02-001638 Agency For Health Care Administration vs. Westminster Community Care Services, Inc., D/B/A Westminster Care Of Orlando Status: Closed Recommended Order on Friday, September 6, 2002.

Summary: Facility did not fail to provide respiratory care to patient who pulled out trach tube when facility nurse restored airway but did not provide CPR before EMT arrived on scene.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 0669

) 02 - 1638

WESTMINSTER CARE OF ORLANDO, )

)

Respondent. )

____________ __________________)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of these consolidated cases on June 25,

2002, in Orlando, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPE ARANCES

For Petitioner: Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive

Room 310L

St. Petersburg, Florida 33701

For Respondent: Karen L. Goldsmith, Esquire

Goldsmith, Grout & Lewis, P.A.

Post Office Box 2011

2180 Park Avenue, North

Suite 100

Winter Park, Florida 32790 - 2011

STATEMENT OF THE ISSUE

The issue in these cases is whether Respondent failed to

provide appropriate emergency care for a nursing home resi dent

in respiratory distress in violation of 42 Code of Federal

Regulation (CFR) Section 483.25 and Florida Administrative Code

Rule 59A - 4.1288. (All references to rules are to rules

promulgated in the Florida Administrative Code in effect as of

the date of this Recommended Order.)

PRELIMINARY STATEMENT

By letter dated November 30, 2001, Petitioner alleges that

Respondent violated 42 C.F.R. Section 483.25, which has been

adopted as a state requirement by Rule 59A - 4.1288, for an

alleged "failure to provi de appropriate emergency care for a

resident in respiratory distress and failure." The letter

identified the alleged violation as Tag F309 (F309) and cited a

scope and severity of "G" and Class II. In Case No. 02 - 0669,

Petitioner filed a notice of intent to assign a conditional

license for the period from September 14, 2001, until

substantial compliance is achieved. Petitioner changed

Respondent's license rating to a conditional license effective

September 14, 2001.

On December 20, 2001, Petitioner file d an Administrative

Complaint and, on May 1, 2002, Petitioner filed an Amended

Administrative Complaint without objection by Respondent. The

Amended Administrative Complaint in Case No. 02 - 1638, seeks to

impose an administrative fine of $2,500.00. The pr oposed change

in license status in Case No. 02 - 0669 and the proposed

administrative fine in Case No. 02 - 1638 are based on the same

allegations.

At the administrative hearing, Petitioner withdrew

paragraphs 9B and 9D of the Amended Administrative Complain t.

The remaining allegations in this consolidated proceeding are

that Respondent violated Rules 59A - 4.106, 59A - 4.1288, which

adopts 42 C.F.R. Section 483.25, and Section 400.022, Florida

Statutes (2001). (All chapter and section references are to

Florida Statutes (2001) unless otherwise stated.) Respondent

timely requested an administrative hearing.

Petitioner presented the testimony of one witness and

submitted five exhibits for admission in evidence. Respondent

presented the testimony of one witness, and submitted eight

exhibits for admission in evidence. The identity of the

witnesses and exhibits and any attendant rulings are set forth

in the Transcript of the hearing filed on July 16, 2002.

On June 25, 2002, the ALJ ordered the parties to file thei r

Proposed Recommended Orders (PROs) no later than 10 days after

the date that the Transcript was filed. On July 22, 2002, the

ALJ granted the parties' request for an extension of time to

file their PROs on August 6, 2002. The parties timely filed

their respective PROs on August 6, 2002.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

licensing and regulating nursing homes inside the State of

Florida. Respondent operates a licensed nursing home at

830 West 29th Street, Orlando, Flori da (the facility).

2. Petitioner conducted a complaint survey of the facility

on September 14, 2001. The survey cited the facility for a

deficiency described in F309, and rated the deficiency with a

scope and severity of "G" and Class II, respectively.

3. The deficiency classifications authorized in Subsection

400.23(8) range from Class I through Class IV. Class I

deficiencies are not relevant to this case. The statute defines

the remaining classifications as follows:

(a) A Class II deficiency is a d eficiency

that the agency determines 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, an d

provision of services. . . .

(b) A Class III deficiency is a deficiency

that the agency determines will result in no

more than minimal physical, mental or

psychosocial discomfort to the resident or

has the potential to compromise the

resident's ability to maintain or reach his

or her highest practicable physical, mental,

or psychosocial well - being as defined. . . .

(c) A Class IV deficiency is a deficiency

that the agency determines has the potential

for causing no more than a minor negative

impact on the resident. . . .

