20-004678 Agency For Health Care Administration vs. Pelican Garden, Llc Status: Closed Recommended Order on Wednesday, May 19, 2021.

Summary: ACHA failed to prove by clear and convincing evidence that Respondent's failure to administer CPR to an unresponsive and dead resident directly threatened the resident's physical or emotional health, safety, or security, a Class II violation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Petitioner ,

Case No. 20 - 4678

vs.

P ELICAN G ARDEN , LLC ,

Respondent .

/

R ECOMM ENDED O RDER

Pursuant to notice, an administrative hearing took place on February 23,

2021, before Robert L. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings (ÑDOAHÒ) , by Zoom webcast.

A PPEARANCES

For Petitioner: Elizabeth Anne Hathaway DeMarco , Esquire

Gisela Iglesias, Esquire

Agency for Health Care Administration

525 Mirror Lake Drive North , Suite 330C

St. Petersburg, Florida 33701

For Respondent: Dwight Oneal Slater, Esquire

Cohn Slater, P.A.

3689 Coolidge C ourt, Unit 3

Tallahassee, Florida 32311

S TATEMENT OF T HE I SSUE

Whether Petitioner proved by clear and convincing evidence that

R e spondent committed a Class II violation as alleged in the Administrative

Complaint, by failing to p erform cardiopulmonary resuscitation (Ñ CPR Ò) on a

resident at its facility.

P RELIMINARY S TATEMENT

On June 11, 2020, the Agency for Health Care Administration (Ñ AHCA Ò or

Ñ Agency Ò ) filed a two - count A dministrative C omplaint alleging that Pelican

Garden , LL C (ÑPelican GardenÒ), had violated a resident Ô s rights by failing to

perform CPR after the resident was found unresponsive. AHCA notified

Pelican Garden that it was seeking to impose administrative fines in the

amount of five thousand dollars ($5,000.00) a nd assess survey fees in the sum

of five hundred dollars ($500.00).

Pelican Garden took exception to this determination and disputed the

material facts outlined in the A dministrative C omplaint. The case was

referred to DOAH for the assignment of an ALJ.

A formal evidentiary hearing took place on February 23, 2021. The Agency

and Pelican Garden called the same witnesses: Tikel Wedges - Phoenix, Health

Facility Evaluator Supervisor; Anastasia Stanton, Health Facility

Evaluator II; Michelle Dillehay, Register ed Nurse Consultant; the r elative

representative of resident number one ( Ñ R #1 Ò ); Margaret Conti, Pelican

Garden Administrator; Dalia Portugal, Pelican Garden e mployee;

Marie Andre, Pelican Garden e mployee; Mimose Francois, Pelican Garden

e mployee; and Ker ri Conklin, a former Pelican Garden e mployee.

The undersigned admitted Agency E xhibits 1 through 21 into evidence .

Pelican Garden offered, and the undersigned admitted over objection,

Composite Exhibit A , which was a collection of police reports and polic e

photographs of the resident as she was found by the police in her bed. 1

1 The pictures were relevant and probative regarding the condition of the resident when the

staff arrived in her room and made quick and important response decisions which are the

crux of Petitioner Ô s case and Respondent Ô s defense.

Respondent Ô s Motion to Determine Confidentiality of Court Records filed

February 22, 2021 , was G RANTED by separate Order . All documents and

photographs contained in Respondent Ô s Ex hibit A shall remain sealed and

confidential and not accessible to the public and non - parties without notice to

the parties and approval of the undersigned.

A T ranscript of the proceeding was filed on March 17, 2021. The

undersigned granted Pelican Garden Ô s unopposed request for an extension of

time to file proposed recommended orders. The parties timely filed thei r

proposed recommended order s which were reviewed and considered in the

preparation of this Recommended Order.

All references to statutes, rule s , or policies are to those versions in effect

on the date of the occurrence, act , or omission.

F INDINGS OF F ACT

The undersigned makes the following findings of relevant and material

fact:

Joint Statement of Admitted Facts Filed by the Parties on February 19, 2021

1. The Agency completed a complaint survey of Pelican Garden on or

about December 4, 2020.

2. The Agency is the regulatory authority responsible for licensure of

assisted living facilities (ÑALFÒ) and enforcement of applicable state statutes

and rules governing ALFs pursuant to c hapters 429, Part I, and 408, Part II,

Florida Statutes, and Florida Administrative Code Chapter 59A - 36.

3. Pelican Garden was, at all times material hereto, an ALF under the

licensing authority of the Agency, and was requ ired to comply with all

applicable rules and statutes.

