STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. )
) PERSONACARE OF ST. PETERSBURG, ) INC., d/b/a THE ABBEY ) REHABILITATION AND NURSING ) CENTER, )
)
Respondent. )
Case Nos. 02-4677
02-4678
)
RECOMMENDED ORDER
Pursuant to notice and in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2002), a formal hearing was held in this case, on April 3, 2003, in St. Petersburg, Florida, before Fred L. Buckine, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Eileen O'Hara Garcia, Esquire1
Agency for Health Care Administration Sebring Building, Room 310J
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
For Respondent: Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32302-0623
STATEMENT OF THE ISSUES
The issues for determination are whether allegations of the two four-count Administrative Complaints filed by Petitioner against Respondent are correct, and, if so, what penalty is appropriate.
PRELIMINARY STATEMENT
By separate Administrative Complaints dated October 30, 2002, the Agency for Health Care Administration (hereinafter AHCA) is seeking to impose a Conditional license and an administrative fine of $37,500 and survey fee of $6,000 for a total amount of $43,500. In each compliant, AHCA cited Personacare of St. Petersburg, Inc., d/b/a The Abbey Rehabilitation and Nursing Center (hereinafter Abbey), for three Class I deficiencies and one Class II deficiency in its survey of October 8, 2002. AHCA alleged in Count I that Abbey failed to develop and implement written policies and procedures regarding advanced directives; Count II that Abbey failed to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents; Count III that Abbey failed to provide or arrange services that meet professional standards of quality; and Count IV that Abbey failed to ensure that the residents are free of any significant medication errors.
The Administrative Complaint was filed following the death of a resident in Abbey's facility. In order to protect the resident's right to privacy, the Recommended Order does not identify the resident by name.
By Petition for Formal Administrative Proceeding, Abbey challenged the above four allegations and requested a formal hearing. On December 3, 2002, AHCA forwarded Abbey's request to the Division of Administrative Hearings, which scheduled and conducted this proceeding.
On December 4, 2002, the Initial Order was issued. The parties' joint response was filed on December 9, 2002. An Order of Consolidation was issued on December 10, 2002, and a Notice of Hearing, scheduling the final hearing for March 11 and 12, 2003, in St. Petersburg, Florida, and an Order of Pre-hearing Instructions was issued on December 12, 2002.
The motion for continuance filed by AHCA was granted by order dated March 7, 2003, rescheduling the final hearing for April 2, 2003. The final hearing date was amended to April 3, 2003.
At the final hearing, AHCA's motion to amend the Administrative Complaint for the effective date of the Conditional license to October 8, 2002, through October 28,
2002, was granted.
AHCA presented the testimony of two witnesses, Pam Marz and Pam Aronola, each an AHCA employee and surveyor. Accepted into evidence were AHCA's nine exhibits (P-A through P-I). Abbey presented the testimony of five witnesses: Sandra Hill, nursing home administrator; Lynn Homicillada, registered nurse, director of nursing and qualified as an expert in nursing care; Janice Delleart, licensed practical nurse; Harold Hawkins, M.D.; and Robert Miller, certified nursing assistant. Accepted into evidence were Abbey's 21 exhibits (R-1 through R-7 and R-9 through R-22).
Official Recognition was taken of Chapter 42 Code of Federal Regulations (C.F.R.) Sections 483.15 and 483.25; Sections 120.569 and 120.57(1), Florida Statutes (2000); Chapter
400, Part II, Sections 400.175, 400.23(7), and 400.23(8),
Florida Statutes (2000)2; and Florida Administrative Code Rules 59A-4.1288 and 28-106.216.
On April 28, 2003, the two-volume Transcript was filed with the Division of Administrative Hearings. On May 1, 2003, the parties filed a Joint Motion for Extension of Time to File Proposed Recommended Orders, and by Order dated May 2, 2003, the time for filing proposed recommended orders was extended to
May 30, 2002, thereby waiving the time requirement for this Recommended Order.
On May 22, 2003, the parties' Joint Motion for Second Extension of Time to file proposed recommended orders was filed, and, by Order dated May 23, 2003, the time for filing proposed recommended orders was again extended, thereby again waiving the time requirement for this Recommended Order. See Fla. Admin.
Code R. 28-106.216. Consideration was given to the Pre-Hearing Stipulation and post-hearing Proposed Recommended Orders in the preparation of this Recommended Order.
FINDINGS OF FACT
Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2002); and the record compiled herein, the following relevant and material facts are found herein below:
AHCA, at all times material hereto, is the agency for the State of Florida charged with licensing nursing homes in Florida pursuant to Section 400.021(2), Florida Statutes (2002), and the assignment of a licensure status pursuant to Section 400.23(7), Florida Statutes. AHCA is charged with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment.
AHCA is also responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288 that, in part, states, "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in
42 C.F.R. 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference."
Pursuant to Section 400.23(8), Florida Statutes, AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Section 400.23(2), Florida Statutes, are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional."
AHCA surveyors use the "State Operations' Manual" (SOM) as guidance in determining whether a facility has violated the Federal regulation, 42 C.F.R. Chapter 483.
The evaluation or survey of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings
on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form.
During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe have been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance violation.
Abbey is a nursing home located in St. Petersburg, Florida, licensed pursuant to Chapter 400, Florida Statutes.
On October 8, 2002, AHCA conducted a complaint investigation3 survey of Abbey. As to the federal compliance requirement, AHCA alleged in the four-count Administrative Complaints that Abbey did not comply with certain requirements, which are significant for this proceeding.
In Count I, AHCA alleged failure to implement written policies and procedures regarding advanced directives in violation of 42 C.F.R. Section 483.10(b)(8), Tag F-156.
In Count II, AHCA alleged failure to implement written policies and procedures to prohibit neglect of residents in violation of 42 C.F.R. Section 483.13(c), Tag F-224.
In Count III, AHCA alleged failure to provide or arrange services that meet professional standards of quality of care in violation of 42 C.F.R. Section 483.20(k), Tag F-281.
In Count IV, AHCA alleged failure to ensure that residents are free of any significant medication errors in violation of 42 C.F.R. Section 483.25(m), Tag F-333.
As to state licensure requirements of Section 400.23(7) and (8), Florida Statutes, and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that Abbey had failed to comply with state established rules. Under the Florida classification system, AHCA classified the noncompliance in Tag F-156, Tag F-224, and Tag F-281 as Class I deficiencies and classified the noncompliance in Tag F-333 as a Class II deficiency.
When AHCA finds violations in a facility, it assigns a classification based on the severity of the specific violation. The classifications are Class I, Class II, Class III, or
Class IV, with Class IV being the least severe.
