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.


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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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case Nos. 02 - 0669

26) 02 - 1638

30WESTMINSTER CARE OF ORLANDO, )

35)

36Respondent. )

38____________ __________________)

40RECOMMENDED ORDER

42Administrative Law Judge (ALJ) Daniel Manry conducted the

50administrative hearing of these consolidated cases on June 25,

592002, in Orlando, Florida, on behalf of the Division of

69Administrative Hearings (DOAH).

72APPE ARANCES

74For Petitioner: Michael P. Sasso, Esquire

80Agency for Health Care Administration

85525 Mirror Lake Drive

89Room 310L

91St. Petersburg, Florida 33701

95For Respondent: Karen L. Goldsmith, Esquire

101Goldsmith, Grout & Lewis, P.A.

106Post Office Box 2011

1102180 Park Avenue, North

114Suite 100

116Winter Park, Florida 32790 - 2011

122STATEMENT OF THE ISSUE

126The issue in these cases is whether Respondent failed to

136provide appropriate emergency care for a nursing home resi dent

146in respiratory distress in violation of 42 Code of Federal

156Regulation (CFR) Section 483.25 and Florida Administrative Code

164Rule 59A - 4.1288. (All references to rules are to rules

175promulgated in the Florida Administrative Code in effect as of

185the date of this Recommended Order.)

191PRELIMINARY STATEMENT

193By letter dated November 30, 2001, Petitioner alleges that

202Respondent violated 42 C.F.R. Section 483.25, which has been

211adopted as a state requirement by Rule 59A - 4.1288, for an

223alleged "failure to provi de appropriate emergency care for a

233resident in respiratory distress and failure." The letter

241identified the alleged violation as Tag F309 (F309) and cited a

252scope and severity of "G" and Class II. In Case No. 02 - 0669,

266Petitioner filed a notice of intent to assign a conditional

276license for the period from September 14, 2001, until

285substantial compliance is achieved. Petitioner changed

291Respondent's license rating to a conditional license effective

299September 14, 2001.

302On December 20, 2001, Petitioner file d an Administrative

311Complaint and, on May 1, 2002, Petitioner filed an Amended

321Administrative Complaint without objection by Respondent. The

328Amended Administrative Complaint in Case No. 02 - 1638, seeks to

339impose an administrative fine of $2,500.00. The pr oposed change

350in license status in Case No. 02 - 0669 and the proposed

362administrative fine in Case No. 02 - 1638 are based on the same

375allegations.

376At the administrative hearing, Petitioner withdrew

382paragraphs 9B and 9D of the Amended Administrative Complain t.

392The remaining allegations in this consolidated proceeding are

400that Respondent violated Rules 59A - 4.106, 59A - 4.1288, which

411adopts 42 C.F.R. Section 483.25, and Section 400.022, Florida

420Statutes (2001). (All chapter and section references are to

429Florida Statutes (2001) unless otherwise stated.) Respondent

436timely requested an administrative hearing.

441Petitioner presented the testimony of one witness and

449submitted five exhibits for admission in evidence. Respondent

457presented the testimony of one witness, and submitted eight

466exhibits for admission in evidence. The identity of the

475witnesses and exhibits and any attendant rulings are set forth

485in the Transcript of the hearing filed on July 16, 2002.

496On June 25, 2002, the ALJ ordered the parties to file thei r

509Proposed Recommended Orders (PROs) no later than 10 days after

519the date that the Transcript was filed. On July 22, 2002, the

531ALJ granted the parties' request for an extension of time to

542file their PROs on August 6, 2002. The parties timely filed

553their respective PROs on August 6, 2002.

560FINDINGS OF FACT

5631. Petitioner is the state agency responsible for

571licensing and regulating nursing homes inside the State of

580Florida. Respondent operates a licensed nursing home at

588830 West 29th Street, Orlando, Flori da (the facility).

5972. Petitioner conducted a complaint survey of the facility

606on September 14, 2001. The survey cited the facility for a

617deficiency described in F309, and rated the deficiency with a

627scope and severity of "G" and Class II, respectively.

