RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8952 on July 2 & , 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. a Phorfas J. Walsh, II, Esquire “A / Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 22 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013006534 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___—S—I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RICK SCOTT GOVERNOR July 8, 2013 LAKESHORE VILLAS HEALTH CARE CENTER 16002 LAKESHORE VILLA DR . TAMPA, FL 33613 Dear Administrator: ELIZABETH DUDEK SECRETARY RECEIVED GENERAL COUNSEL JUL 12 2013 Agency for Health Care Administration The attached license with Certificate #18248 is being issued for the operation of your facility. Please review it thoroughly to ensure that all information is correct and consistent with your records. If errors or omissions are noted, please make corrections on a copy and mail to: Agency for Health Care Administration Long Term Care Section, Mail Stop #33 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Issued for status change to Conditional. Sincerely, SFracey Weatherspoan for Kathy Munn Agency for Health Care Administration Division of Health Quality Assurance Enclosure ce: Medicaid Contract Management 2727 Mahan Drive, MS#33 Tallahassee, Florida 32308 Visit AHCA online at ahca.myflorida.com gouvmssy fy NC) GBI] JO UOISIAT ch, Areyoroeg Ajndaq ; €102/67/90 ‘LV NOLLVUd Xa vr, nk je? y €10¢/P0/90 ‘ALVC AALLOGAAA > : HONVHD SOLVIS . Sdad 6LT “IVLOL E19EE Td “WdNV.L Ud VTUA JAYOHSHAVT cOO9T YaLNAD. wav) HLTVEH SV TIA AYOHSAAVT ‘SUIMOT[OJ oy} oye1odo : 0} pozoyINe st sasusoy] sy] se pure ‘soIMeEIS BPO “TT ued ‘OOP JaideyD ur pozoyne ‘uoneENsIUUIpy sed YIeOPT 10,4 Aouesw ‘epHopy Jo a1eig.atp Aq poidope suopeyndor pue sopnz.oy) yatm porfdurcs sey “NI “dMOUD TAVD YOINAS ky) wWaryuoo oF st sIL TIVNOILIGNOD HINOH ONISYON AONVUNSSY ALIIVND HLTVaH AO NOISIAIG NOILVULSININGV dav HLTVAH YO AONADV BPO] JO 3381S 960C87IANS ‘# ASNSOIT 8¥C8l -# ALVOIMLLYEO STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, . vs. Case Nos. 2013007612 SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to change Respondent’s licensure status from Standard to Conditional commencing July 11, 2013, and to impose administrative fines in the amount of five thousand dollars ($5,000.00), based upon Respondent being cited for one (1) isolated State Class II deficiency. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 120.60 and 400.062, Florida Statutes (2013). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes and rules governing skilled nursing facilities pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended), EXHIBIT 1 Chapters 400, Part Il, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. 4. Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 5. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs one (1) through five (5), as if fully set forth herein, 7. That pursuant to Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency. § 400.022(1)(J), Fla. Stat. (2013). 8. That Florida law provides the following: “‘Practice of practical nursing’ means the performance of selected acts, including the administration of treatments and medications, in the care of the ill, injured, or infirm and the promotion of wellness, maintenance of health, and prevention of illness of others under the direction of a registered nurse, a licensed physician, a licensed osteopathic physician, a licensed podiatric physician, or a licensed dentist. A practical nurse is responsible and accountable for making decisions that are based upon the individual’s educational preparation and experience in nursing.” § 464.003(19), Fla. Stat. (2013). 9. That Florida law provides the following: “A complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1. Reviewed no less than once every 3 months, 2. Reviewed promptly after a significant change in the resident’s physical or mental condition, 3. Revised as appropriate to assure the continued accuracy of the assessment.” Rule 59A-4.109(1)(c), Florida Administrative Code. 10. That Florida law provides “Ail physician orders shall be followed as prescribed and if not followed, the reason shall be recorded on the resident's medical record during that shift.” Rule 59A-4,107(5), Florida Administrative Code. 11. That Florida law provides the following: “Every licensed facility shall comply with all applicable standards and rules of the agency and shall ... Maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner.” § 400.141(1)(h), Fla. Stat. (2013). 12. That on July 11, 2013, the Agency completed a complaint survey of Respondent’s facility. 13. That based upon the review of records and interview, Respondent failed to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, where Respondent failed to, inter alia, ensure and provide appropriate interventions for bowel incontinence and a dislodged dressing to prevent fecal contamination of an open wound on a resident’s coccyx whose wound was then identified to be a stage II pressure ulcer that had tripled in size within one week from July 2 through 9, 2013, said failure being contrary to community standards and Respondent's policies and procedures, and the same being contrary to law. 14. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a. b. The resident was originally admitted to the facility on April 7, 2005. Medical diagnoses included osteoarthritis, depression, Alzheimer's disease, general muscle weakness, and dysphagia. The most recent minimum data set, dated June 10, 2013; included the following: i. Section G documented the resident was total dependent upon one person physical assistance for toileting and personal hygiene and bed mobility. ii. Section M documented the resident had two stage II pressure ulcers. A care plan, last updated June 12, 2013, documented under “Problem” that the resident had a stage II pressure ulcer to the resident's left buttock. A "Weekly Wound Documentation" sheet documented on June 11, 2013, that the coccyx wound was measured to be 1.7cmx1.7emx0.1cm, and documented the wound as being a stage II pressure ulcer. A weekly wound measurement of July 2, 2013 documented the wound measured to be 1.2cmx0.7cmx0.3cm. A weekly wound measurement of July 9, 2013 documented the wound measured to be 4.0cmx4.1cmx with "unstageable tissue damage." 