Class I means a deficiency in which immediate corrective action is necessary because noncompliance has caused or is likely to cause serious injury, harm, impairment, or death to a resident.
Class II means a deficiency which has compromised the resident's physical, mental, or psychological well being, but which does not require immediate corrective action.
AHCA also assigns a "scope" rating to an alleged deficiency. Scope is either "isolated," "patterned," or "widespread."
An isolated deficiency is a deficiency that affects one or a very limited number of staff or is a situation that occurs only occasionally or in a very limited number of locations. A widespread deficiency is a deficiency in which the problems are pervasive in the facility or which represents systemic failure that has affected or has the potential to affect a large portion of the facility's residents.
Based upon the three Class I deficiencies and the one Class II deficiency discovered during the complaint investigation survey, AHCA assigned a "Conditional" licensure status to Abbey commencing October 8, 2002, through October 28, 2002.
As of September 15, 2002, Resident 1 was housed in the Windmoor Healthcare drug rehabilitation treatment center located in Clearwater, Florida. While there, her rehabilitation program included taking the following prescribed medications: Effexor, Trazodone, Depakote and Zyprexza, for mood swings and depression.
On September 19, 2002, Abbey admitted Resident 1 for the limited purpose of undergoing a pain management program. Resident 1's pain management treatment consisted, in part, of the prescribed medication Vicodin (brand name for the generic drug hyrdocodone/acetaminophen) in preparation for her future endometriosis surgery.
At the time of her admission, Resident 1, a 23-year- old female, weighed approximately 190 pounds; had multiple diagnoses, including bipolar disorder, depression, polycystic kidney disease, cystitis, herpes, endometriosis, and infections; and had a history of drug abuse. She was ambulatory, competent, alert, oriented, and independent, requiring no special assistance or treatment, and was assigned a semi-private room. Resident 1 was not restricted to the facility. She was free to leave the facility only during the day and was required to return each evening. During one or more days, she left the facility and returned each night material to this proceeding.
Resident 1 designated herself a "full-measure" resident. A "full-measure" resident is one whose admission medical record contains the resident's election that requires immediate initiation of "compressions and breathing" assistance including Cardio Pulmonary Resuscitation (CPR) and other life- saving efforts, if at any time the resident is found to be non- responsive and/or not breathing. Abbey's policies and
procedures required staff to first assess a non-responsive resident; have someone ascertain if the resident is Do Not Resuscitate (DNR) or No Do Not Resuscitate (NO DNR), and if NO DNR initiate "compressions and breathing" assistance including CPR and other life-saving efforts immediately.4 As used by the witnesses in this case, the term "full measure" is synonymous with NO DNR; therefore, Abbey's staff is required to initiate “compression and breathing" assistance immediately on "full- measure" residents.
Resident 1 did not self-medicate. Harold Hawkins,
M.D. (Dr. Hawkins), Resident 1's treating physician, previously prescribed two Vicodin tablets every eight hours as needed for pain before Resident 1's admission to Abbey. The most frequent adverse reactions of the prescribed medication Vicodin are vomiting, lightheadedness, dizziness, drowsiness, constipation, sedation, nausea, sleepiness and spasm of the urethra, which can lead to difficulty in urination. Abbey's Prescriber Medication Orders policy and procedures required its nursing staff to inquire, to know, to assess and to administer the correct prescribed medication to its residents.5
On September 23, 2002, five days after her admission into the facility, Dr. Hawkins visited Resident 1. During his midday visit, Resident 1 was somewhat lethargic but responsive. At the conclusion of his visit, Dr. Hawkins entered a written
medication change order in Resident 1's medical chart regarding her pain management treatment program. He reduced Resident 1's dosage from two Vicodin tablets every eight hours as needed for pain to one Vicodin tablet every eight hours as needed for pain. To evaluate the effect of the reduction in her medication dosage, Dr. Hawkins entered a physician's order requiring staff to take urine samples from Resident 1 throughout the night.
This physician's order was not followed by staff nor did staff contact the physician and inform him of their failure.
On September 23, 2002, at approximately 7:30 p.m., some six hours after Dr. Hawkins ordered reduction of medication to one Vicodin tablet as needed for pain, the 3:00 p.m.-to- 11:00 p.m. shift nurse, unaware of Dr. Hawkins' ordered reduction in the prescribed medication dosage of Vicodin, gave Resident 1 a dosage of "two" Vicodin tablets.
After ingesting two Vicodin tablets, Resident 1 went onto the facility's smoking porch. There she fell asleep in a chair and from approximately 7:40 p.m. until approximately 11:30 p.m., she snored loudly while asleep. Janice Dellaert (Dellaert), registered nurse (RN), was the 11:00 p.m.-to- 7:00 a.m. duty nurse on September 23 and the morning of September 24, 2002. On September 23, 2002, the 3:00 p.m.-to- 11:00 p.m. shift nurse informed Dellaert when she came on duty that Dr. Hawkins had visited with Resident 1 earlier that day.
The 3:00 p.m.-to-11:00 p.m. shift nurse shared with Dellaert her opinion that during her shift, Resident 1 "was somewhat 'sleepier' than usual and to keep an eye on her to make sure she was alright during the night." The evidence demonstrated that Dellaert did not heed the cautionary advice given her. At 11:30 p.m., the nursing staff aroused Resident 1 from her four- hour nap. Once awakend, Resident 1's condition was described as somewhat dizzy, slightly disoriented, and able to ambulate to her semi-private room without assistance. Once in bed, Resident 1 went to sleep and resumed her loud snoring throughout the night of September 23, 2003.
The credible evidence demonstrated that on
September 23, 2002, at approximately 11:30 p.m., Resident 1 was in the condition of being responsive to stimulated arousal efforts and was capable of being aroused from sleep after ingesting two Vicodin tablets some three hours and 50 minutes earlier. Based upon credible and material evidence adduced, a reasonable inference is that Resident 1's 11:30 p.m. capacity to be aroused apparently began to diminish throughout the night and continued diminishing into the early morning hours. Resident 1's gradual diminishing of responsiveness was either undetected or ignored by the night duty nurse.
At approximately 3:00 a.m., on the morning of September 24, 2002, Robert Miller (Miller), an experienced
certified nursing assistant (CNA), came on duty. Following his normal service routine to those residents assigned to him, he would enter each resident's room, fill the ice-water jug and pass out new drinking cups. He briefly observed each resident when he entered each room. Miller observed Resident 1 when he entered her room, but noticed only that she was snoring loudly. Thus, at 3:00 a.m., four hours after having been aroused and put to bed, Resident 1 was alive.