4. The Agency Ô s surveyor cited Pelican Garden with a Class II deficient

practice on or about December 4, 2020.

5. On or about July 24, 2019, R #1 was a resident at Pelican Garden Ô s

facility.

6. Pelica n Garden Ô s procedure for honoring a resident Ô s Do Not Resuscitate

(ÑDNRÒ) O rder includes circling the Ñ DNR Ò located on the face sheet

(information sheet) if a copy of the DNR is received and is on file at the

facility.

7. Pelican Garden Ô s a dmission paperwo rk includes a Ñ Memo Ò initialed by

the resident or representative to acknowledge that the facility has requested

a copy of the resident Ô s DNR O rder, if one exists.

8. Pelican Garden Ô s DNR policy requires that a resident or representative

provide the facilit y with a copy of a DNR O rder on yellow paper, and then the

facility files the order and places the resident on the Do Not Resuscitate

Order ( Ñ DNRO Ò ) list.

9. Pelican Garden Ô s DNR policy requires that if a resident has a DNR on

file, the facility will place a Ñ butterfly Ò on the back of the resident Ô s door in

their room with the resident name on the butterfly to notify staff to not

perform life saving measures including but not limited to CPR.

10. R #1Ôs executed contract, dated November 2, 2018, revealed a D NR

form was requested from the resident Ô s representative as shown by the

representative Ô s initials on the DNR policy and procedure page.

11. R #1Ôs r esident f ace sheet (Information Sheet), dated November 2,

2018, did not have a circled DNR O rder , indicatin g that the resident did not

have a DNR on the date of R #1Ôs death.

12. R #1 did not have a DNR O rder on file with Respondent on the date of

R #1Ôs death.

13. O n or about July 24, 2019, at approximately 7:24 a.m., R #1 was found

unresponsive in the residen t Ô s room, with half of the resident Ô s body off the

side of the bed with her legs on the ground and her head between the grab

bar (removeable side rail) and the mattress, by Pelican Garden Ô s staff

members Ñ A, Ò Ñ B, Ò Ñ C , Ò and Ñ D. Ò

14. O n or about July 24, 201 9, Pelican Garden Ô s staff member Ñ C Ò was

instructed by staff member Ñ A Ò to take R #1Ôs roommate to the bathroom and

then leave the room with the roommate.

15. O n or about July 24, 2019, at approximately 7:24 a.m., Pelican

Garden Ô s staff members Ñ A, Ò Ñ B, Ò a nd Ñ D Ò worked to reposition R #1 to begin

performing CPR and staff member Ñ A Ò checked the resident Ô s pulse, observed

the resident was pale and the resident Ô s skin was cold to the touch and made

the determination that the resident had already passed.

16. O n or about July 24, 20 1 9, Pelican Garden Ô s staff member Ñ D Ò helped

reposition R #1 and then left the room.

17. O n or about July 24, 2019, Pelican Garden Ô s staff member Ñ D Ò was

certified in CPR.

18. O n or about July 24, 2019, Pelican Garden Ô s staff members Ñ A, Ò Ñ B, Ò

Ñ C, Ò or Ñ D Ò did not perform CPR on R #1 .

19. O n or about July 24, 2019, at approximately 7:36 a.m., Pelican

Garden Ô s staff member Ñ A Ò dialed 911 at approximately 7:38 a.m. and , at

approximately 7:39 a.m. , stated it Ô s too late for CPR for R #1 .

20 . O n or about July 24, 2019, at approximately 7:39 a.m., Pelican

Garden Ô s s taff member Ñ A Ò called Pelican Garden Ô s Administrator who

instructed s taff member Ñ A Ò not to administer CPR to R #1 .

21. O n or about July 24, 2019, at approximately 7:39 a.m., Pelic an

Garden Ô s Administrator had no firsthand knowledge of the condition of R #1 .

22. O n or about July 24, 2019, at approximately 7:42 a.m. , the Emergency

Medical Services ( Ñ EMS Ò ) arrived at Pelican Garden Ô s facility.

23. O n or about June 24, 2019, at approxi mately 7:45 a.m. , the Emergency

Medical Technician ( Ñ EMT Ò ) pronounced R #1 as dead.

24. Pelican Garden Ô s staff member Ñ A Ò received a basic life support CPR

and automated external defibrillator (ÑAEDÒ) certification dated October 5,

2017, with an expiration date of October 2019.

25. Pelican Garden Ô s staff member Ñ A Ò was certified to perform CPR at the

time of R #1Ôs death.

26. Pelican Garden submitted a Plan of Correction dated January 22,

2020.