15. That on July 11, 2013 commencing at approximately 10:20 am., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. The resident was observed lying in bed. b. There was a strong odor of feces that was noted at first in the hall and persisted outside of the resident's room. c. Petitioner’s representative knocked on the door, and Respondent’s employee “A” opened the door and stated that she was the certified nurse assistant (CNA) that was assigned to the resident and was going to render incontinence care to the resident. d. The resident made no attempt to verbalize, with eyes were closed and both arms appearing contracted. e. The resident was lying on the left side to reveal a moderate amount of stool. f. Approximately one inch up from the stool, a soiled gauze dressing that was not attached to the resident's skin on the bottom was dangling, and had another piece of gauze protruding from underneath that appeared heavily soiled with drainage and brown discoloration on the edges. g. Employee “A” was observed to cleanse the stool using upward strokes, repeatedly using the same soiled cloth and cleansing upward from the resident's anal area toward the wound that was not protected by the dressing. h. After removing the stool, using the one soiled wash cloth, she then dried the area with a towel. 16. That Petitioner’s representative interviewed at approximately 10:45 am. on July 11, 2013, Respondent’s employee “B” regarding resident number one (1) and the employee indicated as follows: The certified nursing assistant did not tell her anything about the resident or any concerns that should have been reported to the nurse after she rendered incontinence care. Certified nursing assistants are expected to notify the nurse to "Check their skin" during incontinence care. 17. That on July 11, 2013 commencing at approximately 12:00 p.m., Petitioner’s representative observed resident number one (1) and interacted with Respondent’s caregivers, and noted as follows: a. Respondent’s Unit Manager assisted with re-positioning the resident onto the right side so that the surveyor could observe the resident's coccyx area. The unit manager stated that the nurse had gone on break, and that no one had told her about any problem with the resident's dressing. She washed her hands and gloved. The soiled, partially attached dressing remained in place, now one hour and forty minutes after Employee “A” was observed to give the resident incontinence care and had observed that the dressing to the pressure ulcer was no longer intact. The bottom half of the outer dressing remained unsecured to the skin, and a gauze dressing protruding underneath was saturated with yellow drainage, and dots of darker brown substance on the edges. The unit manager was asked to remove the dressing so the surveyor could view the wound. g. The top adhesive part of the dressing was attempted to be removed by the unit manager, but only came loose with difficulty, and then the skin underneath was noted to be bright red and very fragile. h. The unit manager stated that she would make the wound care nurse aware and the dressing would be changed. 18. That Petitioner’s representative interviewed at approximately 1:15 p.m. on July 11, 2013, Respondent’s wound care nurse regarding resident number one (1) and the employee indicated as follows: a. The unit. manager had informed her of the problem with the resident's dressing. b. She confirmed that the dressing should be maintained to be intact at all times, and if it becomes dislodged, then the nurse, or the treatment/wound care nurse should be notified immediately. c. She confirmed that exposing the wound to fecal contamination can cause delayed healing or worsening of the wound. d. She stated that she had created a larger dressing so that the adhesive would not be in contact to the fragile skin. e. She confirmed that she had re-measured the wound on July 9, 2013, and notified the physician and the family that the wound had tripled in size within one week's time. 19. That Petitioner’s representative interviewed at approximately 2:40 p.m. on July 11, 2013, Respondent’s employee “D” regarding resident number one (1) and the employee indicated as follows: a. He is employed by the facility as a nurse, and most recently he has been a treatment and wound care nurse, although he has taken resident assignments as well. b. When asked what his expectations would be if a certified nursing assistant performed bowel incontinence care and observed that a dressing had become open or dislodged within the area of the bowel incontinence, he replied "I would expect them to clean the resident and them come to me immediately and let me know. If the dressing is open then that makes the wound susceptible to cross contamination, and maybe infection, and worsening of the wound. If it is coming off, then it is not going to be an effective dressing. The dressing should be secured on all sides of the wound to protect it and allow healing.” c. He also stated that the certified nursing assistant should not be wiping the feces toward the open wound to avoid bacterial contamination that could cause infection, impair healing, and worsen the pressure ulcer. 20. That Petitioner’s representative reviewed during the survey Respondent’s policy and procedure entitled "Diarrhea and Fecal Incontinence," last revised 8/11, and noted the following provisions: a. Step 6: "Wipe feces from the resident's skin." b. Step 11. "When evaluating the condition of the resident's skin, note the following ... c. Pressure ulcers." 