Dellaert recalled from memory that between 11:30 p.m. on the 23rd to 6:30 a.m. on 24th of September 2002, she entered Resident 1's room on three different occasions, awakened her, and attempted to give her medication and take her urine samples. According to Dellaert, Resident 1 was uncooperative, refused to take the medication, and refused to give urine samples on each occasion. During her three visits with Resident 1, Dellaert recalled that she observed no change in Resident 1's condition from her earlier condition (aroused-then sleeping and snoring loudly) at 11:30 p.m. on September 23, 2002. Dellaert, however, chose not to assess Resident 1 by taking her vital signs and chose not to call Dr. Hawkins regarding Resident 1's alleged lack of cooperation in giving urine samples. She chose not to inform him of the medication error of administering two Vicodin tablets to Resident 1. Dellaert's decisions violated Abbey's Prescriber Medication Orders policy.
Comparing Dellaert's recollection testimony of her actions and those of Resident 1 the morning of September 24, 2002, to her nurses' note entries covering five hours from 12:00 a.m. to 5:00 a.m. revealed contradictions.
Dellaert's initial nurses' note entry covered an hour and 15 minutes from 5:00 a.m. to 6:15 a.m., on September 24, 2002. In that single entry Dellaert entered: "[I] attempted X3 to arouse resident [1] and unable to arouse-snoring very loudly on bed during this time." (emphasis added) This entry contradicts her recollection testimony in paragraph 29 hereinabove.
Confronted with a loudly snoring resident, who was non-responsive to stimulated arousal throughout an approximate six-hour period as reflected in her nurses' note entry hereinabove, Dellaert chose not to inform Dr. Hawkins of her inability to get the ordered urine sample from this resident. She chose not to inform the doctor that she had not taken the vital signs of the resident. Dellaert chose not to inform the doctor that Resident 1 had been given two Vicodin tablets instead of one Vicodin tablet as ordered.
It was the responsibility of Abbey's nursing staff to inform the physician that Resident 1 would not take the prescribed medication nor give the ordered urine sample. The above choices made by Dellaert exemplified her failure, as an
experienced, professional nurse, to provide nursing care in conformity with required professional nursing care standards.
Credible evidence established that staff made no attempt to arouse and awaken Resident 1 during the six-hour period between approximately 12:00 a.m. to the early morning hours of approximately 5:30 a.m. on September 24, 2002. The evidence supports a reasonable inference that if staff had attempted to arouse Resident 1 three times and could not do so, the failure to investigate and to determine the cause of Resident 1's non-responsiveness was not an oversight, but was intentional. If, however, one accepted Dellaert's recollection that Resident 1 was aroused on three separate occasions and intentionally refused to take medication or give urine samples, one is led to conclude that Dellaert's failure to report Resident 1's refusals to her treating physician was also intentional.
Based on the foregoing, viewed either independently or collectively, and upon reasonable inferences, the evidence convincingly demonstrated that Resident 1 had undergone a change from her responsive condition at 11:30 p.m. to a non-responsive condition at 6:15 a.m. As a direct result of staff's failure and/or refusal to recognize and to note this change in
Resident 1's condition, there was created and continued to exist the distinct possibility of "impending harm" to Resident 1.
Taking no action under these particular circumstances exemplified nursing care conduct beneath the standard of care required of an experienced, knowledgeable, and professional nursing staff.
Between 6:45 a.m. to 7:00 a.m. on September 24, 2002, Edwina Burke (Burke), RN, came on duty to relieve Dellaert. Dellaert recalled informing Burke that she had awakened Resident 1 several times throughout the night and that the resident repeatedly refused to take medication and give a urine sample. Upon entering the resident's room at approximately 6:34 to 6:40 a.m., Burke found Resident 1 on the floor of her bedroom, between the bed and the nightstand, lying on her
stomach with vomitus "coming" out of her mouth. At the time she was found, staff described Resident 1's condition as "lips appeared bluish in color, her fists were clenched, and her feet were warm." Burke did not take Resident 1's pulse nor did she check her vital signs when she found her on the floor. Burke did not initiate CPR when she found Resident 1 on the floor.
Her initial response was to give instructions to Dellaert to "call 911 and to get paper work prepared to send Resident 1 to the hospital" and to find Miller because "she needed him on the floor to help her with something." From her initial actions and instructions, viewed either independently or collectively, and upon reasonable inference, Burke then considered Resident 1
to have been (alive and) in need of immediate hospitalization. Likewise, from the acquiescence by Dellaert, a reasonable inference is that Dellaert agreed with Burke; Resident 1 was (alive and) in need of hospitalization. This inference is buttressed by the fact that Burke and Dellaert chose not to do an assessment, initiate CPR or any other compression breathing assistance on Resident 1 at any time during their presence in Resident 1's room, in violation of Abbey's CPR policy and procedures.
At all times material, Burke did not know whether Resident 1 was DNR (no CPR) or NO DNR (CPR) (i.e. “full measure”). Burke's lack of knowledge was the result of her failure to dispatch someone to review Resident 1's resident care plan file as required by Abbey's CPR policy and procedures. It is significant to note here that Resident 1's resident care plan and medical records identified her as a "full-measure" resident (i.e. when found non-responsive-Abbey's policy and procedures require staff to immediately initiate "compression and breathing" assistance, including initiating CPR and other life- saving efforts). Abbey's CPR policy and procedures do not include the specific term "full-measure" resident. This lack of specificity coupled with only requiring ascertaining whether a non-responsive resident is DNR (no CPR) or NO DNR (CPR), could create confusion among staff.
When Miller arrived, Burke instructed him to "get a sheet, come, and help me get her off the floor and back in bed." Miller, trained in administering CPR, did not initiate CPR on Resident 1. When the crash cart arrived, neither Burke nor Dellaert, utilizing the equipment thereon, attempted breathing assistance or attempted revival of this resident. The evidence established that Abbey's three CPR qualified staff members (Burke, Dellaert, and Miller) were simultaneously present in Resident 1's room on the morning of September 24, 2002, and not one initiated "compression and breathing" assistance, CPR nor any other life-saving efforts on Resident 1 (a full-measure/NO DNR resident).
When she returned to the resident's room, Dellaert observed her colleagues place Resident 1 in bed and, at that time, concluded Resident 1 was dead. According to Dellaert, Burke informed her that she had tried but did not get a pulse (presumably during her absence from the room) from Resident 1. Between 7:00 a.m. and 7:05 a.m., Dellaert made a nurses' note entry that stated: "CPR was initiated before the paramedics arrived." When questioned, Dellaert acknowledged that "someone" (unnamed in the record) told her to make that entry but she had no personal knowledge of anyone "initiating CPR before the paramedics arrived." Dellaert, continuing: "When I returned from calling 911-I told them not to move Resident 1 because
that's what the paramedics instructed me-but Edwina Burke and Miller had already turned her over on her back." Dellaert had no personal knowledge of what occurred, if anything, when she was not present in the room.
