13-002255 Agency For Health Care Administration vs. Jest Operating, Inc., D/B/A Somerset Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 6, 2014.

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STATE OF FLORIDA i p\\

AGENCY FOR HEALTH CARE ADMINISTRATION P:. rBCY CLERK

2014 APR I b P 1: 4 8

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Petitioner,

V. AHCA Case No. 2012012905

DOAH Case No. 13- 2255

JEST OPERATING, INC. d/ a b/ SOMERSET, RENDITION NO.: AHCA- iq - 031 S- OTC

Respondent.

FINAL ORDER

Having reviewed the Administrative Complaint, and all other matters of record, the Agency for

Health Care Administration finds and concludes as follows:

1. The Agency has jurisdiction over the above- named Respondent pursuant to Chapter 408,

Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions.

2. The Agency issued the attached Administrative Complaint and Election of Rights form to

the Respondent ( Ex. 1). The Election of Rights form advised of the right to an administrative hearing.

The Respondent initially chose a formal hearing but, during the pendency of discovery, agreed to settle.

3. The parties 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 Respondent shall pay the Agency $ 3, 00. 000. 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, Mail Stop 14

Tallahassee, Florida 32308

ORDERED at Tallahassee, Florida, on this _, ej:~ p day of 2014.

J

Elizabeth Dude Secretary

Agency for Healt Care Administration

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review, which shall be

instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy,

along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district be

where the Agency maintains its headquarters or where a party resides. Review of proceedings shall

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 yof Ana_, 2014.

Richard Agency Cler

Agency for Health Care Administration

2727 Mahan Drive, 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)

Dean F. DiBartolomeo, Esq. Andrew R. McCumber, Esq.

Law Offices of DiBartolomeo & DiBartolomeo E. Patrick Buntz, Esq.

8400 Bird Road McCumber, Daniels, Buntz, Hartig & Puig, P. A.

Miami, FL 33115 204 South Hoover Boulevard, Suite 130

U. S. Mail) Tampa, FL 33609

U. S. Mail)

Elizabeth Heiman, Administrator F. Scott Boyd

Jest Operating, Inc. d/ a b/ Somerset Administrative Law Judge

2450 Dora Avenue Division of Administrative Hearings

Tavares, FL 32778 Electronic Mail)

U. S. Mail)

Suzanne Suarez Hurley

Office of the General Counsel

Agency for Health Care Administration

Electronic Mail)

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Petitioner,

vse Case Noe: 2012012905

JEST OPERATING, INC. d/ a b/ SOMERSET,

Respondent.

ADMINISTRATIVE COMPLAINT

The State of Florida Agency for Health Care Administration ( hereinafter

Petitioner" or " Agency"), by and through the undersigned counsel, files this

Administrative Complaint against Jest Operating, Inc. d/ a b/ Somerset ( hereinafter

Respondent"), pursuant to Section § 120. 569 and Section § 120. 57, Fla. Stat. ( 2012), and

alleges:

NATURE OF THE ACTION

This is an action to impose an administrative fine in the amount of $ 2, 00 500. based

upon one State Class II deficiency pursuant to Section § 429. 2)( b), 19( Fla. Stat. ( 2012) and

the imposition of a survey fee of $ 500. 00 pursuant to the provisions of Section § 7), 429. 19(

Fla. Stat. ( 2012) for a total assessment of three thousand dollars ($ 3, 00). 000.

JURISDICTION AND VENUE

1. The Agency has jurisdiction pursuant to Section § 20. 42, Section § 120. 60 and

Chapters 408, Part II, and 429, Part I, Fla. Stat. ( 2012).

2. Venue lies pursuant to Florida Administrative Code Rule 28- 6. 20.

PAR' ITES

3. The Agency is the regulatory authority responsible for licensure of assisted living

facilities and enforcement of all applicable regulations, state statutes and rules governing

assisted living facilities pursuant to the Chapters 408, Part II, and 429, Part I, Florida

Statutes, and Chapter 58A- 5, Florida Administrative Code.