21. That the above reflects Respondent’s failure to ensure residents receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities; and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with rules as adopted by the agency, failed to follow ensure that incontinent care was provided to assure that no contamination of wounds occurs, to ensure incontinent care includes checks for skin condition and prompt attention given to presented issues, such as loose and soiled bandages, and to ensure effective bandaging of wounds to minimize risk of infection or contamination. 22. That the Agency determined that this deficient practice has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency, 23. That Respondent was cited for an isolated Class II deficient practice. 24, That the fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. Section 400.23(8)*b), Florida Statutes (2013). 25. That Respondent was cited for a Class II deficient practice during a survey of June 4, 2013. See Attachment “A,” attached hereto and incorporated herein by reference. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of five thousand dollars ($5,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(b), Florida Statutes (2013). COUNT II 26. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 27. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2013). WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2012) commencing July 11, 2013. Respectfully submitted this t day of August, 2013. f J. Walsh IL, Esquire Flag Bar. No. 566365 Agency for Health Care Admin. 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 727.552.1947 (office) DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the right to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Florida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 8990 on August » 2013 to Jacqueline F. Hurt, Administrator, Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center, 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and by Regular U.S. Mail to David R. Vaughan, Registered Agent for Senior Care Group, Inc., 1240 Marbella Plaza Drive, Tampa, Florida 33619. alsh, II, Esquire Copies furnished to: Patricia R. Caufman, FOM Jonathon S. Grout, Esq. Counsel for Petitioner P.O. Box 875 Cape Canaveral, Florida 32931 11 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013007612 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___—Ss— I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(i), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. ACHA No. 2013010196 License No. 1282096 SENIOR CARE GROUP, INC. d/b/a File No. 62921 _ LAKESHORE VILLAS HEALTH CARE CENTER, Provider Type: Nursing Home Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “Agency”), by and through the undersigned counsel, and files this Administrative Complaint against Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Respondent”), pursuant to §§120.569 and 120.57 Florida Statutes (2013), and alleges: NATURE OF THE ACTION This is an action to impose administrative fines in the amount of $10,000.00, impose conditional licensure, and to impose survey fees of $6,000.00 with a 6 month survey cycle based upon Respondent being cited for one State Class I deficiency. PARTIES 1. The Agency is the licensing and regulatory authority that oversees skilled nursing facilities (also called nursing homes) and enforces the state statutes and rules governing such facilities. Ch. 408, Part I, Ch. 400, Part II, Fla. Stat; Ch. 59A-4, Fla. Admin. Code. The Agency is authorized to deny, suspend, or revoke a license, and impose administrative fines pursuant to sections 400.121, and 400.23, Florida Statutes, assign a conditional license pursuant to subsection 400.23(7), Florida Statutes, and assess costs related to the investigation and prosecution of this case pursuant to section 400.121, Florida Statutes EXHIBIT 1 2. The Respondent operates a one hundred seventy-nine (179) bed nursing home, located at 16002 Lakeshore Villa Drive, Tampa, Florida 33613, and is licensed as a skilled nursing facility license number 1282096. 3. Respondent was at all times material hereto, a licensed nursing facility under the licensing authority of the Agency, and was required to comply with all applicable rules, and statutes. COUNT I 4. Under Florida law, all licensees of nursing homes facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the right to receive adequate and appropriate health care and protective and support services, including social services; mental health services, if available; planned recreational activities, and therapeutic and rehabilitative services consistent with the resident care plan, with established and recognized practice standards within the community, and with tules as adopted by the agency. § 400.022(1), Fla. Stat. (2013). 5. Under Florida law, every licensed facility shall comply with all applicable standards and rules of the agency and shall maintain the facility premises and equipment and conduct its operations in a safe and sanitary manner. § 400.141(1)(h), Fla. Stat. (2013). 6. Under Florida law, a complete, comprehensive, accurate and reproducible assessment of each resident’s functional capacity which is standardized in the facility, and is completed within 14 days of the resident’s admission to the facility and every twelve months, thereafter. The assessment shall be: 1) Reviewed no less than once every 3 months; 2) reviewed promptly after a significant change in the resident’s physical or mental condition; 3) revised as appropriate to assure the continued accuracy of the assessment. Rule 59A-4.109(1)(c), Florida Administrative Code. 7. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 8. On or about August 13, 2013, the Agency conducted a complaint survey of the Respondent. 9. That based upon observation, interviews, and the review of records, Respondent failed to ensure resident rights to dignity where Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for a sole resident currently residing in a facility with revoked Medicaid and Medicare certification. 10. That resident number one (1) was transferred into the Respondent facility after the facility transferred out all prior residents under the supervision of the Agency. 11. That resident number one (1), who was eighty-nine (89) years old, was the sole resident living in the facility at the time of this investigation. 