27. Before, during , and after July 24, 2019, Pelican Garden Ô s p olicy to

respond to an unresponsive resident without a DNR was to start CPR.

28. Pelican Garden retrained staff on the response to an unresponsive

resident without a DNR after the December 4, 2019, AHCA survey.

29. O n or about July 24, 2019, to December 4, 2019, Pelican Garden had

more than one resident who did not have a DNR.

Other Material Facts Established at the Hearing

30. Dalia Portugal (ÑPortugalÒ) had worked at Pelican Garden for eight

years. Marie Andre (ÑAndreÒ) is a home health aide. She has work ed as a

caregiver at ALFs for more than a decade. Mimose Francois (ÑFrancoisÒ) is

also a home health aide. Francois had been a caregiver at another facility for

13 years.

31. On July 24, 2019 , when Portugal first arrived at work, there had been

a shift ch ange of staff at 7:00 a.m.

32. This incident involved a 96 - year - old resident at Pelican Gardens ALF.

The resident, R #1, had moved into the facility at Pelican Garden in

November 2018. The documents revealed that she suffered from a variety of

ailments an d diseases including: dementia, hypertension, high cholesterol,

gastro reflux disease, was a fall risk, had macular degeneration , and was

hard of hearing. Pet. Ex.14, at 14b .

33. Shortly after her arrival, at approximately 7:22 a.m., Portugal took a

call f rom R #1 Ôs roommate. She advised her that R #1 was on the floor and

she didn Ô t know how long she had been on the floor.

34. At 7:24 a.m., Pelican Garden Ô s staff members Portugal, Andre,

Francois, and Kerri Conklin arrived at R #1Ôs room and found her

unres ponsive. She was positioned with h alf of her body off the side of her bed .

H er legs were on the ground and her head was positioned between the

horizontal bedrail and the mattress.

35. Together, Portugal, Andre , and Francois took hold of R #1 and worked

to reposition her up on to her bed in an effort to begin performing CPR.

36. Immediately after getting her on the bed the staff made several close

observations of R # 1. One staff member, Francois, testified that R #1 had no

pulse, was pale, was not breathing , her face was smashed, and her body

temperature was cold -- Ñ cold like ice. Ò

37. Portugal made similar observations. She stated that R #1 Ô s body

temperature was cold -- freezing cold -- she had no pulse, was pale, not

breathing, her nose was tilted to one side , and there was blood on the bed.

38. The other staff member who responded, Andre, testified in a similar

fashion. She added that R #1 Ô s face was Ñ smooshed . Ò After placing her on the

bed, Andre said no CPR was conducted because Ñ she was already dead . Ò

39. When Portugal, Andre, and Francois repositioned R #1 on the bed in

order to start CPR, they were unable to lay R #1 flat because her legs were

stiff and stuck in the bed side kneeling position in which they found her .

40. The photographs admitted as part of Respondent Ô s Ex hibit A were

insightful and provided compelling evidence that when the staff discovered

R #1 she was already dead. 2

41. The evidence was overwhelming and without serious dispute that R #1

was dead when she was discovered by the staff on the morning of July 24,

2019.

42. During the course of the hearing the parties and witnesses frequently

used the term Ñ unresponsive Ò to describe R #1 Ô s condition when she was

discovered. However, the common understanding and plain meaning of this

term in a medical emergency context implies an individual who may be in

2 The photographs also supported the testimony of the aides concerning the condition in

which they found R #1.

medical distress , but is revivable , i.e., o ne who does not respond to questions,

touch , or neurological or sensory stimulation.

43. Sadly, however, R #1 Ô s cold, pale , lifeless, and stiff body was more than

just Ñ unresponsive Ò when she was first discovered by the staff. The facts, and

reasonable inferences from the facts, established that she could not have been

revived. She was lifeless and dead.

44. Additionally, the reasonable inferences fro m the location where she

was found, the medical problems she had , and the fact that she had been

observed sleeping in bed during a 5:23 a.m. bed check indicate that she had

gotten out of bed, attempted to walk somewhere in the room, had fallen near

her bed , and severely injured her face during the fall. Resp. Ex. 14, at 14D.

45. She had been dead on the floor long enough when the staff discovered

her to cause he r body to go cold and begin to stiffen.

46. The clear and convincing evidence established that she was dead and

unrevivable when she was discovered by the staff at 7:24 a.m.

47. No amount of cardiopulmonary resuscitation would have revived or

aided R #1. Such efforts would have been futile, pointless , and of no use.