6363. The deficiency classifications authorized in Subsection

643400.23(8) range from Class I through Class IV. Class I

653deficiencies are not relevant to this case. The statute defines

663the remaining classifications as follows:

668(a) A Class II deficiency is a d eficiency

677that the agency determines has compromised

683the resident's ability to maintain or reach

690his or her highest practicable physical,

696mental, and psychosocial well - being, as

703defined by an accurate and comprehensive

709resident assessment, plan of care, an d

716provision of services. . . .

722(b) A Class III deficiency is a deficiency

730that the agency determines will result in no

738more than minimal physical, mental or

744psychosocial discomfort to the resident or

750has the potential to compromise the

756resident's ability to maintain or reach his

763or her highest practicable physical, mental,

769or psychosocial well - being as defined. . . .

779(c) A Class IV deficiency is a deficiency

787that the agency determines has the potential

794for causing no more than a minor negative

802impact on the resident. . . .

8094. Rule 59A - 4.1288 requires nursing home facilities

818licensed by the state of Florida to adhere to federal

828regulations found in Section 483 of the Code of Federal

838Regulations (CFR). In relevant part, Rule 59A - 4.1288 provides:

848Nursin g homes that participate in Title

855XVIII or XIX must follow certification rules

862and regulations found in 42 CFR 483,

869Requirements for Long Term Care Facilities,

875September 26, 1991, which is incorporated by

882reference.

8835. The "G" rating adopted by Peti tioner for the scope and

895severity rating of the deficiency alleged in F309 is a rating

906authorized in relevant federal regulations. A "G" rating means

915that the alleged deficiency was isolated.

9216. Applicable state law authorizes Petitioner to change a

930fa cility's licensure rating from standard to conditional

938whenever Petitioner alleges that a Class II deficiency exists.

947Petitioner alleged in the survey report that a Class II

957deficiency existed at the facility and assigned a conditional

966rating to the facil ity's license. The conditional rating was

976effective September 14, 2001, and continued until substantial

984compliance was achieved.

9877. When Petitioner proves that a Class II deficiency

996exists, applicable law authorizes Petitioner to impose a civil

1005money pen alty. Petitioner filed an Administrative Complaint

1013against Respondent seeking to impose a fine of $2,500.00 and

1024subsequently filed an Amended Administrative Complaint.

10308. The allegations on which both the change in license

1040status to a conditional license and the proposed fine are based

1051are set forth in F309. The deficiency alleged in F309 is set

1063forth on CMS Form 2567, entitled "Statement of Deficiencies and

1073Plan of Correction" (the 2567).

10789. The 2567 that Petitioner used to charge Respondent with

1088the d eficiency described in F309 involved only one resident. In

1099order to protect this resident's privacy, the 2567, F309, the

1109Transcript, and all pleadings refer to the resident as

1118Resident 1.

112010. F309 alleges that the facility failed to satisfy the

1130requireme nt of 42 C.F.R. Section 483.25. In relevant part, the

1141federal regulation provides:

1144Each resident must receive and the facility

1151must provide the necessary care and services

1158to attain or maintain the highest

1164practicable physical, mental, or

1168psychosocial wel l - being, in accordance with

1176the comprehensive assessment and plan of

1182care. Use F309 for quality of care

1189deficiencies not covered by 483.25(a) - (m).

119611. F309 alleges that the facility failed to satisfy the

1206requirement of 42 CFR Section 483.25 because:

1213B ased on interview and record review the

1221facility neglected to provide appropriate

1226emergency care for [Resident 1] in

1232respiratory distress and failure.

123612. Petitioner promulgates an officially stated policy in

1244written guidelines entitled the State Ope rations Manual (the

1253Manual). The Manual states agency policy regarding the

1261interpretation and application of the regulatory standards

1268surveyors must enforce.

127113. The facility admitted Resident 1 to the pediatric

1280long - term care unit on November 20, 2000 . The admitting

1292diagnosis was cerebral palsy, pneumonia and convulsions, a

1300tracheostomy, and a gastrostomy.