4. Respondent operates a 60- bed assisted living facility ( hereafter " ALF") located at

2450 Dora Avenue, Tavares, FL 32778, and is licensed as an ALF, license number 7472

hereafter " Facility").

5. Respondent was at all times material hereto a licensed facility under the licensing

authority of the Agency, and was required to comply with all applicable rules and statutes.

COUNT I - tag A0025

6. The Agency re- alleges and incorporates paragraphs one ( 1) through five ( 5) as if fully

set forth herein.

7. Pursuant to Florida law:

Resident Care Standards: An assisted living facility shall provide care and

services appropriate to the needs of residents accepted for admission to the

facility.

SUPERVISION. Facilities shall offer personal supervision, as

appropriate for each resident, including the following:

a) Monitor the quantity and quality of resident diets in accordance

with Rule 58A- 020, 5. F. C. A.

b) Daily observation by designated staff of the activities of the resident

while on the premises, and awareness of the general health, safety, and

physical and emotional well- being of the individual.

c) General awareness of the resident' s whereabouts. The resident may

travel independently in the community.

d) Contacting the resident' s health care provider and other appropriate

parry such as the resident' s family, guardian, health care surrogate, or

case manager if the resident exhibits a significant

the resident' s change; contacting

family, guardian, health care surrogate, or case manager

if the resident is discharged or moves out.

e) A written record, updated as needed, of any significant as

defined in subsection changes

resulted 58A- 0131( 5. 33), F. C., A. any illnesses which

in medical attention, major incidents, in the

of medication changes method

administration, or other changes which resulted in the

provision of additional services.

Fla. Admin. Code R. 58A- 0182( 5. 1)

Resident bifl of rights

1) No resident of a facility shall be deprived of any civil or legal

benefits, or privileges rights,

guaranteed by law, the Constitution of the State of

Florida, or the Constitution of the United States as a resident of a

Every resident of a shall have the facility.

facility right to:

a) Live in a safe and decent living environment, free from abuse and

neglect.

b) Be treated with consideration and respect and with due

of personal recognition

dignity, individuality, and the need for privacy.

c) Retain and use his or her own clothes and other personal

in his or her immediate property

living quarters, so as to maintain individuality

and personal dignity, except when the facility can demonstrate that

such would be unsafe, impractical, or an infringement the

of other residents. upon rights

d) Unrestricted private communication, including receiving and

sending unopened correspondence, access to a telephone, and visiting

with any person of his or her choice, at any time between the hours of

9 a. m. and 9 p. m. at a minimum. Upon request, the shall

provisions to extend facility make

visiting hours for caregivers and out- town of-

guests, and in other similar situations.

e) Freedom to participate in and benefit from community services and

activities and to achieve the highest possible level of

and interaction independence,

autonomy, within the community.

fl Manage his or her financial affairs unless the resident or, if

applicable, the resident' s representative, designee, surrogate, guardian,

or attorney in fact authorizes the administrator of the to

provide for facility

safekeeping funds as provided in s. 429. 27.

g) Share a room with his or her spouse if both are residents of the

facility.

h) Reasonable opportunity for regular exercise several times a week

and to be outdoors at regular and frequent intervals when

except

prevented by inclement weather.

i) Exercise civil and religious liberties, including the right to

independent personal decisions. No religious beliefs or practices, nor

any attendance at religious services, shall be imposed upon any

resident.

0) Access to adequate and appropriate health care consistent with

established and recognized standards within the community.

k) At least 45 days' notice of relocation or termination of residency

from the facility unless, for medical reasons, the resident is certified

a physician to an by

require emergency relocation to a facility providing a

more skilled level of care or the resident engages in a pattern of

conduct that is harmful or offensive to other residents. In the case of a

resident who has been adjudicated mentally incapacitated, the

guardian shall be given at least 45 days' notice of a nonemergency

relocation or residency termination. Reasons for relocation shall be set

forth in writing. In order fora facility to terminate the residency of an

individual without notice as provided herein, the facility shall show

good cause in a court of competent jurisdiction.