Following removal of the resident's body, Abbey conducted its internal investigation of the circumstances surrounding the death of Resident 1. After completing its investigation, Abbey's director of nursing, Lyn Homicillada, reviewed the investigative findings. She concluded Dellaert and Burke to have been negligent-"in their failure to follow written policies and procedures regarding advanced directives"- while on duty the night and morning of Resident 1's death. Because of their negligence while on duty (by their joint failure to follow policies and procedures regarding advance directives), Abbey terminated Burke on October 2, 2002, and Dellaert on October 9, 2002. Dellaert understood her termination was--"because of the particular resident (Resident 1) passing away." The expert opinion testimony of Lyn Homicillada that nursing decisions made by Dellaert and Burke were appropriate under Abbey's advance directives and, therefore, permissible decisions is contrary to the facts and to the written policies and procedures regarding advance directives and is therefore rejected.
Through interviews conducted with three randomly selected staff members, AHCA clearly demonstrated those staff
members: (1) were unable to determine whether a resident was "full-measure" (use every attempt to resuscitate) because the color code system6 did not have a color code to identify a "full- measure" resident; (2) understood the yellow dot meant do not resuscitate (DNR) when found non-responsive; (3) were unable to identify a color code symbol regarding full-measure advanced directives; and (4) were unable to identify the specific locations of the crash carts within the facility.
Through a random check of several residents' medical records, AHCA proved that three of those residents on the DNR list did not have DNR identifying yellow dots (policy/procedure required each DNR resident to have a yellow dot sticker in their medical records, on their bed-side medical charts and on their arm/wrist bands). To assist the staff's identification of each color of the color-coding system, staff I.D. tags worn during duty had colored coded dots on the back of each I.D. tag. Even though Abbey had in place a system of identification regarding the DNRs, there existed a lack of consistency in its application and a lack of understanding, among at least three staff members, of the DNR/advanced directives system regarding what to do when confronted with a non-responsive resident who had elected "full- measure" treatment. Neither the advance directives nor the color code system included "full-measure" residents.
Through the admissions of three staff members, it was established that Abbey's policies and procedures did not include provisions nor had Abbey provided training for its staff on the critical issue of "when to" initiate CPR on "full-measure" (NO DNR) residents who were found non-responsive.
AHCA proved that Abbey failed to include in its policies and procedures an essential written proviso regarding: first, the term "full measure," also used to identify a NO DNR resident; and second, the critical issue of "when to" initiate CPR on "full-measure" residents as a life-saving effort based on advanced directives as alleged in Tag F-156. Abbey's policy and procedures did not include the term "full-measure" residents.
AHCA alleged in Tag F-281 a "failure to meet a quality of care requirement by failing to meet professional standards of practice." Specifically, AHCA alleged that Abbey (1) failed to continually assess Resident 1 throughout the evening and early morning hours preceding her death; (2) failed and/or refused to notify Resident 1's physician, Dr. Hawkins, of the resident's "failure to respond" after three attempts to arouse her were made; (3) failed to correctly administer pain medication; and
(4) failed to initiate CPR on a "full-measure" resident. In violation of Abbey's written policy and procedures regarding Prescriber Medication Orders and CPR General Guidelines for Assessment.
Between 7:00 a.m. and 7:05 a.m., Dellaert made a nurses' note entry that stated: "CPR was initiated before the paramedics arrived." By admission, Dellaert acknowledged that "someone" (unnamed in the record) told her to make that entry but she had no personal knowledge of anyone "initiating CPR before the paramedics arrived." In explaining this nurses' note entry, Dellaert admitted she was "wrongly assuming the other nurse [Burke] started CPR-but she didn't."
AHCA proved that Abbey's nursing staff:
(1) failed to continually assess Resident 1 throughout the evening and early morning hours preceding her death on September 24, 2002; (2) failed to initiate CPR; (3) failed to correctly administer pain medication; and (4) failed and/or refused to notify Resident 1's physician, Dr. Hawkins, of Resident 1's "refusing medication and lack of response." These failures constitute violations of Abbey's policies and procedures regarding CPR, Prescriber Medication Orders, and Physician Notification requirements.
Dellaert acknowledged a familiarity with Abbey's written policies and procedures regarding residents who did not sign advanced directives and those residents who have a DNR and those residents who elected "full measure." She had prior training on Abbey's policy and procedures regarding "how to" administer CPR. When a non-responsive resident is discovered,
the facility's written policy and directives require staff to:
assess (checking vital signs) and determine the resident's non-responsiveness (breathing or not breathing) by tapping or gently shaking the resident and shouting, "Are you okay”;
call out for help; and (3) delegate a specific individual to check the resident care plan for DNR (do not administer CPR) or NO DNR (administer CPR) order and call paramedics, attending physician, and administrative personnel. The above "procedures" to assess and determine Resident 1's non-responsiveness, to notify the attending physician, and to determine a reason for her breathlessness when she was discovered on her bedroom floor were not followed by either Burke or Dellaert. It is significant and noted that the above-referenced procedure makes no mention of a NO DNR resident who is identified by the term "full-measure" as opposed to residents who are identified by acronyms DNR or NO DNR.
Dellaert, again from memory, disavowed any knowledge of Abbey's policies and procedures booklets containing instructions to the nursing staff on "when to" administer CPR to a non-responsive resident (to include a "full-measure" resident). She had not attended nor did she know of any staff training on "when to" initiate CPR on a non-responsive, "full- measure" resident. A reasonable inference is that Dellaert did
not fully understand the term "full measure" to have the same meaning, regarding CPR treatment, as the acronym NO DNR.
AHCA proved that Abbey failed to implement written policies, procedures, and training regarding advanced directives, by omission of clearly written policy and procedures regarding "when to" initiate CPR to residents who are identified by the term "full-measure" resident. Abbey's policies and procedures do not provide a system to inform and alert staff working the facility floor of the resident's election of "full- measure" (i.e. NO DNR) immediate CPR treatment. The "full- measure" information is contained in a resident's medical files and required checking the non-responsive resident's medical record file before administering CPR to the resident. The delay, to the determent of the non-responsive "full-measure" resident, is to determine if CPR is to be administered to the resident based upon the resident's election of DNR or NO DNR.
Upon finding Resident 1 non-responsive, on the bedroom floor between the nightstand and bed, staff did not check for a pulse, did not take vital signs, and did not send anyone to check her medical records. Staff did not initiate CPR nor call Resident 1's physician. Staff did not use the crash cart equipment when it arrived. Confronted with these specific circumstances in the early morning hours of September 24, 2003, Abbey's nursing staff chose to return Resident 1 to her bed.