130414. Resident 1 could breathe on her own and was being

1315weaned from the trach. She could breathe through her nose at

1326times. She was not on a venti lator but could breathe room air.

1339At all times, Resident 1 was making respiratory effort.

1348Resident 1 was on an apnea monitor.

135515. Resident 1 had three stomas. Stomas are the openings

1365for the tracheostomy tube. Her throat structures were very

1374frail. S he had received numerous throat reconstructions. She

1383had significant scar tissue and a granuloma at her stoma sites.

1394A granuloma is a tumor - like growth. The granuloma was vascular,

1406and the blood vessels were easily broken. Resident 1 was

1416spastic as a r esult of her cerebral palsy.

142516. On September 7, 2001, at 2:50 a.m., Resident 1's apnea

1436monitor alarm sounded. Staff immediately responded to find that

1445Resident 1 had pulled out her tracheostomy tube and was bleeding

1456profusely. Facility staff called 91 1 and notified the treating

1466physician and the parents.

147017. An ambulance was dispatched to the facility at

14792:51 a.m. on September 7, 2001. While awaiting the ambulance,

1489the Registered Nurse on duty (RN) could not detect an apical or

1501radial pulse.

150318. The RN did not administer CPR. Rather, the RN

1513established an airway by successfully replacing the tracheostomy

1521tube.

152219. Securing a patent airway was the first thing that the

1533RN should have done for Resident 1 under the circumstances. No

1544oxygen can b e given without a patent airway. It was difficult

1556for the RN to visualize the trach opening because of the profuse

1568bleeding. The RN was able to tactilely reinsert the tube.

157820. Vital signs taken by the RN showed that Resident 1 was

1590alive when EMT person nel arrived on the scene. CPR is not

1602appropriate when vital signs are present.

160821. The ambulance and EMT personnel arrived shortly after

1617the RN reinserted the trach tube. At 2:56 a.m., EMT personnel

1628took over the care of Resident 1.

163522. EMT personne l worked on Resident 1 for 23 minutes

1646before transporting her to the hospital. Resident 1 died at the

1657hospital at 3:35 a.m., 38 minutes after the EMTs took

1667responsibility for her care.

167123. EMT personnel generated EKG strips indicating that

1679Resident 1's heart was beating at some point after they took

1690over. Two sets of x - rays subsequently taken at the hospital

1702substantiate that Resident 1 was alive when EMT personnel took

1712over her care.

171524. EMT personnel removed the trach the nurse had inserted

1725and repla ced it with an endotracheal tube. Removing the trach

1736eliminated the airway that the RN had established for Resident 1

1747before EMT personnel arrived.

175125. The endotracheal tube was 22 centimeters long and

1760significantly longer and larger than the regular tra ch tube used

1771for Resident 1. The physician's order for Resident 1 stated

1781that nothing should go past 6 centimeters into Resident 1's

1791trach. It took the EMTs three attempts to get the endotracheal

1802tube placed.

180426. The EMTs should have hyperventilated Res ident 1 before

1814placing the endotracheal tube. They did not do so. The x - ray

1827taken at 3:42 a.m. in the hospital, shows that the endotracheal

1838tube was improperly positioned in Resident 1's lung.

184627. All steps taken by the RN were appropriate for

1856Resident 1 under the circumstances. Petitioner failed to show a

1866nexus between any act or omission by the facility and the harm

1878to Resident 1.

188128. The care plan for Resident 1 called for suctioning of

1892her tracheal tube. Care plans are to be followed under norma l

1904circumstances. Emergency procedures take precedence in critical

1911situations.

191229. Suctioning for Resident 1 was appropriate under normal

1921circumstances when she had a patent airway. If Resident 1 did

1932not have an airway, the first priority is to establi sh an

1944airway. The RN first established a patent airway for

1953Resident 1.