12. That Petitioner’s representative observed resident number one (1) on August 13, 2013, sleeping on a mattress on the floor, covered with a sheet in room 111, a private room. There were no signs of incontinence. 13. That resident number one (1) was the only resident in the entire facility and the entire 179 bed facility was dark with closed rooms and common areas, except the small area of the 100 hall where the resident was residing. 14. That there was one licensed practical nurse giving the resident medications, one aide caring for the resident, and the interim Director of Nursing was seated at the desk. 15. That there was no sign on the door and no specific personal protection equipment indicating a need for isolation requiring a private room. 16. That Petitioner’s representative interviewed Respondent’s corporate nursing home administrator who indicated the following related to resident number one (1): a. 17. The resident was receiving one-on-one care and the resident’s activities included fishing in the pond in the front of the facility. The resident was admitted from a “sister” facility when the resident lost funding for Medicaid. This facility offered to “forgo” the private pay fees. The facility planned to transfer the resident back to the prior facility in “about a month.” The facility was able to offer the resident a private room and the resident “needed” a private room, but was unable to explain why. That Petitioner’s representative reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: a The facility face sheet revealed the resident had an admitting diagnosis of senile dementia. Other diagnoses listed included: late effects of cardiovascular disease/dysphasia, hypertension, BPH (benign prostate hypertrophy), anxiety state, hyperlipidemia, osteoporosis, history of UTI (urinary tract infection), coronary artery obstruction with infarct, and a history of falls. The billing section of the facility face sheet documented the resident was private pay. Medicaid and Medicare numbers were listed. The responsible party listed an adult child. A primary physician was listed. Current physician’s telephone orders stated to give “high calorie shakes q (every) dinner.” h. The resident’s weight on admission was 134.0 pounds, and the resident was 67 inches tall. i. It was unknown if the resident had lost weight since the transfer to this facility one week prior. 18. That Petitioner’s representative reviewed Respondent’s policy entitled “Charity Care,” signed on August 5, 2013, after Respondent’s transfer and discharge of all prior residents, including eight (8) or more private pay residents, and noted as follows: a. Under the section “Eligibility”, the facility policy stated that an “unpaid account balance will be considered for write off as charity care or adjustment based on demonstrated need for financial assistance.” b. “Medicaid eligible residents who are currently eligible for benefits, but were not eligible at the time of service, will automatically qualify for charity care at the appropriate level”. 19. That Respondent admitted resident number one (1) on August 6, 2013, after it had successfully discharged all of the residents on August 2, 2013, including both publically funded (Medicaid and Medicare) and private pay residents. 20. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 11:45 A.M. and noted as follows: a. The resident was brought into the dining room by the aide. b. The resident was served a regular diet consisting of: grilled cheese sandwich, soup, ice cream, cake, juice, and milk. c. The aide removed the crusts from the sandwich and placed it in front of the resident. 21, . The resident required verbal cues to take a bite, and refused the soup. . The resident did not consume much of the lunch, less than 50%. The aide said the resident had snacks earlier. . The resident said “hello” to the surveyor, but other responses were incoherent, though the resident did state that the resident was “not doing well,” but could not elaborate why. . The resident was seated in a wheelchair with bilateral leg splints on, covered with shoes, was clean and dry, and without evidence of incontinence. That Petitioner’s representative interviewed Respondent’s social worker related to resident number one (1) on August 13, 2013 at 11:40 A.M. and again at 2:00 P.M. and noted as follows: She had been the Business Office Manager at the sister facility, where the resident came from. . She knew the power of attorney for the resident from that position. She was promoted to social worker about one half years ago, and had worked for the corporation for about five (5) years. . When asked about the details of the transfer of the resident to this facility, the social worker stated that she received a call from the Corporate nursing home administrator and was asked to identify residents at the resident’s prior facility that were listed as either “Medicaid pending” or private pay. When asked to see if there was anyone interested in transferring to this facility,” she identified the resident because the resident’s Medicaid ended the end of July, 2013, and was pending for August, 2013. She did not recall the date of the call from the nursing home administrator, but thought it might have been August 5, 2013, three days after the discharge of all the residents on August 2, 2013. g. She did not know why the resident lost Medicaid benefits. h. She recalled that someone asked the state agency that processes benefits to please advise about the loss of benefits and she got a response that a Financial Release form was not received within sixty (60) days. i. She did not know who would have been responsible at the prior facility. j- The sister facility, where the resident had resided, had a social worker that was no longer there. k. She was now sending a list of forms to the adult child of the resident that were needed for Medicaid benefits to be reestablished. |. She thought the process took three (3) to four (4) weeks. m. When asked for a date when the process of reapplication started, she did not remember, but then stated an e-mail went out on August 5, 2013. n. When asked if the resident was the only one that fit the transfer criteria, she stated that there were others but resident number one (1) was the only one not receiving Skilled Services. o. When asked if there were plans to admit other residents to the facility, the social worker stated “no.” p. When asked what the facility transfer benefit to the resident was, the social worker stated she did not know. 22. That “Skilled Services” is a Medicare term used to define a specific group of medically necessary therapies that include physical therapy, occupational therapy, and speech therapy. 