After returning Resident 1 to her bed, Abbey's nursing staff called 911 for Emergency Medical Technicians (EMTs) who arrived some three to eight minutes after receiving the call. The EMT took Resident 1's vital signs, initiated CPR, got no response, and pronounced Resident 1 dead at approximately
7:10 a.m. on September 24, 2002.
Abbey's nursing staff's failure to assess the non- responsive resident and the failure to initiate compression breathing and other life saving measures, including initiating CPR, to the "full-measure" (NO DNR) resident constituted a violation of Abbey's existing policy and procedures regarding discovery of a non-responsive resident. The policy and procedures required checking for vital signs, determining from the medical chart whether the resident is DNR or NO DNR, and following through with compression breathing and other life saving measures or not.
It is reasonable to assume that finding a "full- measure" resident non-responsive and face down on the floor created the time and the occasion for a professional nursing staff to conclude that such time was the appropriate time and appropriate occasion "when to" initiate CPR on a non-responsive resident. The assumption is valid whether or not staff knew, at that moment, if the resident was identified "full-measure" or NO DNR.
The finder of fact is not determining whether CPR would have revived or would have prevented Resident 1's death. The unrefuted evidence demonstrated that upon finding the resident on the floor of her bedroom, Resident 1 was not clinically dead. Confronted with those circumstances, staff made no attempt to ascertain whether the resident was "NO DNR," "DNR" or "full-measure"; failed to administer resuscitative efforts; and, thereby, failed to attempt and failed to provide care and services that met professional standards of quality of care of a professional nursing practice. Abbey's argument that Resident 1 was in rigor mortis at approximately 7:00 a.m. when discovered on her bedroom floor is a false cause argument without foundation in fact and summarily rejected by the fact finder. Assuming arguendo that the expert opinion of Abbey's director of nursing--"rigor mortis occurs after a person is dead and, for a person the size of Resident 1, it would take less than two hours [i.e. between 5:00 a.m. and 7:00 a.m.]" is accepted; Resident 1's death would then have occurred during the 5:00 a.m. to 6:15 a.m. time span. During this very time span, Dellaert testified and included in her nurses' notes that Resident 1 was (alive and) "snoring very loudly."
Based upon credible evidence, AHCA proved that Abbey's staff failed to assess and to continually assess Resident 1 throughout the night of September 23, 2002, from 12:00 a.m.
through the early morning hours of September 24, 2002, between 6:15 a.m. and 7:00 a.m.
AHCA proved that Abbey's nursing staff failed and refused to notify Resident 1's physician, Dr. Hawkins, of Resident 1's "failure to respond" during the time span of
12:00 a.m. through 6:30 a.m. to 7:00 a.m. on September 24, 2002.
58.. AHCA proved that Abbey's nursing staff failed to correctly administer prescribed pain medication to Resident 1, by proving that staff gave her a dosage of two Vicodin tablets within six hours after Dr. Hawkins ordered her medication be reduced to one Vicodin tablet dosage as needed for pain.
AHCA proved that Abbey's nursing staff failed and refused to follow Abbey's directives and policy upon discovering Resident 1 on the floor non-responsive. The policy and procedures required staff, when a resident is found non- responsive (without specific reference to NO DNR or DNR), to make an assessment (check vital signs) to determine responsiveness (have someone ascertain from medical records if resident is DNR or NO DNR), and if NO DNR, immediately initiate "compression and breathing" assistance, to include immediate initiation of CPR and other life-saving efforts. Staff chose to ignore all of the above policy and procedural requirements.
Tag F-333 alleged that Abbey failed to ensure that Resident 1 was free of any significant medication error.
Resident 1 was not given the correct medication as ordered by her treating physician, Dr. Hawkins, during his earlier visit on September 23, 2002. Within less than six to eights hours after Dr. Hawkins' medication change order of September 23, 2002, staff gave Resident 1 two tablets of the prescribed drug Vicodin. It is significant that no evidence of record suggests that Dellaert or Burke knew of the medication change order.
Additionally, the fact that Resident 1's certificate of death report list the cause of death as "morphine toxicity" and the manner of death as an "accident" does not absolve nor mitigate Abbey's responsibility to administer the correct dosage of medication as ordered by the resident's physician and contained in her residential medical record.
At all times material, Abbey had in place written policies and procedures regarding: CPR, Resuscitator (Manual, Portable),7 Prescriber Medication Orders, and Physician Notification. Other than the written requirement that a resident's election of "full-measure" treatment be included in that resident's care plan file, the omission of any references to "full-measure" (compared to NO DNR) resident elsewhere in Abbey's policies and procedures under consideration herein is systemic and the primary causation factor in this case. The only implied reference to a "full-measure" resident is found in the provision requiring staff to: "delegate a specific
individual to check resident care plan for DNR or No DNR [and “full measure”] order."
Abbey's CPR policy and procedures does not include the term "full-measure" (NO DNR) residents and does not include nor refer to a color code system as a means of identifying a "full- measure" resident, thereby enabling an immediate identification and determination when a "full-measure" resident is found breathless to initiate CPR. AHCA proved by evidence that is clear and convincing that Abbey's staff was negligent in their failure to immediately identify Resident 1 as a "full-measure" (NO DNR) resident and to immediately implement CPR procedures when Resident 1 was found non-responsive on the floor. The evidence is equally clear that the staff did not initiate CPR or any other compression breathing procedures on Resident 1 at any time during the morning of September 24, 2002.
AHCA assigned a Class I deficiency to Tag F-156 (advance directives), Tag F-224 (neglect of residents), and Tag F-281 (beneath standard of quality of care).
The staff demonstrated inconsistency in their knowledge of the facility's DNR/advance directive system.
Tag F-224 generally alleged failure to provide or arrange services that meet professional standards of quality care through the implementation of the policy that prohibits neglect of residents. When Abbey's nursing staff found
Resident 1 non-responsive on the floor, staff made two decisive choices. Staff chose not to take her vital signs to assess her condition and staff chose not to initiate "compression breathing" or CPR. As a result of Resident 1's death, Abbey investigated and dismissed both nurses for not following Abbey's policies and procedures regarding advanced directives that were directly related to the critical time period preceding the death of Resident 1. Immediate corrective action is necessary to prevent similar reoccurrences that would cause or is likely in the future to cause serious injury, harm, impairment, or death to other "full-measure" residents found non-responsive in the facility.
The evidence clearly and convincingly demonstrated that at every critical juncture, staff chose to neglect the appropriate care of Resident 1. Staff did not recognize or chose to ignore clinical signs of distress (continuous loud snoring) and/or pending death (inability to be aroused over an extended time period). Staff chose not to assess Resident 1's condition by taking her vital signs when confronted with a non- responsive resident. Staff chose not to notify Resident 1's physician and inform him of her condition and inform him of the amount of medication administered to her. Staff chose not to seek advice, direction and medical instructions from the physician. In view of the cited conduct of Abbey's professional
nursing staff, immediate corrective action is necessary because staff's non-compliance and lack of training caused or is likely in the future to cause serious injury, harm, impairment, or death to "full-measure" residents found non-responsive in this facility.