1) Present grievances and recommend changes in policies, procedures,

and services to the staff of the facility, governing officials, or any other

person without restraint, interference, coercion, discrimination, or

reprisal. Each facility shall establish a grievance procedure to facilitate

the residents' exercise of this right. This right includes access to

ombudsman volunteers and advocates and the right to be a member of,

to be active in, and to associate with advocacy or special interest

groups.

Section 429° 2g, Fla. Stat° ( 2012)

Violations; imposition of a strative fines; grounds

3) For purposes of this section, in determining if a penalty is to be imposed

and in fixing the amount of the fine, the agency shall consider the

factors: following

a) The gravity of the violation, including the probability that death or serious

physical or emotional harm to a resident will result or has resulted, the severity

of the action or potential harm, and the extent to which the provisions of the

applicable laws or rules were violated ( emphasis supplied).

b) Actions taken by the owner or administrator to correct violations.

c) Any previous violations.

d) The financial benefit to the facility of committing or continuing the

violation.

e) The licensed capacity of the facility.

4) Each day of continuing violation after the date fixed for termination of the

violation, as ordered by the agency, constitutes an additional, separate, and

distinct violation.

5) Any action taken to correct a violation shall be documented in writing by

the owner or administrator of the facility and verified visits

by through followup

agency personnel. The agency may impose a fine and, in the case of an

owner- operated facility, revoke or deny a facility' s license when a facility

administrator fraudulently misrepresents action taken to correct a violation.

Section 429819, Fla. Stato ( 2012)

8. On September 12, 2012, the Agency conducted a

complaint inspection, CCR

2012009914, of Respondent' s assisted living facility, and found it out of compliance with

the above statutes and rule.

9. Based on observation, record review and an the did not

interview, facility provide

care, services or supervision appropriate to the needs of all of its residents. Findings

included:

Facility records showed that Resident # 1 had been diagnosed with dementia,

Vitamin B12 deficiency; hyperlipidemia and chronic kidney disease (

III), renal and Stage

insufficiency incontinence. He was a fall risk and had a history

of falling in the facility. An elderly gentleman, more than 90 his

Health years old,

May 15, 2009, Assessment Form 1823 indicated that he needed

assistance with ambulation, bathing, dressing, toileting, transferring,

grooming and eating. He needed " daily oversight."

A second Form 1823, dated April 8, 2010, noted a few His

were listed changes:

diagnoses as 1) altered mental status - " confused;" 2) acute

chronic renal failure; 3) hyperchloremia; 14) and

dehydration. The leukocytosis; 2 5)

physician filling out the form required 24- hour nursing or

psychiatric care.

Resident # I' s nurses notes included:

03/ 12 14/ ARNP S Pressley saw the resident slow

Same regarding respirations.

orders, same weds to be continued.

04/ 12 05/ 10: 30 PM. Resident found next to his bed on R side.

had a small skin lying He

tear on R knee and R hand and small abrasion

on forehead. Areas cleaned and bandaged. B/ P: 121/ 64.

04/ 12 07/ Had Chest Xray for congestion and

cough.

04/ 12 10/ ARNP follow up visit re abnormal Chest Resident

Xray. taking

Levaquin antibiotic.

04/ 12 22/ Pitting edema at lower legs. Skin warm,

dry.

04/ 12 24/ ARNP saw resident re pedal edema. Meds ordered.

04/ 12 27/ 1: 30 AM. Resident got up out of bed and fell over recliner in

room. Has his

three abrasions - one on each knee; one on R

knuckle. All abrasions cleansed and bandaged. B/ P: 85/ 67.

05105112 Seen by ARNP re bilat edema. Doppler ordered. Lasix &

potassium ordered for 7 days, then PRN.

07/ 12 10/ Resident straightened up while being put to bed and hit his

head on wall.

NO DOCUMENTATION WAS IN THE NURSES NOTES FOR 2012.

AUGUST,

08/ 12 30/ Resident exhibited signs and symptoms of a fall ( see below interview

with CNA). Had large braise 3 x12 inches across R chest,

through armpit to back. This was not extending

reported and not documented.]

09/ 12 01/ LPN ( facility nurse) wrote " CNA advised that resident had

bruising under R arm & R upper chest. Etiology unknown."