23. That Petitioner’s representative noted in the medical records of resident number one (1) a physician’s telephone order dated August 6, 2013 at 10:56 A.M., the day the resident was admitted to the facility, directing to discontinue physical therapy services, a skilled service. It was signed by an unknown provider. 24. That Petitioner’s representative reviewed a form provided to the surveyors and a copy of an email dated August 5, 2013, and noted as follows: a. 25. The email dated August 13, 2013 at 11:26 A.M. from an Adult Economic Services worker to the social worker stated to send encrypted emails only and contained an attached file and a link to access accounts. At the bottom of the printed email is another email dated August 5, 2013 from this social worker inquiring about the status of resident number one (1). A second page, stapled to the email trail, is a “Provider Inquiry Sheet”. Under client name, the entry included the first name and last initial of resident number one (1). The column titled “Main Inquiry Reason” contained and entry stating "Coverage Inquiry/SOC amount." The column titled "Provider Question" stated “The Business office has notified me that [resident number one (1)’s] coverage will end on July 31, 2013. Please advise why and if we can reapply for [gender pronoun] (not the gender of resident number one [1]) ICP Benefits [as] is Long Term Care resident requires custodial care.” The far right hand column stated “Please reapply as we didn’t get a recent financial release form within 60 days from the date of application (5/6/13).” That Petitioner’s representative telephonically interviewed the adult child of, and also the power of attorney for, resident number one (1) on August 13, 2013 at 1:05 P.M. and noted as follows: a. The adult child stated “nothing was said” about the billing during the transfer process from the resident’s prior facility. b. The adult child stated twice that the child had no concerns with care at the prior facility. c. The resident had no medical conditions that required a private room, and was in a three bed ward at the prior facility. d. The adult child was approached at the prior facility by the social worker, the same one that is at this facility, and asked about moving the resident to this facility. e. The adult child was told the resident would receive one-on-one staffing care, a private room, and was told the resident was the “only one there.” f. The adult child expected the resident to be in this facility “about one month” and then would go back to the prior facility. g. The resident was “in [] own world” (mentally) and went “up and down the halls” in the prior facility. h. The adult child was asked to bring in some documents today, August 13, 2013, for the Medicaid application. i. The adult child thought that the child had faxed in something a few months ago to the other facility and did not have any other information. j. There was no financial arrangement with this facility and the adult child was not expecting a bill. k. The facility asked for Social Security information today and the adult child was looking for it. 26. The adult child confirmed that the resident did not need a private room medically and was “just old,” about to turn 90 years old. . The adult child did not know if the resident had a different physician. The adult child did not know why the Medicaid was discontinued at the prior facility, had no Medicaid phone number, no workers name, and was unfamiliar with how to contact them. That Petitioner’s representative further reviewed Respondent’s records related to resident number one (1) during the survey and noted as follows: 27, a. b. The resident had a consent to treat form, dated August 6, 2013 at 11:45 am. Verbal permission was given by telephone from the resident’s adult child/ power of attorney. A “Do Not Resuscitate” form was dated November 27, 2012. A Statement of Incapacity was dated March 28, 2012. Power of attorney paperwork listed the adult child. A physician’s telephone order dated August 6, 2013 at 10:56 a.m., the day of the transfer, stated to discontinue Physical Therapy. There was no further information regarding why the resident was receiving these services. A telephone order dated August 8, 2013, stated to discontinue a Wanderguard that had been used related to elopement risk. There were no further details as to whether the elopement behaviors continued. An unsigned copy of the new physician’s orders was in the chart dated August 6, 2013 That the long term care unit, where resident number one (1) currently resided, was as follows: a. Two of the three hallways had rooms dark, doors closed, and hallway lights dimmed. b. Other areas of the facility, a large single story building with 179 beds, had darkened, cavernous hallways, and a rehabilitation dining area between two long term care units was dark, and contained plastic covered equipment on the tables. c. The building was clearly empty, other than this one resident and the three staff members on the unit for the resident in room 111. 28. ‘That later in the day on August 13, 2013, Respondent’s director of nursing stated that the new physician had not visited the resident at this facility; the physician at the prior facility did not come to this facility; and therefore the resident had to change physicians. 