48. After the staff called 911 a nd the facility administrator, EMS arrived

at Pelican Garden at approximately 7:42 a.m. Notably, even t he EMTs did

not attempt to perform CPR on R #1.

49. Approximately three minutes after arriving, the EMTs pronounced

R #1 dead.

50. Law enforcement arri ved shortly after the EMTs and conducted an

investigation . The officers questioned Pelican Garden staff and took several

photos of R #1 as she appeared after Pelican Garden staff repositioned her on

her bed .

51. The officers noted Ñ a large amount of bloody purge Ò coming from R #1 Ô s

mouth on the right side of the bed, and a small amount of bloody purge on the

pillows and the bed on the left side of R #1 Ô s head. Resp. Ex. A at 8. 3

52. After receiving Pelican Garden Ô s report detailing the circumstances

surro unding the death of R #1, the Agency conducted its own survey of the

facility on December 4, 2019 .

53. The AHCA surveyor spoke to Portugal and Conklin .

54. The AHCA surveyor spoke with R #1 Ô s physician and learned that R #1

had died of a heart attack. T he surveyor also spoke with someone at the

Medical Examiner Ô s Office and learned that no autopsy had been performed.

55. The AHCA surveyor did not speak with the EMTs or the police officers

that responded to Pelican Garden.

56. The AHCA surveyor completed the investigation and cited Pelican

Garden for violating R #1 Ô s resident Ô s rights by failing to perform CPR when

R #1 was found Ñ unresponsiv e Ò since R #1 did not have a DNR in place .

57. According to the AHCA surveyor, there are circumstances where it

wo uld be inappropriate or unnecessary to perform CPR on a resident who

was found unresponsive . Specifically, when staff cannot get to the resident or

position the resident for some reason . The surveyor also agreed with counsel

that it Ñ wouldn Ô t make sense Ò t o perform CPR on a resident who , for example,

was found decapitated.

58. AHCA Ô s professional witness, Michelle Dillehay (ÑDillehayÒ) , is a nurse

consultant employed by AHCA . She was questioned about the general

obligation to perform CPR when an individual is found unresponsive and

does not have a DNR in place.

3 The contents of the Sebastian police report and photographs are reliable, relevant , and

supplement or explain other evidence. As a res ult, they were admitted and have been

considered by the undersigned. See generally § § 120.569(2)(g) and 120.57(1)(c) , Fla. Stat .

59. In her opinion, based on the application of recognized standards

within the community, CPR must be initiated on an Ñ unresponsive Ò

individual except in limited circumstances not applicable to th is case.

60. She was not questioned, however, using hypothetical questions about

the specific circumstances of this case. Likewise, t he undersigned was un able

to conclude that she was knowledgeable about R #1 Ô s pre - existing medical

problems or physical con dition , or her appearance at the time of her

discovery , or when she was photographed by the police on the bed . More to

the point , there was no persuasive evidence that Dillehay had seen or

reviewed the police report or pictures of R #1 taken by the Sebasti an Police

Department. Resp. Ex. A.

61. In short, Dillehay gave a broad opinion without being specifically or

thoroughly questioned or briefed about the unique circumstances of this case,

or how that might affect her view of the actions taken by the Pelica n Garden

staff on July 24, 2019.

62. The scope of her opinion was limited and not necessarily specific to the

facts of this case . She opined that in those instances where a person does not

have a DNR , they must be given CPR when found in an unresponsive st ate.

She went so far as to state that CPR must be initiated even on a dead person.

63. While her testimony was instructive in a very general sense and no

doubt sincere, the undersigned affords little weight to it because a broad

application of the CPR / DNR requirement explained by Dillehay cannot , or

should not , be applied in all cases -- especially when a person is discovered

dead and in a stiffened, cold , and lifeless state with no pulse or respiration.

Otherwise, such a requirement would be unreasonable an d lead to absurd

results.

64. To the extent DillehayÔs opinion means or suggests that the Pelican

Garden staff was required to initiate CPR on R #1 under the facts of this

case, it is rejected as unsupported by a reasonable and correct interpretation

of th e law. Further, it is up to the undersigned to determine the weight and

credibility given to an expertÔs testimony . Behm v. Div . of Adm in . , State Dept.

of Transp . 336 So. 2d 579 (Fla. 1976) .

C ONCLUSIONS OF L AW

6 5 . DOAH has jurisdiction over the subject ma tter of these proceedings

and the parties thereto. §§ 120.569 and 120.57(1), Fla. Stat.

6 6 . AHCA is the state agency charged with licensing and regulating ALFs

in Florida in accordance with chapters 408 and 429, part I .