Tag F-281 generally alleged failure to meet a quality of care requirement by the failure to meet professional standards of practice. Staff chose not to assess and continually assess Resident 1, the night of September 23, 2002, and early morning hours of September 24, 2002. Staff chose not to check or not to accept or lacked the ability to identify non- responsiveness of Resident 1 as a "change in condition." Staff did not possess knowledge and/or training of "when to" initiate "compression breathing," CPR, or other life saving efforts on a "full-measure" (NO DNR) resident found on the floor of the facility. Staff was negligent in administering the incorrect dosage of a controlled drug pain medication with the known side effect of "sleepiness." Staff chose not to inform the physician that his patient, who was snoring loudly, had been administered incorrect medication. Immediate corrective action is necessary. Non-compliance by staff resulting from either omissions in facility policies and procedures and/or staff's lack of knowledge and training regarding the above-cited areas of professional responsibility has caused or is likely in the
future to cause serious injury, harm, impairment, or death to another "full-measure" (NO DNR) resident similarly situated.
Tag F-333 generally alleged that Abbey had failed to ensure that Resident 1 was free of any significant medication errors. The physician's medication order decreased Resident 1's level of Vicodin from two tablets to one tablet approximately seven hours before staff gave two tablets to Resident 1. The two-tablet medication error contributed to an increase in one of its side effects- "sleepiness." Earlier, when Resident 1 was given one Vicodin tablet she was capable of being aroused and awakened four hours later. When she was given two Vicodin tablets at approximately 11:30 p.m., assuming staff did attempt unsuccessfully to arouse Resident 1 on three occasions thereafter throughout the night, staff chose not to inform the attending physician of the change, from 11:30 p.m. (arousal) to early morning (non-arousal), in condition Resident 1 had undergone.
The admitted failure of staff to administer the correct medication dosage caused actual harm to Resident 1. Though the seven-hour delay from administering the incorrect dosage of medication to the jeopardy in which Resident 1 was put may not have been immediate; the medication error was none the less a contributing factor to her increased "sleepiness."
Resident 1's inability to be aroused, after three attempts, if made, is a change from the 11:30 p.m. condition when she was aroused, awakened, and put to bed. Abbey's nursing staff chose not to report the difficult-to-be-aroused change in the resident's condition to her physician. This choice was a direct violation of Abbey's Physician Notification policy in effect at the time.
AHCA also assigns a "scope" rating to an alleged deficiency. A scope can be "isolated," "patterned," or "widespread."
Tag F-156 alleged and AHCA proved that Abbey's policy and procedures did not contain directives to staff regarding "when to" initiate CPR on a resident whose medical records reflect their election of "full-measure" when found by staff to be non-responsive. Through interviews with at least three other staff members and the testimony of two nurses, AHCA proved that five staff members did not know "when to" initiate CPR on non- responsive residents. Likewise, Abbey had not trained those five staff members on how to assess and identify situations such that they would know "when to" initiate CPR on non-responsive, "full-measure" residents. A lack of knowledge and a lack of staff training by the facility contributed to staff's failure to administer CPR to Resident 1 when she was discovered in a non- responsive condition. Abbey has the obligation and
responsibility to educate and train its staff. Abbey's failure to educate and train its staff resulted in five staff members not knowing "when to" administer CPR to a non-responsive resident. Such lack of training is pervasive and widespread among staff. The scope of the negative effect of this lack of training includes every "full-measure" (NO DNR) resident found non-responsive. This lack of training poses a real and potential impact on every non-responsive, "full-measure" resident found in the facility. The omission of advance directives specifically including identification, assessment, and treatment of a "full-measure" resident in Abbey's policies and procedures is systemic.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2003).
Section 120.569(1), Florida Statutes (2003), applies in all proceedings in which the substantial interest of a party is determined by an agency. Section 120.57(1), Florida Statutes (2003), applies in those proceedings involving disputed issues of material fact. Abbey is a facility substantially affected by the conditional rating.
AHCA bears the burden of proof of alleged deficiencies and consequences for the deficiencies. Florida Department of
Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
AHCA's burden of proof relating to a conditional rating is by a preponderance of the evidence, failing a contrary instruction set forth in Chapter 400, Part II, Florida Statutes.
§ 120.57(1)(j), Fla. Stat. (2003). The burden of proof is on AHCA. See Beverly Enterprises v. Agency for Health Care
Administration, 745 So. 2d 1133 (Fla. 1st DCA 1999). The burden of proof to impose an administrative fine is by clear and convincing evidence. Department of Banking and Finance v.
Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).
A nursing home licensed in this state is given a quality rating on the basis of its substantial compliance with two independent bodies of law: state law and federal law. The quality rating of nursing homes is unique to the State of Florida. While federal law deficiencies, for purposes of sanctions, may fall under any of the regulations in 42 C.F.R. Part 483, Florida Administrative Code Rule 59A-4.128, effective October 13, 1996, through May 5, 2002, for rating purposes, limits the consideration of federal deficiencies to those federal deficiencies constituting "substandard quality of care."
"Substandard quality of care" refers only to a certain level of non-compliance with three particular sections of 42 C.F.R. Part 483: to wit, Sections 483.13, 483.15, and 483.25. Florida Administrative Code Rule 59A-4.128's use of "substandard quality of care" was added by the amendment to the rule of October 13, 1996, and was recognized in rule challenge proceedings as an appropriate reference for federal law in Florida Health Care Association v. Agency for Health Care Administration, 18 F.A.L.R. 3458, 3471 (DOAH 7/16/96).
The state "Class I," "Class II," "Class III," and "Class IV" scheme of deficiencies is simply broader than the federal "substandard quality of care" scheme. There is no indication in Chapter 400, Part II, Florida Statutes, that the legislature intended the statutory definitions to be limited by federal law. Thus, under Florida Administrative Code Rule 59A- 4.128(4), effective October 13, 1996, through May 5, 2002, a nursing home is rated as conditional if one of the state "class" deficiencies is found or if one of the federal "substandard quality of care" deficiencies is found.
In summary, a separate inquiry into substantial compliance with (1) state law and (2) federal law is required to ascertain the proper quality rating of a nursing home.
