01-000697 Agency For Health Care Administration vs. Health Care And Retirement Corporation Of America, D/B/A Heartland Of St. Petersburg Status: Closed Recommended Order on Wednesday, August 1, 2001.

Summary: Nursing home complied with rules related to advance directives, care plan, and nursing services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 01-0697

)

HEALTH CARE AND RETIREMENT )

CORPORATION OF AMERICA, d/b/a )

HEARTLAND OF ST. PETERSBURG, )

)

Respondent. )

______________________ )

RECOMMENDED ORDER

On April 30, 2001, a formal administrative hearing in this

case was held in Largo, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner : Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, Room 310G

St. Petersburg, Florida 33701

For Respondent : Alfred W. Clark, Esquire

117 South Gadsden Street, Suite 201

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint filed by the Petitioner against the

Respondent are correct and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed on January 19, 2001, the

Agency for Health Care Administration (Petitioner) alleged that

Health Care and Retirement Corporation of America d/b/a

Heartland of St. Petersburg (Respondent) had violated various

provisions of Florida Statutes and the Florida Administrative

Code. By Petition for Formal Administrative Proceeding dated

February 8, 2001, the Respondent challenged the allegations and

requested a formal hearing. The Petitioner forwarded the

request to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

The Administrative Complaint was filed following the death

of a resident of the Respondent's nursing home. In order to

protect the resident's right to privacy, this Recommended Order

does not identify the resident by name.

Following the resident's death, the Petitioner conducted an

inspection of the nursing home and cited the facility for

alleged violations of state statutes and rules related to the

incident. Specifically, the Petitioner alleges that the

Respondent did not have policies and procedures for prompt

identification of residents with advance directives and for

implementation of such directives in an emergency. The

Petitioner alleges that the Respondent failed to follow policies

and procedures for obstructed airway management and did not have

a policy and protocol for nursing service response during a

medical emergency. The Petitioner further alleges that the

Respondent failed to develop a comprehensive care plan for the

resident, who had been identified as having chewing and

swallowing problems.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits numbered 1 and 5-7 admitted into

evidence. The Respondent presented the testimony of three

witnesses and had Exhibits numbered 1-3 admitted into evidence.

A Transcript of the hearing was filed on July 15, 2001.

Both parties filed Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for

licensure and regulation of nursing homes operating in the State

of Florida.

2. The Respondent operates a licensed nursing home at

1001 9th Street North in St. Petersburg, Florida.

3. At approximately 7:00 p.m. on May 31, 2000, a certified

nursing assistant ( CNA) was feeding a resident of the nursing

home an appropriate soft food meal. During the feeding, the

resident began to gasp.

4. At the time of the incident, the CNA who was feeding

the resident had received training related to feeding this

resident. The CNA had fed the resident previously without

incident. At the time of the event, another CNA was also

present in the room.

5. An off-duty nurse walking by the resident's room saw

the situation, and because the resident was seated with a food

tray before her, assumed that the resident was choking. The

nurse responded to the situation by performing a finger sweep of

the mouth to locate food, and then performing a " Heimlich"

maneuver.

6. Because no food was located during the finger sweep or

expelled after the " Heimlich" the nurse concluded that the

resident was not choking. She also became aware that the

resident was not breathing.

7. The off-duty nurse lowered the resident's bed and began

to perform emergency CPR. She also directed one of the CNA's

present to call for the on-duty nurse.

8. The on-duty nurse arrived shortly thereafter and began

assisting with the CPR, using an " ambu-bag."

9. Both nurses have substantial experience in nursing and

as caregivers in nursing homes. There is no credible evidence

that the nurses were unqualified or lacked appropriate training

for their responsibilities.

10. While performing the CPR, the off-duty nurse asked the

on-duty nurse to determine whether the resident had "advance

directive" information in her file.

11. The on-duty nurse stopped using the " ambu-bag" and

went to the nurse's station approximately 30 feet from the

resident's room, determined that the resident had a "living

will" on file, and returned to the resident's room to inform the

off-duty nurse.

12. Although there was a "living will" in the patient's

file, there was no order prohibiting efforts to resuscitate the

resident (commonly called a " DNR") and therefore such emergency

procedures were appropriate; however, at the time the off-duty

nurse initiated the CPR effort, the resident's status had not

been determined.

13. Upon the return of the on-duty nurse, the off-duty

nurse stopped performing CPR and went to the nurse's station to

review the paperwork in the resident's file after which she

called the facility's director of nursing to report the

situation.

14. When the nurse halted her CPR effort, she had been

administering "chest massage" for approximately three minutes

and had gotten no response from the patient.