6 7 . The Agency seeks to take action against Pelican Garden Ô s ALF license.

This action is penal in nature. Therefore, the Agency must prove its

allegations and case by clear and convincing evidence. Ferris v.

Turlington, 510 So. 2d 292 (Fla. 1987)( ÑÓ Clear and convincing evidence Ô is an

interm ediate level of proof that entails both a qualitative and quantitative

standard. It requires the evidence to be credible and the memories of the

witnesses to be clear and without confusion. In addition, the total sum of

the evidence must be of sufficient w eight to convince the trier of fact without

hesitancy. Ò ).

68. Another equally important rule involves the construction of penal

statutes that sanction a business or individual, or imposes penalties.

69. Cadet v. Dep artment of Health , 255 So. 3d 386 (Fla. 4th DCA 2018) ,

involved an enforcement action against an individualÔs nursing license. The

court recognized that an agencyÔs discretion to sanction a personÔs license is

not unfettered and reviewing courts are not required to defer to implausible

and unrea sonable interpretations by the agency.

70. The court added that Ñbecause disciplinary statutes and rules are

penal in nature, they must be construed strictly with any ambiguities

resolved in favor of the licensee.Ò Id. a t 388. This rule applies with equal force

in this case.

71 . The Agency Ô s enforcement action against Pelican Garden is premised,

in part, on a violation of the following statute which is commonly referred to

as the Resident Ô s Bill of Rights. Section 429.28(1) and (2), Florida Statutes

(2019 ), provide s :

(1) No resident of a facility shall be deprived of

any civil or legal rights, benefits, or privileges

guaranteed by law, the Constitution of the State of

Florida, or the Constitution of the United States as

a resident of a facility. Every resi dent of a facility

shall have the 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 recognition of personal dignity,

individuality, and the need for privacy .

(c) Retain and use his or her own clothes and

other personal property in his or her immediate

living quarters, so as to maintain individuality and

personal dignity, except when the facility can

demonstrate that such would be unsafe,

impractical, or an i nfringement upon the rights of

other residents.

(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 facility shall make provisions to extend visiting

hours for caregivers and out - of - town guests, and in

other similar situations.

(e) Freedom to participate in and benefit from

community services and activities and to pursue

the highest possible level of independence,

autonomy, and interaction within the community.

(f) Manage his or her financial affairs unless the

resident or, if applicable, the resident Ô s

representative, designee, surrogate, guardian, or

atto rney in fact authorizes the administrator of the

facility to provide safekeeping for 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 tim es a week and to be outdoors at regular

and frequent intervals except when prevented by

inclement weather.

(i) Exercise civil and religious liberties, including

the right to independent personal decisions. No

religious beliefs or practices, nor any attend ance at

religious services, shall be imposed upon any

resident.

(j) Assistance with obtaining access to adequate

and appropriate health care. For purposes of this

paragraph, the term Ñ adequate and appropriate

health care Ò means the management of

medicatio ns, assistance in making appointments

for health care services, the provision of or

arrangement of transportation to health care

appointments, and the performance of health care

services in accordance with s. 429.255 which are

consistent with established a nd recognized

standards within the community.

(k) At least 45 days Ô notice of relocation or

termination of residency from the facility unless,

for medical reasons, the resident is certified by a

physician to require an emergency relocation to a

facility providing a more skilled level of care or the

resid ent 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 Ô notice of a nonemergency relocation or

residency t ermination. Reasons for relocation shall

be set forth in writing. In order for a 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.

( l ) 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 g rievance procedure to facilitate the

residents Ô 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.

72 . Secti on 408.813(2)(b) characterizes the different violation levels and

provides:

(2) Violations of this part, authorizing statutes, or

applicable rules shall be classified according to the

nature of the violation and the gravity of its

probable effect on clients. The scope of a violation

may be cited as an isolated, patterned, or

widespre ad deficiency. An isolated deficiency is a

deficiency affecting one or a very limited number of

clients, or involving one or a very limited number of

staff, or a situation that occurred only occasionally

or in a very limited number of locations. A

patterne d deficiency is a deficiency in which more

than a very limited number of clients are affected,

or more than a very limited number of staff are

involved, or the situation has occurred in several

locations, or the same client or clients have been

affected by repeated occurrences of the same

deficient practice but the effect of the deficient

practice is not found to be pervasive throughout the

provider. A widespread deficiency is a deficiency in

which the problems causing the deficiency are

pervasive in the pr ovider or represent systemic

failure that has affected or has the potential to

affect a large portion of the provider Ô s clients. This

subsection does not affect the legislative

determination of the amount of a fine imposed

under authorizing statutes. Viola tions shall be

classified on the written notice as follows:

* * *

(b) Class Ñ II Ò violations are those conditions or

occurrences related to the operation and

maintenance of a provider or to the care of clients

which the agency determines directly threaten the

physical or emotional health, safety, or security of

the clients , other than class I violations. The

agency shall impose an administrative fine as

provided by law for a cited class II violation. A fine

shall be levied notwithstanding the corre ction of

the violation.