"F" tags are Center for Medicare and Medicaid Services (CMS) (formerly Health Care Financing Administration (HCFA))
data tags assigned to each of the federal regulatory requirements for long-term care facilities and are found in
42 C.F.R. Chapter 483.
Interpretive guidelines are found in the State Operations Manuel (SOM) required of states in conducting surveys for Medicare and Medicaid certification. In conducting surveys, AHCA's surveyors rely on these guidelines in determining whether a facility is in compliance with 42 C.F.R. Chapter 483;
42 C.F.R. Section 483.15(b)(1), in relevant part, states that:
Self-determination and participation. The resident has the right to--
Choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care;
Section 400.23(7)(b), Florida Statutes, provides in pertinent part:
(7) The agency shall, at least every
15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a rating to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations and inspections. The agency shall assign a licensure status of standard or conditional to each nursing home.
* * *
(b) A conditional rating means that a facility, due to the presence of one or more Class I or Class II deficiencies, or Class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part, with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies as the time of the follow-up survey, a standard license may be assigned.
AHCA's Florida Administrative Code Rule 59A-4.128 describes the same requirements as the statute cited above and adopts by reference the applicable federal regulations. With one exception, not relevant here, Florida Administrative Code Rule 59A-4.128 was determined valid in Florida Health Care Association, Inc., et al. v. Agency for Health Care Administration, (DOAH Case Nos. 96-4367RP and 95-4372RP, Order entered July 16, 1996).
The federal regulations at Title 42 C.F.R. Part 483, Subsection B, provides in pertinent part:
Section 483.25 Quality of Care
Each resident must receive and the facility must provide the necessary care and services to attain or maintain the highest practicable physical, mental, and psychosocial well being, in accordance with the comprehensive assessment and plan of care.
Title 42 C.F.R. Section 483.10(b)(8) provides:
The facility must comply with the requirements specified in subpart I of part
489 of this chapter relating to maintaining written policies and procedures regarding advance directives. These requirements include provisions to inform and provide written information to all adult residents concerning the right to accept or refuse medical or surgical treatment and, at the individual's option, formulate an advance directive. This includes a written description of the facility's policies to implement advance directives and applicable State law.
Facilities are permitted to contract with other entities to furnish this information but are still legally responsible for ensuring that the requirements of this section are met. If an adult individual is incapacitated at the time of admission and is unable to receive information (due to the incapacitating condition or a mental disorder) or articulate whether or not he or she has executed an advance directive, the facility may give advance directive information to the individual's family or surrogate in the same manner that it issues other materials about policies and procedures to the family of the incapacitated individual or to a surrogate or other concerned persons in accordance with State law. The facility is not relieved of its obligation to provide this information to the individual once he or she is no longer incapacitated or unable to receive such information. Follow-up procedures must be in place to provide the information to the individual directly at the appropriate time.
42 C.F.R. Section 483.13(c) provides in pertinent part:
Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment,
neglect, and abuse of residents and misappropriation of resident property.
42 C.F.R. Section 483.20(k)(1) and (3) provides in pertinent part:
(k) Comprehensive care plans.
The facility must develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment. The care plan must describe the following--
The services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well being as required under
§ 483.25; and
* * *
The services provided or arranged by the facility must--
Meet professional standards of quality; and
Be provided by qualified persons in accordance with each resident's written plan of care.
A holistic review of the documentary evidence and the testimony presented by AHCA, including reasonable inferences drawn from such evidence, clearly and convincingly demonstrated the staff's failure to take appropriate action (or choosing to take no action) was a contributing factor effecting the death of Resident 1.
42 C.F.R. Section 483.25(m) addresses medication errors:
Medication Errors--The facility must ensure that--
It is free of medication error rates of five percent or greater; and
Residents are free of any significant medication errors.
42 C.F.R. Section 483.25(m)(1) does not apply to this case because this standard governs the sampling of intentional medication error in administration of overall medication in the facility, not an isolated mistaken administration of drugs as in this case.
42 C.F.R. Section 483.25(m)(2) applies to this case and presents the decisive question of whether the resident who is the subject of a medication error suffered a "significant medication error" that is prohibited by 42 C.F.R.
Section 483.25(m)(2).
At all times after the medication error, the record revealed that Resident 1 was not aroused by staff and was unable to be awakened. This medication error, coupled with a lack of quality care by staff, jeopardized Resident 1's state of health. Abbey's staff's intentional delay, the nurses failure to detect the medication mistake, inability to awaken a loudly snoring resident over a prolonged period, failure to take and record vital signs, selected refusal to consult with the physician, and
mutilation of nurses' note entries are all contributing factors to the resulting death of Resident 1. The credible, substantial, and material evidence, clearly and convincingly, leads to the conclusion that the medication error herein had a significant impact on Resident 1's well being and was a major contributor to the suffering of Resident 1.
Due to the harm to Resident 1 herein found, the medication error, constituted a violation of 42 C.F.R.
Section 483.25(m)(2) and constituted a Class II deficiency. The medication error in this case caused actual harm by placing Resident 1 in predictable jeopardy. The medication error of a double dosage of the drug Vicodin, with the predicable and known side effect of "sleepiness," denied Resident 1 of her previous 11:30 p.m. condition, ability to be awakened and aroused and, thus, to maintain her highest practicable physical, mental, and psychosocial well being.
The following facts had an impact on the death of Resident 1: the staff's lack of or incomplete knowledge of the facility's policy (including staff's discretionary authority, if any) and, the procedures regarding implementation of advanced directives on a Resident who has been identified as “full measure” as opposed to NO DNR. Assuming, as argued in its Proposed Recommended Order, that Abbey's policy and procedures authorized staff to make the decisions and choices staff made
(whether to assess the resident, to take vital signs, to initiate CPR in circumstances created by the staff's own negligent conduct, and to report or not this information to Resident 1's physician), such unfettered discretion was not contained in Abbey's policy and procedures in effect at the time of this incident. Abbey is required to provide staff training with regard to those patients' rights to ensure compliance with Chapter 400, Florida Statutes. The fallacy of Abbey's argument, that its nursing staff made permissible, individual, independent but incorrect decisions and choices in violation of Abbey's policy and procedures regarding advance directives for "full- measure" residents, is the lack of a factual foundation.
Abbey's argument is rejected.
Based upon the relevant and material facts found herein above, AHCA proved by clear and convincing evidence that Respondent failed to implement the written policies and procedures regarding advanced directives addressing treatment of "full-measure" (NO DNR) residents, in violation of 42 C.F.R. Section 483.10(b)(8), as alleged in Tag F-156.
Based upon the relevant and material facts found herein above, AHCA proved by clear and convincing evidence that Respondent failed to implement written policies and procedures to prohibit neglect of residents in violation of 42 C.F.R. Section 483.13(c), as alleged in Tag F-224.