29. That on or about August 13, 2013, Petitioner’s representative reviewed a physician’s progress note, dated August 1, 2012, which revealed that resident number one qd) was unable to participate in the MMSE screening tool as the resident’s dementia was too far advanced 30. That Petitioner’s representative interviewed Respondent’s director of nursing and nursing home administrator regarding resident number one (1) on August 13, 2013 at 2:26 P.M. and noted as follows: a. When asked how the resident came to be admitted the facility, the administrator stated the last resident was discharged under Agency oversight on August 2, 2013, and she was on her way back to the corporate office when she received a call from corporate counsel that the facility could accept private pay residents. b. The administrator was notified that the facility would be accepting a private pay resident on August 5, 2013 from a sister facility. 31. The administrator indicated the resident had lost Medicaid and was moved to Medicaid pending as the family had not provided paperwork on time. . The administrator indicated that the corporation had the idea that as it litigated the license for this facility, it could assist this family with long term care costs, and assist this facility while it litigated its license. When asked if it was the facility's intention to have only one resident, the administrator stated that it would like to admit more, but it “took the one resident.” When asked if she felt it was an advantage to the facility during litigation to have a resident at the facility, the administrator shrugged and stated that she did not know. When asked if this facility was recruiting residents from external sources such as hospitals, the administrator stated “no.” When asked about the financial arrangements with the resident, the administrator they were preventing the resident’s discharge or the family incurring large debt. The administrator indicated that the charitable policy was not offered to other residents at the sister facility because they were able to fill the beds. The resident would have received a 30 day notice had the resident had stayed in the sister facility. . When asked if the administrator was aware if the sister facility provided services in a timely manner to maintain the resident’s Medicaid eligibility, the administrator stated that she was not aware of the responsibility of the sister facility staff related to the process. That Petitioner’s representative telephonically interviewed the physician of 12 resident number one (1) on August 13, 2013 at 2:45 P.M. and noted as follows: 32. a. b. He had not visited the resident since the resident’s admission on August 6, 2013. He made rounds on Wednesday and intended to see the resident on August 14, 2013. He was aware that the physician’s orders were not signed yet. The physician stated that the advanced registered nurse practitioner had seen the resident on an unknown date and they were trying to locate a progress note. That there was no note in the medical record of resident number one (1) which would indicate that the resident had been seen in this facility by either a Physician or a Nurse Practitioner. 33. That Petitioner’s representative observed resident number one (1) on August 13, 2013 commencing at 2:40 P.M. and noted as follows: 34, a. The resident was in the hallway of the resident’s room, near the dining room, scooting the wheelchair with feet. The resident was using the hand rail on the left side to assist. An aide was nearby. The resident was confused with a vacant look to the face and eyes and did not respond to the surveyor's questions. The resident was unable, due to confusion, to express any anxiety, a diagnosed disorder, anguish, or satisfaction that the resident felt related to the new surroundings, new staff, and isolation due to the lack of any peers nearby. That on or about August 16, 2013, the Agency received and reviewed an eighty- six (86) page faxed document from Respondent and noted that page thirty-nine (39) was from a Multiple Data Set document, dated August 14, 2013, which stated “Factors that can Exacerbate Behavior” that contained four items checked: "Sleep Disturbances; Frustration due to problem communicating discomfort or unmet needs; Frustration, agitation R/T (related to) needs to urinate or have BM; Recent change, such as new admission, new unit, new care staff, withdrawal from a treatment program; and need for repositioning". 35. Since the resident had been moved to a new facility, had new caregivers, new surroundings, and a new physician, any of these factors could contribute to an unexpected decline. 36. That the above reflects Respondent’s failure to ensure resident rights to dignity where, inter alia, Respondent failed to respect the right to a dignified transfer process and a dignified quality of life for one of the residents currently residing in a facility with revoked Medicaid and Medicare certification including but not limited to the absent of socialization with peers, the failure to provide skilled services, the failure to ensure timely physician transfer and evaluation, the failure to note and address care and services related to new surroundings, staff, and withdrawn treatments. 37, That under Florida law, a Class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. § 400.23(8)(a), Fla. Stat. (2013). 38. That a class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency. § 400.23(8)(a), Fla. Stat. (2013). 39. The Respondents actions or inactions constituted an isolated Class I violation. 40. The Agency cited the Respondent for a class I violation. WHEREFORE, the Agency seeks to impose an administrative fine in the amount of ten thousand dollars ($10,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(8)(a), Florida Statutes (2013). COUNT II 41. The Agency re-alleges and incorporates paragraphs one (1) through three (3), and Count I of this Complaint as if fully recited herein. 