73 . Section 429.19(2)(b) outlines the fines available and provides:

(2) Each violation of this part and adopted rules

shall be classified according to the nature of the

violation and the gravity of its probable effect on

facility residents. The agency shall indicate the

classification on the written notice of the violation

as follows:

* * *

(b) Class Ñ II Ò violations are defined in s. 408.813 .

The agency shall impose an administrative fine for

a cited class II violation in an amount not less than

$1,000 and not exceeding $5,000 for each violation.

7 4 . Finally, Sectio n 429.19(7) provides:

(7) In addition to any administrative fines

imposed, the agency may assess a survey fee, equal

to the lesser of one half of the facility Ô s biennial

license and bed fee or $500, to cover the cost of

conducting initial complaint invest igations that

result in the finding of a violation that was the

subject of the complaint or monitoring visits

conducted to verify the correction of the violations.

7 5 . Other relevant statutory sections are applicable to ALFs .

Section 429.255(4) addresses a DNRO.

Facility staff may withhold or withdraw

cardiopulmonary resuscitation or the use of an

automated external defibrillator if presented with

an order not to resuscitate executed pursuant to

s. 401.45. The agency shall adopt rules providing

for the imp lementation of such orders. Facility staff

and facilities may not be subject to criminal

prosecution or civil liability, nor be considered to

have engaged in negligent or unprofessional

conduct, for withholding or withdrawing

cardiopulmonary resuscitation or use of an

automated external defibrillator pursuant to such

an order and rules adopted by the agency. The

absence of an order not to resuscitate executed

pursuant to s. 401.45 does not preclude a physician

from withholding or withdrawing cardiopulmonary

resuscitation or use of an automated external

defibrillator as otherwise permitted by law.

7 6 . Further, r ule 59A - 36.009, entitled DNROs provides , in relevant part:

(1) POLICIES AND PROCEDURES.

(a) Each assisted living facility must have written

policie s and procedures that explain its

implementation of state laws and rules relative to

Do Not Resuscitate Orders (DNROs). An assisted

living facility may not require execution of a DNRO

as a condition of admission or treatment. The

assisted living facility m ust provide the following to

each resident, or resident Ô s representative, at the

time of admission.

(3) DNRO PROCEDURES. Pursuant to section

429.255, F.S., an assisted living facility must honor

a properly executed DH Form 1896 as follows:

(a) In the eve nt a resident experiences cardiac or

pulmonary arrest, staff trained in cardiopulmonary

resuscitation (CPR) or a health care provider

present in the facility, may withhold

cardiopulmonary resuscitation (artificial

ventilation, cardiac compression, endotrac heal

intubation and defibrillation).

7 7 . In this case, there is no charge or evidence to prove that Pelican

Garden did not have written DNR policies and procedures in place, or that it

failed to properly train its employees regarding the proper protocols when a

DNRO exists. Likewise, Pelican Garden provided all the required notices to

R #1 regarding her right to sign or not sign a DNRO.

7 8 . Further, there is no allegation that the Pelican Garden staff failed to

timely respond to the call from R #1 Ô s roomm ate or was otherwise dilatory in

its response in terms of the time, personnel , and resources devoted to R #1 for

the incident on July 24, 2019 . These are not the issues or basis of the

Administrative Complaint.

7 9 . Rather, AHCA alleges that R #1 Ô s rights w ere violated, and a Class II

violation occurred when the staff failed to perform CPR on R #1.

80 . More specifically, AHCA alleges that the decision of Pelican Garden

not to initiate CPR on R #1 upon finding the r esident un responsive was in

violation of th e r esident Ô s right to access adequate and appropriate

healthcare and to be free from abuse and neglect. Rights, it alleges, which are

guaranteed to residents of ALFs under the provisions of s ection 429.28.

81 . Interestingly, and of particular note, is that the parties have not cited,

and the undersigned has not discovered, a statute or rule directly addressing

what an ALF staff member must do when a DNRO does not exist. Nor is

there a statute or rule expressly requiring that an ALF staff member initiate

CPR under all circumstances to a deceased resident when there is no DNRO.