Based upon the relevant and material facts found herein above, AHCA proved by clear and convincing evidence that Respondent failed to provide or arrange services that meet professional standards of quality care in violation of 42 C.F.R. Section 483.20(k), as alleged in Tag F-281.
Based upon the relevant and material facts found herein above, AHCA proved by clear and convincing evidence that Respondent failed to ensure that residents are free of any significant medication errors in violation of 42 C.F.R.
Section 483.25(m), as alleged in Tag F-333.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Agency for Health Care Administration enter a final order:
Upholding the assignment of the Conditional licensure status for the period of October 8, 2002, through October 28, 2002, on Respondent's facility and imposing costs of $6,000 for costs associated with the six-month survey;
Finding that Respondent failed to implement written policies and procedures regarding advanced directives addressing treatment of "full-measure" residents, in violation of 42 C.F.R. Section 483.10(b)(8), as alleged in Tag F-156 and imposing an
administrative fine of $15,000 for non-compliance found in Count I of the Administrative Complaint;
Finding that Respondent failed to implement written policies and procedures to prohibit neglect of residents in violation of 42 C.F.R. Section 483.13(c), as alleged in Tag F- 224, and imposing an administrative fine of $10,000 for non- compliance found in Count II of the Administrative Complaint;
Finding that Respondent failed to provide or arrange services that meet professional standards of quality care in violation of 42 C.F.R. Section 483.20(k), as alleged in Tag F-
281 and imposing an administrative fine of $10,000 for non- compliance found in Count III of the Administrative Complaint; and
Finding that Respondent failed to provide or arrange services that meet professional standards of quality care in violation of 42 C.F.R. Section 483.20(k), as alleged in Tag F- 281, and imposing an administrative fine of $2,500 for non- compliance found in Count VI of the Administrative Complaint, for a total of $43,500.
DONE AND ENTERED this 25th day of February, 2004, in Tallahassee, Leon County, Florida.
S
FRED L. BUCKINE
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 25th day of February, 2004.
ENDNOTES
1/ A copy of this Recommended Order is being furnished to Gerald L. Pickett, Esquire, instead of Eileen O’Hara Garcia, Esquire. Mr. Pickett filed a Notice of Substitution of Counsel and Request for Service on January 21, 2004.
2/ All references to the Florida Statutes are to the 2000 version unless otherwise indicated.
3/ A complaint investigation is conducted when someone files a complaint against a facility with AHCA, as in this case.
4/ Exhibit R-6 is the Cardio Pulmonary Resuscitation (CPR) directive. Licensed nurses and any person in the facility capable of performing CPR has the basic responsibility for implementing this directive.
The purpose of the CPR directive is "to ventilate and establish circulation on a resident with absence of respirations and pulse."
The CPR directive lists five general guidelines sections regarding (1) resident rights, (2) assessment, (3) infection
control, (4) documentation, and (5) resident care plan documentation. The section titled General Resident Care Plan Documentation Guidelines is subdivided by (1) problem, (2) goal, and (3) information that may be documented in the resident's record. The information that may be documented in the resident's record is listed as: (1) resident's advance directives, (2) resident's wishes regarding CPR, and (3) the name and method of contacting the resident's surrogate decision- maker or the resident's representative.
Under the section titled Procedure, it is noted that "Specific procedures for CPR are revised frequently; verify procedure with the American Heart Association and/or the American Red Cross in your area," and that "This procedure is for one-rescuer CPR: adult." The procedure for one-rescuer CPR: adult contains the following detailed procedures regarding: (1) airway,
breathing, (3) circulation, (4) reassessment, and
continuation of CPR.
The CPR directive also lists the essential equipment/supplies and the possible related minimum data set triggers.
NOTE: The term "full-measure" resident is not included in this document.
5/ Exhibit R-9 is the Prescriber Medication Orders. The policy provides that: "Medications are administered only upon the clear, complete, and signed order of a person lawfully authorized to prescribe. Verbal orders are received only by licensed nurses or pharmacists and confirmed in writing by the prescriber within 48 hours."
The procedures are divided into five major sections:
Elements of the medication order.
Documentation of the medication order.
Specific procedures for the four types of medication orders are:
New Handwritten Orders signed by the prescriber.
New Verbal Orders.
Written Transfer Orders (sent with the resident by a hospital or other health care facility).
Renewed or recapitulated (recapped) orders (to continue a medication therapy beyond a previous order with limited duration, whether by prescriber or stop order policy.
Scheduling new medication orders on the Medication Administration Record.
Receipt of Orders from Physician Assistants and Nurse Practitioners.
Each section contains instructions on how to implement that section.
The pertinent part of this policy required documentation of the medication order in the resident's medical record with the date, time, and signature of the person receiving the order; recorded on the physician order sheet, transcribed to the MAR or treatment record.
When a new order changes the dosage of a previously prescribed medication, discontinue previous entry by writing "DC'd" and the date and highlighting the entry and enter the new order on the MAR.
The Physician Notification specifically requires the nurse to contact the physician at any time for a problem that in their judgment requires immediate medical attention.
Under "condition," vital signs (Adult) require immediate notification when there are specific changes, non-immediate notification when vital signs are routine, and normal-after several tests.
To determine whether to notify the physician, the nurse is required by policy to make the following assessments: (1) vital signs, (2) mental status, and (3) major diagnoses.
6/ Exhibit P-A is Abbey's Armband Color Code. The colors identify the following: Red heart-Skin Alert, Orange-Thicken Liquid, Blue-Skilled Charting, Green Leaf-Fall Alert, Yellow- DNR, and Bumble Bee-Bowel and Bladder. There is no color code identifying a "full-measure" resident.
Note: "full measure" residents are not given a color code and are not mentioned in this document.
7/ Exhibit R-7 is the Resuscitator (Manual, Portable) directive. Licensed nurses, nursing assistants experienced in use of the resuscitator, and respiratory therapist have the basic responsibility for implementing this directive. The general guidelines for assessment may include, but are not limited to: rate, rhythm, depth and quality of respirations; pain or discomfort; congestion; respiratory distress; change in level of consciousness; and dehydration and fluid balance. The Resuscitator directive provides instructions and directions regarding equipment and supplies, administration by tracheostomy and documentation guidelines.
COPIES FURNISHED:
Alfred W. Clark, Esquire
117 South Gadsden Street, Suite 201 Post Office Box 623
Tallahassee, Florida 32302-0623
Gerald L. Pickett, Esquire
Agency for Health Care Administration Sebring Building, Room 310J
525 Mirror Lake Drive, North St. Petersburg, Florida 33701
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 15, 2004 | Agency Final Order | |
| Feb. 25, 2004 | Recommended Order | Respondent guilty of four counts of staff negligence in the death of a 23-year-old patient. Recommended fine of $43,500. |