3: 00 PM. Chest X- rays were done. Mobile X came to

facility.

i Hyperchloremia is an

electrolyte imbalance caused by a high level of chloride in the blood. It can cause agitation,

tachycardia, hypertension, pitting edema and dyspnea. It is associated with metabolic acidosis and induces

rapid breathing; weakness, diminished cognitive ability, and, coma. deep,

Lippincott Williams & Wilkins, ( ultimately, Professional Guide to Diseases,

2012).

2 Leukocytosis can be caused

disorders. by infections or inflammatory processes but can also be caused by bone marrow

Nov. 1, 2000, Journal of the American Academy of Family Physicians.

09/ 12 02/ 3: 30 PM. The resident was " gurgling" and short of

EMS was breath.

called, the resident was transferred to hospital.

EMS Report showed that he was found in

a respiratory distress,

suctioned, given sedative, intubated, placed on oxygen and

transferred.

09/ 12 04/ Resident expired.

Facility records showed that, on August 30, 2012, while changing Resident

1' s diaper, a certified nursing assistant (" found a

inches CNA") large bruise, 3 x 12

long running horizontally from Resident # I' s chest to his back, at

chest level. During an interview, the CNA (" D said that Resident # 1

not talk and could does

not tell him how he got the bruise. CNA " D" told the

lead CNA" (" C") about the bruise as it was her to

nurse. responsibility notify the

Lead" CNA " C" said that, when any resident is found with an

injury, the facility unexplained

policy requires that the injury be reported immediately to

the nurse on duty. However, despite the resident' s bruised

his condition and his large area, his age,

history of falling, neither she nor CNA ` D" reported the

bruise to the facility nurse.

CNA # C admitted that CNA # D told her about Resident 1' s bruise on

August 30 but said " she told him to report it." " None of the staff saw or knew

if [ Resident # 1] had fallen," but " if he did fall, he had the to

up by she said. strength get back

himself,"

The bruising, a clear indication of a fall with injuries, was

another CNA two later finally reported by

days on September 1, 2012, during the 11: 00 PM -

7: 00 AM shift ( see above nursing notes for 09/ 12). 01/

10. The Respondent' s failure to assure the resident' s the

safety by notifying nurse of the

resident' s bruises in accord with facility policy is unacceptable and the

placed resident at risk

of harm associated with internal bleeding and other risks. The

facility' s failure to

immediately report such a large bruise when the affected resident had a history of falls

amounts to inadequate care and inadequate supervision to meet the residents'

needs.

11. The Agency determined that this deficient practice was related to the

operation and

maintenance of the Facility, or to the personal care of Facility residents, and

directly

threatened the physical or emotional health, safety, or security of the residents.

Facility

12. The Agency cited the Respondent for a Class II violation in

accordance with Section

429. 2)( 19( b), Florida Statutes ( 2012).

13. The failures cited in # 10 above establish for

grounds aggravation and support an

increase in the penalty imposed by the Agency. See Section §

429. 3)( 19( a), Fla. Stat. ( 2012).

WHEREFORE, the Agency intends to impose an administrative fine in the amount

of two thousand five hundred dollars ($

2, 00), 500. against Respondent, an ALF in the State

of Florida, pursuant to Section 429. 2)( 19( b), Florida Statutes (

2012).

COUNT II

14. The Agency re- alleges and incorporates the of this

entirely complaint as if fully set

forth herein.

15. Pursuant to Section § 429. 7), 19( Florida Statutes: "[

i] n addition to any administrative

fines imposed, the agency may assess a survey fee, to the lesser of

equal one half of the

facility' s biennial license and bed fee or $ 500, to cover the cost of initial

conducting

complaint investigations that result in the finding of a violation that was the of the

subject

complaint or monitoring visits conducted under s. 429. 3)( c) 28( to verify the correction of the

violations."

16. On September 12, 2012, the Agency conducted a

complaint inspection, CCR

2012009914, of Respondent' s facility that resulted in violations found that are the

subject

of the complaint to the Agency.