42. That Respondent has been cited with one (1) State Class I deficiency and therefore is subject to a six (6) month survey cycle for a period of two years and a survey fee of six thousand dollars ($6,000) pursuant to Section 400.19(3), Florida Statutes (2013). WHEREFORE, the Agency intends to impose a six (6) month survey cycle for a period of two years and impose a survey fee in the amount of six thousand dollars ($6,000.00) against Respondent, a skilled nursing facility in the State of Florida, pursuant to Section 400.19(3), Florida Statutes (2013). COUNT Il 43. The Agency re-alleges and incorporates paragraphs one (1) through five (5), and Count I as if fully set forth herein. 44. Based upon Respondent’s one (1) cited State Class I deficiency, it was not in substantial compliance at the time of the survey with criteria established under Part II of Florida Statute 400, or the rules adopted by the Agency, a violation subjecting it to assignment of a conditional licensure status under § 400.23(7)(a), Florida Statutes (2012). 1S WHEREFORE, the Agency intends to assign a conditional licensure status to Respondent, a skilled nursing facility in the State of Florida, pursuant to § 400.23(7), Florida Statutes (2013). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks a final order that: 1. Makes findings of fact and conclusions of law in favor of the Agency. 2. Imposes the relief sought in the Administrative Complaint. Respectfully submitted on this / / day of October, 2013. ; a ff a Thomag/J/Walsh Il, Esquire Florida Bat No. 566365 Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive, 330G St. Petersburg, FL 33701 Telephone: (727) 552-1525 Facsimile: (727) 552-1440 walsht@myflorida.ahca.com DISPLAY OF LICENSE Pursuant to § 400.23(7)(e), Fla. Stat. (2012), Respondent shall post the most current license in a prominent place that is in clear and unobstructed public view, at or near, the place where residents are being admitted to the facility. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes. Respondent has the ri ght to retain, and be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the attention of: The Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Bldg #3, MS #3, Tallahassee, Fi Torida, 32308, (850) 412-3630. RESPONDENT IS FURTHER NOTIFIED THAT A REQUEST FOR HEARING MUST BE RECEIVED WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT OR WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has be: ed by US. Certified Mail, Return Receipt No: 7013 0600 0001 6664 9133 on October / /__, 2013 to Counsel for Petitioner, Anna G. Small, Esq., Allen Deli, P.A., 202 South Rome Avenue, Tampa, Florida 33606. Thomas J. Walsh, Il, Esquire f ye Copies furnished to: Patricia R. Caufman, FOM 17 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: Senior Care Group, Inc. CASE NO. 2013010196 d/b/a Lakeshore Villas Health Care Center ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)__—S—I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION LAKESHORE VILLAS HEALTH CARE CENTER, Petitioner, vs. STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. a STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent. Case No. 13-395PH AHCA No. 2013005471 ACHA No. 2013006461 ACHA No. 2013006462 EXHIBIT 2 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS, SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, Respondent, STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. ; SENIOR CARE GROUP, INC. d/b/a LAKESHORE VILLAS HEALTH CARE CENTER, — Respondent. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. SENIOR CARE GROUP, INC, d/b/a LAKESHORE VILLAS HEAL TH CARE CENTER, Respondent. SETTLEMENT AGREEMENT DOAH No. 14-248 ACHA No. 2013006534 DOAH No. 14-528 ACHA No. 2013007612 DOAH No. 14-521 ACHA No. 2013010196 State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Senior Care Group, Inc. d/b/a Lakeshore Villas Health Care Center (hereinafter “Lakeshore”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Lakeshore is a nursing home licensed pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes, Section 20.42, Florida Statutes and Chapter 59A-4, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Lakeshore, pursuant to Chapters 400, Part II, and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Lakeshore with a Notice of Intent to Deny dated May 22, 2013, in Agency case number 2013005471, notifying Lakeshore of the Agency's intent to deny the application for renewal of licensure for Lakeshore; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about April 12, 2013, (hereinafter “April Survey”), during which deficient practice was cited; and WHERMUAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the imposition of conditional licensure commencing April 12, 2013, in Case Number 2013006461; and WHEREAS, the Agency completed a survey of Lakeshore and its Facility on or about June 4, 2013, (hereinafter “June Survey”), during which deficient practice was cited; and WHEREAS the citation of the above referenced deficient practice subject Lakeshore to the imposition of administrative sanctions of one thousand dollars ($1,000.00) and the continued imposition of conditional licensure in Case Number 2013006462; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about July 26, 2013, in Agency case number 2013006534, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of two thousand five hundred dollars ($2,500.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about August 9; 2013, in Agency case number 2013007612, notifying Lakeshore of the Agency's intent to impose administrative sanctions of five thousand dollars ($5,000.00) and the continued imposition of conditional licensure; and WHEREAS, the Agency served Lakeshore with an administrative complaint on or about October 16, 2013, in Agency case number 2013010196, notifying Lakeshore of the Agency’s intent to impose administrative sanctions of ten thousand dollars ($10,000.00), the imposition of a six-month survey cycle and its six thousand dollar ($6,000.00) fee, and the continued imposition of conditional licensure; and WHEREAS, Lakeshore requested a formal administrative proceedings by selecting Option “3” on the Election of Rights form or by the filing of a Petition in Case Numbers 2013005471, 2013006534, 2013007612, and 2013010196; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and WHEREAS, Lakeshore has sought inactive licensure for its license, license number 1282096; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1, All recitals herein ave true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Lakeshore agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited {o, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120,57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which they may be entitled, provided, however, that no agreement herein shall be deemed a waiver by the parties of their right to judicial enforcement of this Agreement. Lakeshore specifically waives the necessity of the drafting of or service of an Administrative Complaint(s) for the relief stipulated to in this Agreement as the same relates to the April Survey and June Survey. 