15. The director of nursing told the nurse to immediately

call 911 for emergency assistance. As directed, the off-duty

nurse called 911, reported the information, and returned to the

resident's room to resume her CPR effort.

16. An EMT team arrived at the facility quickly after the

nurse's telephone call. The EMT personnel unsuccessfully

attempted to intubate the resident, and ultimately were unable

to revive her.

17. Approximately 25 minutes elapsed from initiation of

efforts by the off-duty nurse to the EMT personnel determination

to halt resuscitation attempts.

18. The resident suffered from end-stage Parkinson's

disease. According to the Certificate of Death, the immediate

cause of death is listed as "debility of age."

19. There is no evidence that the employees of the nursing

home were the cause of or contributed to the resident's death.

There is no evidence that the resident choked on food. There is

no evidence that resident’s "gasping" sounds were caused by any

foreign obstruction within her airway.

20. The facility properly notified the Petitioner of the

incident. The Petitioner conducted an investigation on June 2,

2000. The results of the inquiry were set forth on a form

identified as a " HCFA 2567" which identifies alleged

deficiencies in the Respondent's procedures and activities

related to the resident's death.

21. Deficiencies are identified on a "2567" form as

"tags." Such alleged deficiencies also include a narrative

description of the Petitioner's review and citation to a

provision of the Florida Administrative Code rule. Insofar as

relevant to this proceeding, the "2567" form identifies tags

F156 and F280.

TAG F156

22. Tag F156 alleges that the Respondent failed to "employ

a system which ensured the prompt identification of residents

who had formulated advance directives for purposes of

implementation. The Petitioner charges that the Respondent

failed to have policies and procedures for prompt identification

of residents who had formulated advance directives for purposes

of implementation, especially during an emergency.

23. The Respondent maintained records of each resident's

advance directive information in a red folder contained within

the resident's medical file. The files were maintained at the

nurse's station to facilitate immediate location and provide for

a proper response by facility staff. Such record maintenance

provided access to information for medical staff while

maintaining each resident's rights to privacy. The evidence

fails to establish that the facility's system did not provide

for "prompt identification of residents who had formulated

advance directives for purposes of implementation."

TAG F280

24. Tag F280 alleges that the Respondent failed to review

and revise the comprehensive interdisciplinary care plan for the

resident to indicate chewing and swallowing problems. The tag

also states that "the staff did not implement use of

compensatory safe swallow techniques as recommended by the

speech language pathologist, resulting in an emergency choking

situation which compromised the life of a resident."

25. The Petitioner charges that the Respondent failed to

develop a comprehensive care plan for the resident "who was

identified with chewing and swallowing problem."

26. The evidence establishes that the interdisciplinary

care plan prepared for the resident appropriately addresses the

resident's potential for chewing and swallowing difficulty. The

care plan identifies the specific steps to be taken in providing

nutrition to the resident, including the type of diet, the

positioning of the resident's body for feeding, the actual

timing of food provision, and indicates that observation is

required to ascertain whether the resident was aspirating or

choking. The care plan set forth goals for nutrition

consumption and established a deadline for achieving the goal

with the resident.

Tag 281

27. At the hearing, the Petitioner initially indicated

that Tag F281 was not at issue in this proceeding. The

Administrative Complaint alleges that the Respondent failed to

follow the policies and procedures for obstructed airway

management and did not have a system-wide policy and protocol

for how nursing services respond during medical emergencies.

Evidence was presented at the hearing related to this issue,

which appears to be included within Tag F281. Accordingly, the

following findings of fact are set forth.

28. There is no evidence that the facility failed to

maintain policies and procedures in the area of nursing

services. The facility policy related to obstructed airway

management is set forth in the "Nursing Policy & Procedure

Manual." The types of maneuvers identified as appropriate are

"abdominal thrusts" and "finger sweeps." An "abdominal thrust"

is commonly referred to as a " Heimlich" maneuver.

29. There is further no evidence that the off-duty nurse

failed to follow the facility policy on obstructed airway

management. The greater weight of the evidence establishes that

the off-duty nurse appropriately performed both procedures on

the resident prior to initiation of CPR activities.

30. As to the provision of CPR, the off-duty nurse's CPR

certification had expired at the time of the incident, but there

is no evidence that she administered the CPR incorrectly during

the time her efforts were made.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

32. The Petitioner has the burden of establishing by a

preponderance of the evidence, entitlement to the relief sought.

Florida Department of Transportation v. JWC Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981). Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

In this case, the burden has not been met.

33. The Petitioner asserts that the deficiencies at issue

in this proceeding are violations of Sections 400.102, 400.121,

and 400.23, Florida Statutes.