17. Pursuant to Section § 429. 7), 19( Fla. Stat. ( 2012), such a

finding subjects the

Respondent to a survey fee equal to the lesser of one half of the Respondent' s biennial

license and bed fee or five hundred dollars ($ 500. 00).

18. Respondent is therefore subject to a complaint fee of five

survey hundred dollars

500. 00), pursuant to Section § 429. 7), 19( Fla. Stat. ( 2012).

WHEREFORE, the Agency intends to impose an additional survey fee of five

hundred dollars ($ 500. 00) against Respondent, an ALF in the State of

Florida, pursuant to

Section § 429. 7), 19( Florida Statutes ( 2012).

NOTICE OF RIGHTS

Respondent is notified of its right to request an administrative hearing pursuant to §

Florida Statutes. Respondent has the to 120. 569,

right 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 Agency for Health Care

delivered to for Administration, and

Agency Clerk, Agency Health Care Administration, 2727 Mahan Drive,

Bldg. # 3, MS # 3, Tallahassee, FL 32308; Telephone ( 850) 412- 3630.

RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO A

HEARING WITHIN 21 DAYS OF REQUEST

RECEIPT OF THIS COMPLAINT 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 Administrative

Complaint has been served by U. S. Certified Mail, Return Receipt No. 7011 0470 0000

7951 3098, to Joseph Dibartolomeo, Registered Agent, 8400 Bird FL

Road, Miami, 33155,

and by regular U. S. Mail to Elizabeth Heiman, Administrator, 2450 Dora

Somerset,

Avenue, Tavares, FL 32778, thix, day of March, 2013.

STATE O) F, FLORH7A, AGENCY FOR

tiE1 ril(

7MINISTRATION ~§

uzaine Suarez Hurley, 4. 1s,

Assistant ; eneral Counsel:

Flaj, Bar o. 0985775

525 Mirror Lake Dr. N., Suite 330H

St. Petersburg, Florida 33701

727) 552- 1945; Fax: ( 727) 552- 1440

suzanne. myflorida. hurley@ahca. com

Copy to Kris Mennella, FOM

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

RE: JEST OPERATING, INC. d/ a b/ SOMERSET CASE

No. e2012012905

ELECTION OF RIGHTS

This Election of Rights form is attached to a proposed action the for

Administration ( by Agency Health Care

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 of the

receive the attached Notice days day you

of Intent to Impose a Late Fee Notice of Intent to Im pose a Late

Fine or Administrative Complaint

If your Election of Rights with your selected option is not received AHCA within

one ( from the date by twenty-

21) days 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 to

Chapter120, Florida Statutes ( and Rule according

2006) 28, Florida Administrative Code.)

PLEASE RETURN YOUR ELECTION OF RIGIITS TO THIS ADDRESS:

Agency for Health Care Administration

Attention: Agency Clerk

2727 Mahan Drive, Mail Stop 43

Tallahassee, Florida 32308.

Phone: [phone]- Fax: [phone]-

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 and I waive

right to and to have a Complaint my

object 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 the fine or

action. imposes penalty,

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. 2), 57(

Florida Statutes) where I may submit testimony and written evidence to the to show that

the proposed administrative action is too Agency

severe or that the fine should be reduced.

OPTION THREE ( 3) I dispute the allegations of fact contained in the Notice of

Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative

Complaint, and I request a formal hearing ( pursuant to Subsection 120. 1), 57( 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. 1), 57( 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- 2015, 106. 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:

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADNUNISTRATION

STATE OF FLORIDA, AGENCY FOR

HEALTH CARE ADMINISTRATION,

Petitioner,

DOAH Case No. 13- 2255

vs. AHCA Case No. 2012012905

I

JEST OPERATING, INC. d/ a b/

SOMERSET,

Respondent.