4. Upon full execution of this Agreement, the parties agree as follows: a. Lakeshore shall pay nineteen thousand five hundred dollars ($19,500.00) in administrative fines and a survey fee of six thousand dollars ($6,000.00), for a total monetary assessment of twenty-five thousand five hundred dollars ($25,500.00) to the Agency within thirty (30) days of the entry of the Final Order. Respondent also accepts the imposition of a six-month survey cycle and conditional licensure status commencing April 12, 2013. b. Lakeshore shall ensure that, on or before October [, 2014, an independent purchaser not affiliated with Lakeshore shall file a “Change of Ownership” application seeking the licensure currently held by Lakeshore. Lakeshore shall ensure any such applicant possess, at a minimum, the following qualifications: i. The applicant, or a controlling interest’ of the applicant, shall have been licensed, or be a controlling interest in an entity or entities which has been licensed, to operate a nursing home in the State of Florida pursuant to the provisions of Chapters 400, Part II, and 408, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code, for a continuous period of at least three (3) years prior to the filing of the application. ii. The nursing home or nursing homes of the applicant, or the nursing home or nursing homes in which the controlling interest of applicant are licensed as nursing home(s) or in which the controlling interest of applicant holds a - controlling interest in the licensed nursing home(s), shall not have been subject to a Class | or a widespread Class II deficient practice” within a three (3) year period predating the filing of the application for “Change of Ownership” licensure. c. Effective at 5:00 p.m., December 31, 2014, the nursing home license of Lakeshore, license number 1282096, shall be deemed relinquished and cancelled, unless the Agency has issued a "Change of Ownership” license to another person or entity to operate the facility. This date may be extended in the sole discretion of the Agency. Absent such extension, the licensure of Lakeshore shall be deemed relinquished and ‘ “Controlling Interest,” as utilized herein, means as defined in Section 408.803(5), Florida Statutes (2013). 2 “Patterned and widespread Class 1 and Class Il deficient practices” are defined in Section 400,23(8), Florida Statutes (2013). cancelled without regard to the'status, substantive or legal, of any pending licensure application related to the license currently held by Lakeshore, 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Lakeshore denies, and the Agency asserts the validity of the allegations raised in the administrative complaints and the Surveys referenced herein. No agreement made herein shall preclude the Agency from imposing a penalty against Lakeshore for any deficiency/violation of statute or rule identified in a future survey of Lakeshore, pursuant to the provisions of Chapters 400, Part II, 408, Part II, Florida Statutes, and Chapter S9A-4, Florida Administrative Code. In said event, Lakeshore retains the right to challenge the factual allegations related to the deficient practices/ violations alleged in the instant cause. 7. Lakeshore acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office fiom pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaints or Surveys, This agreement does not prohibit the Agency from taking action regarding Lakeshore’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shail enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases, 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Lakeshore for itself and for Lakeshore’s related or resulting organizations, successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative foram, including any claims arising out of this agreement, by or on behalf of Lakeshore or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Lakeshore was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9,.070, Florida Administrative Code. 14, Lakeshore agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Lakeshore in the Final Order, or any portion thereof, owed by Lakeshore to the Agency from any present or future funds owed to Lakeshore by the Agency, and that the Agency shall hold a lien against present and future funds owed to Lakeshore by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties, 17, This Agreement supersedes any prior oral or written agreements between the parties, 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement, Health Quality Assurance Agency for Health Care Administration 2727 Mahan Drive, Building #1 Tallahassee, Florida 32308 DATED: 3 [vs Im F, Williams, General Counsel Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS 43 Tallahassee, Florida 32308 Florida Bar No, 670731 DATED: 2G Anna Small, Esquire Allen Dell Counsel for Respondent 202 South Rome Avemue, Suite 100 Tampa, FL 33606 Florida Bar No. 17064 DATED: x04 Title: Name: Katherine idle 7s) Senior Care Group, Inc. DATED: _.3//i fl ¢ 4 7 y ff Thomas J. Walsh IJ, Senior Attorney Office of the General Counsel Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330G St. Petersburg, Florida 33701 Florida Bar No. 566365 DATED: 5//Z, 7 !