34. Section 400.102, Florida Statutes, sets forth grounds

for action by the agency against a licensee. Such grounds in

relevant part include "an intentional or negligent act

materially affecting the health or safety of residents of the

facility" and violations of the Petitioner's rules.

35. Section 400.121(1), Florida Statutes, provides that

the Petitioner may impose an administrative fine "not to exceed

$500 per violation per day, for a violation of any provision of"

Section 400.102, Florida Statutes. Section 400.121(2), Florida

Statutes, provides that the Petitioner may "as part of any final

order issued by it under this part" impose "such fine as it

deems proper, except that such fine may not exceed $500 for each

violation." The section further provides that "[e ] ach day a

violation of this part occurs constitutes a separate violation

and is subject to a separate fine, but in no event may any fine

aggregate more than $5,000. A fine may be levied pursuant to

this section in lieu of and notwithstanding the provisions of s.

400.23."

36. Section 400.23, Florida Statutes, provides for

classification of deficiencies according to the risk posed to

residents of a facility. Section 400.23(8)(a) provides as

follows:

Class I deficiencies are those which the

agency determines present an imminent danger

to the residents or guests of the nursing

home facility or a substantial probability

that death or serious physical harm would

result therefrom. 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.

Notwithstanding s. 400.121(2), a class I

deficiency is subject to a civil penalty in

an amount not less than $5,000 and not

exceeding $25,000 for each and every

deficiency. A fine may be levied

notwithstanding the correction of the

deficiency.

37. The deficiencies in this case are identified as

Class I deficiencies.

38. The Administrative Complaint charges that the

Respondent failed to have policies and procedures for prompt

identification of residents who had formulated advance

directives for purposes of implementation, especially during an

emergency. The Petitioner asserts that such deficiency is a

violation of Rule 59A-4.106(6), Florida Administrative Code.

39. Rule 59A-4.106(6), Florida Administrative Code,

provides as follows:

Each nursing home shall have written

policies and procedures, which delineate the

nursing home’s position with respect to the

state law and rules relative to advance

directives. The policies shall not

condition treatment or admission upon

whether or not the individual has executed

or waived an advance directive. In the

event of conflict between the facilities

policies and procedures and the individual’s

advance directive, provision should be made

in accordance with section 765.308, Florida

Statutes.

40. The evidence fails to establish that the facility's

system did not provide for "prompt identification of residents

who had formulated advance directives for purposes of

implementation." The evidence also fails to establish that the

facility failed to comply with the requirements of Rule 59A-

4.106(6), Florida Administrative Code.

41. The Administrative Complaint charges that the

Respondent failed to develop a comprehensive care plan for the

resident "who was identified with chewing and swallowing

problem." The Administrative Complaint fails to cite a specific

rule applicable to the alleged deficiency, but Rule 59A-

4.109(2), Florida Administrative Code, provides as follows:

The facility is responsible to develop a

comprehensive care plan for each resident

that includes measurable objectives and

timetables to meet a resident’s medical,

nursing, mental and psychosocial needs that

are identified in the comprehensive

assessment. The care plan must describe the

services that are to be furnished to attain

or maintain the resident’s highest practical

physical, mental and social well-being. The

care plan must be completed within 7 days

after completion of the resident assessment.

42. The evidence establishes that the care plan provided

for the resident appropriately addresses the resident's

potential for chewing and swallowing difficulty.

43. The Administrative Complaint charges that the

Respondent failed to follow the policies and procedures for

obstructed airway management and did not have a system-wide

policy and protocol for how nursing services respond during

medical emergencies. In the Administrative Complaint, the

Petitioner asserts that such deficiency is a violation of Rule

59A-4.106(4)(n), Florida Administrative Code . The cited section

requires that the facility maintain policies and procedures

related to "loss of power, water, air conditioning or heating."

It appears that the applicable section is Rule 59A-4.106(4)(r),

Florida Administrative Code, which requires that each facility

maintain policies and procedures in the area of nursing

services.

44. There is no evidence that the facility failed to

maintain policies and procedures in the area of nursing

services. The facility policy related to obstructed airway

management is set forth in the "Nursing Policy & Procedure

Manual." There is no evidence that the off-duty nurse failed to

follow the facility policy on obstructed airway management.

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 dismissing the Administrative

Complaint filed in this case.

DONE AND ENTERED this 1st day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of August, 2001.

COPIES FURNISHED :

Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, Room 310G

St. Petersburg, Florida 33701

Alfred W. Clark, Esquire

117 South Gadsden Street, Suite 201

Tallahassee, Florida 32301

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.