I

SETTLEMENT AGREEMENT

The Florida Agency for Health Care Administration ( here, " the Agency"), by and through

the undersigned representatives, and the Respondent, Jest Operating, Inc. d/ a b/ Somerset ( here,

Respondent"), pursuant to Section 120. 4), 57( Florida Statutes, each individually a " party," and

collectively as " parties," enter into this Settlement Agreement (" Agreement") as follows:

WHEREAS, Respondent is an assisted living facility licensed pursuant to Chapters 429,

Part I, and 408, Part 11, Florida Statutes, Section 20. 42, Florida Statutes and Chapter 58A- 5,

Florida Administrative Code; and

WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing j

authority over Respondent, pursuant to Chapters 429, Part I, and 408, Part 11, Florida Statutes;

and

WHEREAS, the Agency served Respondent with an administrative complaint on March

28, 2013, notifying the Respondent of its intent to impose an administrative fine in the amount of

2, 00 500. and a survey fee of $ 500. 00, for a total assessment of $ 00; 3, 000. a

EXHIBW2

f

WHEREAS, the parties have negotiated in good faith and the best interests of all the

parties will be served by a settlement of the issues presented in the referenced amended

administrative complaint and notice of intent to deny; and

NOW THEREFORE, in consideration of the mutual promises and recitals herein, the

parties intending to be legally bound, agree as follows:

1. All recitals herein are true and correct and are expressly incorporated herein.

2. Both parties agree that the " whereas" clauses incorporated herein are binding

findings of the parties.

i

3. Conditioned upon paragraph # 6 below, upon full execution of this Agreement,

i

Respondent agrees to waive any and all appeals and proceedings to which it may be entitled

including, but not limited to, an informal proceeding under Subsection 120. 2), 57( Florida

Statutes, a formal proceeding under Subsection 120. 1), 57( Florida Statutes, appeals under

Section 120. 68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-

court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order

findings of fact and conclusions of law) to which it may be entitled, provided, however, that no

agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of

this Agreement.

4. Upon full execution of this Agreement, Respondent agrees to pay an

administrative fine of $ 00 2, 500. and survey fee of $ 500. 00, a total of $ 3, 00 000. to the Agency

within 30 days of the entry of the Final Order. i

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.

ttAHCA v. jest Operating, Inc. d/ a b/ Somerset, Page 2 of 6 j~

DOM Case No. 13- 2255; AHCA Case No. 2012012905 j

6. By executing this Agreement, Respondent denies the allegations of fact and law

related to the Class II deficiency, including but not limited to the Agency' s determination of the

gravity of the violation, including the probability that death or serious physical or emotional

harm to a resident will result or has resulted, the severity of the action or potential harm, and the

extent to which the provisions of the applicable laws or rules were violated, which Respondent

believes is a Class III deficiency at most.' The Agency asserts the validity of the classification

i

and the allegations raised in the administrative complaint referenced herein. No agreement made

herein shall preclude the Agency from imposing a penalty against Respondent for any

deficiency/ violation of statute or rule identified in a future survey of Respondent, pursuant to the

provisions of Chapters 429, Part I, 448, Part II, Florida Statutes, and Chapter 58A- 5, Florida

Administrative Code, which constitutes a " uncorrected" deficiency of the survey identified in the

administrative complaint. Furthermore, the Respondent retains the right to administratively

challenge the factual allegations related to the deficient practice and/ or the violations alleged in

the instant cause should the same be asserted to support future administrative action.

Notwithstanding anything contrary contained herein, the parties agree ( i) that the facts alleged in

the instant case and the alleged deficient practice shall not constitute the sole grounds for

subsequent action by the Agency; and ( ii) that the subject resident' s entire residencies at

s

Somerset shall not be a sole basis for further regulatory or other action by the Agency against the

Respondent..

7. Conditioned upon paragraph ( 6) above, no agreement made herein shall preclude

the Agency from using the deficiencies from the surveys identified in the administrative

complaint in any decision regarding licensure of Respondent, including, but not limited to, a