4. Rule 59A - 4.1288 requires nursing home facilities

licensed by the state of Florida to adhere to federal

regulations found in Section 483 of the Code of Federal

Regulations (CFR). In relevant part, Rule 59A - 4.1288 provides:

Nursin g homes that participate in Title

XVIII or XIX must follow certification rules

and regulations found in 42 CFR 483,

Requirements for Long Term Care Facilities,

September 26, 1991, which is incorporated by

reference.

5. The "G" rating adopted by Peti tioner for the scope and

severity rating of the deficiency alleged in F309 is a rating

authorized in relevant federal regulations. A "G" rating means

that the alleged deficiency was isolated.

6. Applicable state law authorizes Petitioner to change a

fa cility's licensure rating from standard to conditional

whenever Petitioner alleges that a Class II deficiency exists.

Petitioner alleged in the survey report that a Class II

deficiency existed at the facility and assigned a conditional

rating to the facil ity's license. The conditional rating was

effective September 14, 2001, and continued until substantial

compliance was achieved.

7. When Petitioner proves that a Class II deficiency

exists, applicable law authorizes Petitioner to impose a civil

money pen alty. Petitioner filed an Administrative Complaint

against Respondent seeking to impose a fine of $2,500.00 and

subsequently filed an Amended Administrative Complaint.

8. The allegations on which both the change in license

status to a conditional license and the proposed fine are based

are set forth in F309. The deficiency alleged in F309 is set

forth on CMS Form 2567, entitled "Statement of Deficiencies and

Plan of Correction" (the 2567).

9. The 2567 that Petitioner used to charge Respondent with

the d eficiency described in F309 involved only one resident. In

order to protect this resident's privacy, the 2567, F309, the

Transcript, and all pleadings refer to the resident as

Resident 1.

10. F309 alleges that the facility failed to satisfy the

requireme nt of 42 C.F.R. Section 483.25. In relevant part, the

federal regulation provides:

Each resident must receive and the facility

must provide the necessary care and services

to attain or maintain the highest

practicable physical, mental, or

psychosocial wel l - being, in accordance with

the comprehensive assessment and plan of

care. Use F309 for quality of care

deficiencies not covered by 483.25(a) - (m).

11. F309 alleges that the facility failed to satisfy the

requirement of 42 CFR Section 483.25 because:

B ased on interview and record review the

facility neglected to provide appropriate

emergency care for [Resident 1] in

respiratory distress and failure.

12. Petitioner promulgates an officially stated policy in

written guidelines entitled the State Ope rations Manual (the

Manual). The Manual states agency policy regarding the

interpretation and application of the regulatory standards

surveyors must enforce.

13. The facility admitted Resident 1 to the pediatric

long - term care unit on November 20, 2000 . The admitting

diagnosis was cerebral palsy, pneumonia and convulsions, a

tracheostomy, and a gastrostomy.

14. Resident 1 could breathe on her own and was being

weaned from the trach. She could breathe through her nose at

times. She was not on a venti lator but could breathe room air.

At all times, Resident 1 was making respiratory effort.

Resident 1 was on an apnea monitor.

15. Resident 1 had three stomas. Stomas are the openings

for the tracheostomy tube. Her throat structures were very

frail. S he had received numerous throat reconstructions. She

had significant scar tissue and a granuloma at her stoma sites.

A granuloma is a tumor - like growth. The granuloma was vascular,

and the blood vessels were easily broken. Resident 1 was

spastic as a r esult of her cerebral palsy.

16. On September 7, 2001, at 2:50 a.m., Resident 1's apnea

monitor alarm sounded. Staff immediately responded to find that

Resident 1 had pulled out her tracheostomy tube and was bleeding

profusely. Facility staff called 91 1 and notified the treating

physician and the parents.

17. An ambulance was dispatched to the facility at

2:51 a.m. on September 7, 2001. While awaiting the ambulance,

the Registered Nurse on duty (RN) could not detect an apical or

radial pulse.

18. The RN did not administer CPR. Rather, the RN

established an airway by successfully replacing the tracheostomy

tube.

19. Securing a patent airway was the first thing that the

RN should have done for Resident 1 under the circumstances. No

oxygen can b e given without a patent airway. It was difficult

for the RN to visualize the trach opening because of the profuse

bleeding. The RN was able to tactilely reinsert the tube.

20. Vital signs taken by the RN showed that Resident 1 was

alive when EMT person nel arrived on the scene. CPR is not

appropriate when vital signs are present.

21. The ambulance and EMT personnel arrived shortly after

the RN reinserted the trach tube. At 2:56 a.m., EMT personnel

took over the care of Resident 1.