195530. It would have been inappropriate for the RN to suction

1966Resident 1 before establishing an airway because it would have

1976sucked out the air remaining in Resident 1's lungs. Suction ing

1987also could have caused a vasovagal response that could stop the

1998heart and could have caused tissue damage.

200531. After the RN opened an airway for Resident 1, the next

2017priority would have been for the RN to check for vital signs.

2029The RN checked Resid ent 1's vital signs after opening an airway,

2041and the vital signs showed that Resident 1 was alive when EMT

2053personnel arrived on the scene.

205832. The presence of vital signs made it inappropriate for

2068either the RN or EMT personnel to administer CPR. CPR i s

2080appropriate only in the absence of vital signs.

208833. When EMT personnel arrived, they continued the same

2097procedure that the RN had followed. EMT first established an

2107airway by removing the trach tube used by the RN and replaced it

2120with an endotracheal t ube. The resident had vital signs after

2131placement of the trach and CPR was inappropriate.

213934. F282 relates to failure to implement a care plan.

2149Respondent was not cited under F282. Petitioner stipulated in

2158the Prehearing Stipulation that both the condi tional license and

2168fine were based on F309 alone.

2174CONCLUSIONS OF LAW

217735. DOAH has jurisdiction over the parties and subject

2186matter in this proceeding. Sections 120.569 and 120.57(1). The

2195parties received adequate notice of the administrative hearing.

220336 . Petitioner must show by a preponderance of the

2213evidence that Respondent committed an act or omission for which

2223the imposition of a conditional license is appropriate. Beverly

2232Enterprises - Florida v. Agency for Health Care Administration ,

2241745 So. 2d 1133 (Fla. 1st DCA 1999); Florida Department of

2252Transportation v. J.W.C. Company, Inc. , 396 So. 2d 349 (Fla. 1st

2263DCA 1977). Balino v. Department of Health and Rehabilitative

2272Services , 348 So. 2d 349 (Fla. 1st DCA 1977). See also Agency

2284for Health Care Admini stration v. Beverly Savana Cay Manor,

2294Inc. , et al. , DOAH Case No. 00 - 3356, 2001 WL 246776; and Capital

2308Health Care Center v. Agency for Health Care Administration ,

2317DOAH Case No. 00 - 1996.2000 WL 1867290. Petitioner must show by

2329clear and convincing evidenc e that Respondent committed the acts

2339or omissions alleged in the Administrative Complaint and the

2348reasonableness of the proposed fine. Department of Banking and

2357Finance v. Osborne Stern and Co. , 670 So. 2d 932.935 (Fla.

23681996).

236937. Petitioner failed to satisfy either burden of proof.

2378All steps taken by the facility were appropriate for Resident 1

2389under the facts and circumstances.

2394RECOMMENDATION

2395Based on the forgoing Findings of Fact and Conclusions of

2405Law, it is

2408RECOMMENDED that Petitioner enter a Final Order finding

2416Respondent not guilty of the allegations in F309 and the

2426Administrative Complaint, dismissing the Administrative

2431Complaint, and changing Respondent's conditional license to a

2439standard license effective September 4, 2001.

2445DONE AND ENTE RED this 6th day of September, 2002, in

2456Tallahassee, Leon County, Florida.

2460___________________________________

2461DANIEL MANRY

2463Administrative Law Judge

2466Division of Administrative Hearings

2470The DeSoto Building

24731230 Apalachee Parkway

2476Tallahassee, Florida 32399 - 3060

2481(850) 488 - 9675 SUNCOM 278 - 9675

2489Fax Filing (850) 921 - 6847

2495www.doah.state.fl.us

2496Filed with the Clerk of the

2502Division of Administrative Hearings

2506this 6th day of September, 2002.

2512COPIES FURNISHED :

2515Michael P. Sasso, Esquire

2519Agency for Health Care Administration

2524525 Mirror Lake Drive, Room 3106

2530St. Petersburg, Florida 33701

2534Karen L. Goldsmith, Esquire

2538Goldsmith, Grout & Lewis, P.A.