Both deficient practices cited at the September 9, 2012, survey - tags A025 and A076 - were deemed " corrected"

by the Agency at the subsequent survey on November 6, 2012. li

AHCA v. lest operating, Inc. d/ a b/ Somerset Page 3 of 6

DOAH Case No. 13- 2255; AHCA Case No. 2012012905

aF

demonstrated pattern of deficient performance. The Agency is not precluded from using the

subject events for any purpose within the jurisdiction of the Agency. Further, Respondent

acknowledges and agrees that this Agreement may not preclude or estop any other federal, state,

or f

local agency or office from pursuing any cause of action or taking any action, even if based on

or arising from, in whole or in part, the facts raised in the administrative complaint. This

agreement does not prohibit the Agency from taking action regarding Respondent' s Medicaid

provider status, conditions, requirements or contract. Notwithstanding anything contrary

contained herein, the parties agree ( i) that the facts alleged in the instant case and the alleged

deficient practice shall not constitute the sole grounds for subsequent action by the Agency; and

ii) that the subject resident' s entire residencies at Somerset shall not be a sole basis for further

regulatory or other action the the i

by Agency against Respondent.

8. Upon full execution of this Agreement, the Agency shall enter a Final Order

adopting and incorporating the terms of this Agreement and closing the above- styled 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

f

by all the parties.

11. Respondent itself and for its related or resulting organizations, its successors or

transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of

for Health Care and its I

Florida, Agency Administration, 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 i

AHCA v. lest Operating, Inc. d/ a b/ Somerset; Page 4 of 6

DOAH Case No. 13- 2255; AHCA Case No. 2012012905

t e

i

federal or state court or administrative forum, including any claims arising out of this agreement,

by or on behalf of Respondent or related facilities. f

12. This Agreement is binding upon all parties herein and those identified in

paragraph 11 of this Agreement.

13. In the event that Respondent was a Medicaid provider at the subject time of the

occurrences alleged in the complaint herein, this settlement does not prevent the Agency from

seeking Medicaid overpayments related to the subject issues or from imposing any sanctions

i

pursuant to Florida Administrative Code Rule 59G- 070. 9.

14. Respondent agrees that if any funds to be paid under this agreement to the Agency

are not paid within thirty- one ( 31) days of entry of the Final Order in this matter, the Agency

may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof,

owed by Respondent to the Agency from any present or future funds owed to Respondent by the

i

Agency, and that the Agency shall hold a lien against present and future funds owed to

Respondent by the Agency for said amounts until paid.

15. The Respondent has read and understands this Agreement and has voluntarily

i

chosen to execute this agreement.

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

i i

parties; it resolves and settles the matters raised by both cases identified with the case numbers

noted above.

18. This Agreement may not be amended except in writing. Any attempted

assignment of this Agreement shall be void.

G

AHCA v, lest Operating, Inc. d/ a b/ Somerset; Page 5 of 6

DOAH Case No. 13- 2255; AHCA Case No. 2012012905

i

fI I

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. i

i

Molly Me try, Deputy Secretary Andrew R. McCumber, Esq.

Health Qua ' Assurance Patrick Buntz, Esq.

Agency or Health Care Administration Counsel for Jest Operating, Inc. d/ a b/ Somerset

2727 Mahan Drive, Building # 1 McCumber, Daniels, Buntz, Hartig & Puig, P. A.

Tallahassee, FL 32308 204 South Hoover Boulevard, Suite 130

Tampa, FL 33609

00, J

DATED. DATED: 3~

Stuart . illiams, General Counsel eiman, Administrator

Office of the General Counsel Jest ElizV ng, Tnc. b/ d/ a Somerset

Florida Bar No. 0670731 2450 Dora Avenue

Agency for Health Care Administration Tavares, FL 32778

2727 Mahan Drive, MS 43

Tallahassee, FL 3230

DATED: DATED;

r,

Susanne S ley, Senior rney Dean F, DiBartolomeo, Esq.

Of qc of t: he eneral Counsel Jest Inc. d/ a b/ Somerset

Flori o. 0985775 I Laxv Operating, Offices of DiBartolomeo & DiBartolomeo

Agency for Health Care Administration 8400 Bird Road

525 Mirror Lake Drive North, Suite 330H Miami, Fl. 33115

St, Petersburg, FL 33701

DATED: C"?) . --- A DATED: O 3 . _ f I a70/~{

t

AHCA v. Jest operating, Inc. d/ a b/ Somerset; Page 6 of 6

DOAH Case No. 13- 2255; AHCA Case No. 2012012905