22. EMT personne l worked on Resident 1 for 23 minutes

before transporting her to the hospital. Resident 1 died at the

hospital at 3:35 a.m., 38 minutes after the EMTs took

responsibility for her care.

23. EMT personnel generated EKG strips indicating that

Resident 1's heart was beating at some point after they took

over. Two sets of x - rays subsequently taken at the hospital

substantiate that Resident 1 was alive when EMT personnel took

over her care.

24. EMT personnel removed the trach the nurse had inserted

and repla ced it with an endotracheal tube. Removing the trach

eliminated the airway that the RN had established for Resident 1

before EMT personnel arrived.

25. The endotracheal tube was 22 centimeters long and

significantly longer and larger than the regular tra ch tube used

for Resident 1. The physician's order for Resident 1 stated

that nothing should go past 6 centimeters into Resident 1's

trach. It took the EMTs three attempts to get the endotracheal

tube placed.

26. The EMTs should have hyperventilated Res ident 1 before

placing the endotracheal tube. They did not do so. The x - ray

taken at 3:42 a.m. in the hospital, shows that the endotracheal

tube was improperly positioned in Resident 1's lung.

27. All steps taken by the RN were appropriate for

Resident 1 under the circumstances. Petitioner failed to show a

nexus between any act or omission by the facility and the harm

to Resident 1.

28. The care plan for Resident 1 called for suctioning of

her tracheal tube. Care plans are to be followed under norma l

circumstances. Emergency procedures take precedence in critical

situations.

29. Suctioning for Resident 1 was appropriate under normal

circumstances when she had a patent airway. If Resident 1 did

not have an airway, the first priority is to establi sh an

airway. The RN first established a patent airway for

Resident 1.

30. It would have been inappropriate for the RN to suction

Resident 1 before establishing an airway because it would have

sucked out the air remaining in Resident 1's lungs. Suction ing

also could have caused a vasovagal response that could stop the

heart and could have caused tissue damage.

31. After the RN opened an airway for Resident 1, the next

priority would have been for the RN to check for vital signs.

The RN checked Resid ent 1's vital signs after opening an airway,

and the vital signs showed that Resident 1 was alive when EMT

personnel arrived on the scene.

32. The presence of vital signs made it inappropriate for

either the RN or EMT personnel to administer CPR. CPR i s

appropriate only in the absence of vital signs.

33. When EMT personnel arrived, they continued the same

procedure that the RN had followed. EMT first established an

airway by removing the trach tube used by the RN and replaced it

with an endotracheal t ube. The resident had vital signs after

placement of the trach and CPR was inappropriate.

34. F282 relates to failure to implement a care plan.

Respondent was not cited under F282. Petitioner stipulated in

the Prehearing Stipulation that both the condi tional license and

fine were based on F309 alone.

CONCLUSIONS OF LAW

35. DOAH has jurisdiction over the parties and subject

matter in this proceeding. Sections 120.569 and 120.57(1). The

parties received adequate notice of the administrative hearing.

36 . Petitioner must show by a preponderance of the

evidence that Respondent committed an act or omission for which

the imposition of a conditional license is appropriate. Beverly

Enterprises - Florida v. Agency for Health Care Administration ,

745 So. 2d 1133 (Fla. 1st DCA 1999); Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 349 (Fla. 1st

DCA 1977). Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). See also Agency

for Health Care Admini stration v. Beverly Savana Cay Manor,

Inc. , et al. , DOAH Case No. 00 - 3356, 2001 WL 246776; and Capital

Health Care Center v. Agency for Health Care Administration ,

DOAH Case No. 00 - 1996.2000 WL 1867290. Petitioner must show by

clear and convincing evidenc e that Respondent committed the acts

or omissions alleged in the Administrative Complaint and the

reasonableness of the proposed fine. Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932.935 (Fla.

1996).

37. Petitioner failed to satisfy either burden of proof.

All steps taken by the facility were appropriate for Resident 1

under the facts and circumstances.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a Final Order finding

Respondent not guilty of the allegations in F309 and the

Administrative Complaint, dismissing the Administrative

Complaint, and changing Respondent's conditional license to a

standard license effective September 4, 2001.

DONE AND ENTE RED this 6th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2002.

COPIES FURNISHED :

Michael P. Sasso, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive, Room 3106

St. Petersburg, Florida 33701

Karen L. Goldsmith, Esquire

Goldsmith, Grout & Lewis, P.A.

Post Office Box 2011

2180 Park Avenue, North

Suite 100

Winter Park, Florida 32790 - 2011

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

William Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3431

Tallahassee, Florida 32308

Rhonda M. Medows, M.D., Secretary

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Sui te 3116

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 a gency that

will issue the Final Order in this case.