82 . Rather, t he statutes and rules cited by AHCA carefully set forth what

can and may be done when a DNRO exists, but not what must be done if a

resident has no DNR, particularly when t hey are found indisputably dead in

their room. 4

4 In the absence of a DNRO, a physician may withhold or withdraw CPR Ñ as otherwise

permitted by law . Ò § 429.255(4) , Fla. Stat . That same subsection permits a facility staff

member to withhold or withdraw CPR if a DNRO exists, but it does not direct a staff member

to initiate CPR upon finding a resident who is dead and does not have a DNRO.

83 . While it is true that Pelican Garden recognized that it had the

responsibility to initiate CPR under appropriate circumstances , it was

reasonable for the staff not to start CPR when it found this residen t dead ,

and the collective judgment of three experienced and well - trained aides on

the scene supported the reasonable conclusion that it would be futile to start

CPR. Interpreting the statutes and rules any differently would be

unreasonable and lead to abs urd results.

Relevant Cases on Statutory Interpretation

8 4 . A case that illustrates this point is Vrchota Corp oration v. Kelly , 42 So.

3d 319 (Fla. 4th DCA 2010). In a straightforward case applying well accepted

principles of statutory interpretation, the court confirmed an important

principle that applies to this case:

The legislature is not presumed to enact statutes

that provide for absurd results. If some of the

words of the statute, when viewed as one part of

the whole statute or statutory scheme, wou ld lead

to an unreasonable conclusion or a manifest

incongruity, then the words need not be given a

literal interpretation.

Id . a t 322 ; See also , Gannon v. Airbnb, Inc. , 295 So. 3d 779 (Fla. 4th DCA

2020) .

8 5 . To interpret AHCAÔ s cited provisions of c hapt er 429 , or r ules to

require CPR on a resident that had been dead for some time, or to interpret

section 429.255 to affirmatively require CPR when the plain words of this

statute do not contain this requirement, would be unreasonable and lead to

absurd resu lts.

8 6 . Another corollary rule of statutory construction requires a court to

avoid a literal interpretation of a statute that would result in an absurd or

ridiculous conclusion. Brown v. Nationscredit Fin . Servs . Corp. , 32 So. 3d 66

(Fla. 1st DCA 2010) ; M.D. v. State , 993 So. 2d 1061 (Fla. 1st DCA 2008) ( citing

Maddox v. State , 923 So.2d 442, 446 (Fla. 2006) ) ; and State v. Atkinson , 831

So. 2d 172, 174 (Fla. 2002).

8 7 . This case presents a prime example of how these principles of

statutory interpretation play out. If the cited provisions of c hapter 429 were

interpreted to require Pelican Garden Ô s staff to initiate CPR under these

circumstances, it would lead to countless situations where an ALF or nursing

home would be required to start CPR under the most hopeless and futile of

circumstances. 5

8 8 . Chapter 429, and the rules related to honoring a DNRO, must be

interpreted to account for the use of common sense , experience, and

reasonable professional judgment by trained and experienced staff,

particularly un der the compelling facts of this case.

8 9 . Additionally, AHCA is asking the undersigned to engraft on to the

existing statute a requirement that does not exist. The statute is clear about

what staff can do when a DNRO exists. It also states that a physicia n may

withhold or withdraw CPR even when there is no DNR O .

90 . However, the statute does not specifically require CPR by a staff

member when there is no DNRO and the resident is clearly and irreversibly

dead. The undersigned cannot add this missing provis ion to the statute .

91 . Under the unique circumstances of this case , the Agency failed to

clearly and convincingly prove that Pelican Garden violated R #1 Ô s resident Ô s

rights by failing to perform CPR.

Other Relevant Law

92 . Other provisions of Florida ca se law and statutes provide guidance

and support the sensible conclusion that R #1 was dead when the staff found

her, and that it would be unreasonable to require CPR under these

circumstances.

5 Taking AHCAÔ s argument to its logical c onclusion, there would be no limit to the amount of

time a resident could be dead before an obligation to perform CPR would end. Must the staff

perform CPR after the resident has been dead for one hour, five hours , or ten hours? This

seems an incongruous a nd illogical result .

93 . For instance, the Florida Supreme Court, applying the comm on law

definition of Ñ death , Ò concluded that in the absence of a specific statute

defining death, Ñ [A] person is dead who has sustained irreversible cessation

of circulatory and respiratory functions as determined in accordance with

accepted medical standa rds. Ò In re: T.A.C.P. , 609 So. 2d 588, 594 (Fla. 1992).