2543Post Office Box 2011

25472180 Park Avenue, North

2551Suite 100

2553Winter Park, Florida 32790 - 2011

2559Lealand McCharen, Agency Clerk

2563Agency for Health Care Administration

25682727 Mahan Drive, Mail Stop 3

2574Tallahassee, Florida 32308

2577William Roberts, Acting General Counsel

2582Agency for Health Care Administration

25872727 Mahan Drive

2590Fort Knox Building Three, Suite 3431

2596Tallahassee, Florida 32308

2599Rhonda M. Medows, M.D., Secretary

2604Agency for Health Care Administration

26092727 Mahan Drive

2612Fort Knox Building Three, Sui te 3116

2619Tallahassee, Florida 32308

2622NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2628All parties have the right to submit written exceptions within

263815 days from the date of this Recommended Order. Any exceptions

2649to this Recommended Order should be filed with the a gency that

2661will issue the Final Order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
Date: 08/15/2003
Proceedings: Opinion filed.
PDF:
Date: 02/26/2003
Proceedings: Final Order filed.
PDF:
Date: 02/24/2003
Proceedings: Agency Final Order
PDF:
Date: 09/06/2002
Proceedings: Recommended Order
PDF:
Date: 09/06/2002
Proceedings: Recommended Order issued (hearing held June 25, 2002) CASE CLOSED.
PDF:
Date: 09/06/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/06/2002
Proceedings: (Proposed) Recommended Order (filed via facsimile).
PDF:
Date: 08/06/2002
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 07/22/2002
Proceedings: Order Granting Extension issued. (proposed recommended orders will be filed on or before August 6, 2002)
PDF:
Date: 07/18/2002
Proceedings: Agreed Upon Motion for Extension of Time (filed by Petitioner via facsimile).
Date: 07/16/2002
Proceedings: Transcript filed.
PDF:
Date: 06/24/2002
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
PDF:
Date: 06/24/2002
Proceedings: Subpoena Duces Tecum, Medical Records Custodian, Rural/Metro Ambulance filed.
PDF:
Date: 06/24/2002
Proceedings: Letter to Judge Manry from A. Finch enclosing respondent`s exhibits filed.
PDF:
Date: 05/24/2002
Proceedings: Answer to Amended Administrative Complaint and Petition for Formal Administrative Hearing (filed by Respondent via facsimile).
PDF:
Date: 05/14/2002
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for June 25, 2002; 9:30 a.m.; Orlando, FL).
PDF:
Date: 05/13/2002
Proceedings: Agreed Upon Motion to Continue and Reschedule Hearing (filed via facsimile).
PDF:
Date: 05/10/2002
Proceedings: Order Granting Amended Motion for Leave to Serve Administrative Complaint issued.
PDF:
Date: 05/07/2002
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for May 15, 2002; 9:30 a.m.; Orlando and Tallahassee, FL, amended as to type of hearing and location).
PDF:
Date: 05/01/2002
Proceedings: Motion for Leave to Serve an Amended Administrative Complaint (filed by Petitioner via facsimile).
PDF:
Date: 05/01/2002
Proceedings: Amended Administrative Complaint (filed by Petitioner via facsimile).
PDF:
Date: 05/01/2002
Proceedings: Amended Motion for Leave to Serve an Amended Administrative Complaint (filed by Petitioner via facsimile).
PDF:
Date: 04/30/2002
Proceedings: Order Granting Consolidation issued. (consolidated cases are: 02-000669, 02-001638)
PDF:
Date: 04/30/2002
Proceedings: Notice of Hearing issued (hearing set for May 15, 2002; 9:30 a.m.; Orlando, FL).
PDF:
Date: 04/25/2002
Proceedings: Letter to S. Johnson from K. Goldsmith requesting subpoenas filed.
PDF:
Date: 04/24/2002
Proceedings: Initial Order issued.
PDF:
Date: 04/24/2002
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/24/2002
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 04/24/2002
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
DANIEL MANRY
Date Filed:
04/24/2002
Date Assignment:
04/24/2002
Last Docket Entry:
08/15/2003
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (4):