The evidence, supported by the photographs, was clear and convincing that

this was the state in which the staff found R #1 -- no pulse, no breathing,

stiffening limbs , pale complexion, damaged facial ar eas, and very cold to the

touch .

9 4 . Likewise, ÑÓ Dead body Ô means a human body or such parts of a human

body from the condition of which it reasonably may be concluded that death

recently occurred. Ò § 382.002(5), Fla. Stat.

9 5 . Under the circumstances (ver y cold, pale complexion, damaged facial

areas, no respiration, no pulse , and stiffness), it was reasonable to conclude,

based on the collective judgment of three experienced aides, that R #1 had

died and CPR would have been futile .

9 6 . Portugal, Andre, and Francois Ð while not competent to sign a death

certificate or determine a cause of death Ð were entitled to rely on their

personal knowledge and years of caregiving in ALFs to determine that R #1

had died. The Agency Ô s position that only medical professionals can make

such a determination is not supported by the law or common sense . 6

9 7 . The Agency Ô s reliance on the R ecommended O rder issued in Agency for

Health Care Administration v. Pine Tree Manor, Inc., d/b/a Pine Tree

Manor , Case Nos. 13 - 2011, 13 - 2397 (Fl a. DOAH Dec. 5, 2013) (Fla. AHCA

Nov. 3, 2014) , is understandable but misplaced. The present case is

distinguishable.

9 8 . In Pine Tree Manor , the resident in question walked into a facility

common area, sat on the sofa, and began watching television. Pine Tree

6 Nor has AHCA cited any case or statute for this proposition.

Manor , pp. 6 - 7. At some point, the resident stopped breathing. After

discovering the resident, Pine Tree staff failed to check for a pulse, perform

CPR, or call 911. Id. at p. 7.

9 9 . Instead, staff called the administrator and the administrator call ed

911. Id. at p. 10. When EMS arrived, there was no Pine Tree staff present,

and when staff finally arrived , staff refused to answer any questions about

the resident. Id . at p. 9. EMTs worked for 30 minutes in an unsuccessful

attempt to revive the resident. Id. at p. 8. The ALJ found that the resident

was Ñ at all times relevant hereto was in an emergency situation. Ò Id. at p. 23 .

100 . In this case, R #1 was found partially on and off the bed kneeling

next to her bed with her head and neck caught between the bedrail and the

matt ress -- the apparent victim of a fall. When found, Pelican Garden staff

immediately repositioned her so that they could start CPR. Staff checked her

breathing, her pulse, and her body tempera ture. They called 911 before

calling the administrator. They were present when EMS arrived. They

answered all questions posed to them. And the EMTs did not perform CPR on

R #1 because she was already dead.

101 . Importantly, unlike the resident in Pine Mano r , R #1 was not in an

emergency situation. She had clearly passed and was dead when the staff

arrived.

102 . Under the facts and unique circumstances of this case, the decision of

Pelican Garden not to initiate CPR on R #1 upon finding her clearly dead did

not violate her right to access adequate and appropriate healthcare, and did

not constitute abuse or neglect by Pelican Garden of her rights under the

provisions of s ection 429.28.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that due to the unique circumstances of this particular case

the Agency dismiss the A dministrative C omplaint filed against Pelican

Garden and find that no violation occurred.

D ONE A ND E NTERED this 19th day of May , 2021 , in Tallahass ee, Leon

County, Florida.

S

R OBERT L. K ILBRIDE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of May , 202 1 .

C OPIES F URNISHED :

Dwight Oneal Slater, Esquire Elizabeth Anne Hathaway DeMarco

Cohn Slater, P.A. Agency for Health Care Administration

3689 Coolidge C ourt , Unit 3 525 Mirror Lake Drive North , Suite 330C

Tallahassee, Florida 32311 St. Petersburg, Florida 33701

Gisela Iglesias, Esquire Thomas M. Hoeler, Esquire

Agency for Health Care Administration Agency for Health Care Administration

525 Lake Mirror Drive North , Suite 330B 2727 Mahan Drive , Mail Stop 3

St. Petersburg, Florida 3 3701 Tallahassee, Flori da 32308

Richard J. Shoop, Agency Clerk James D. Varnado, General Counsel

Agency for Healthcare Administration Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3 2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308 Tallahassee, Florida 32308

S imone Marstiller, Secretary Shena L. Grantham, Esquire

Agency for Health Care Administration Agency for Healthcare Administration

2727 Mahan Drive, Mail Stop 1 Building 3, Room 3407B

Tallahassee, Florida 3230 8 2727 Mahan Drive

Tallahasse e, Florida 32308

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 iss ue the Final Order in this

case.