STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANNE FRIED, R.N., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1878

) THE STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL AND OCCUPATIONAL ) REGULATIONS, BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings at 10 A.M., January 11, 1979, in the Alachua County Courthouse, Gainesville, Florida.

APPEARANCES

For Petitioner: Ms. Jeanne Fried, R.N.

Post Office Box 932 Alachua, Florida 32615

For Respondent: Julius Finegold, Esquire

1107 Blackstone Building

Jacksonville, Florida 32202 ISSUE

Whether or not the petitioner, Jeanne Fried, R.N., is entitled to certification as an Advanced Registered Nurse Practitioner by action of the Respondent, State of Florida, Department of Professional and Occupational Regulations, Board of Nursing.

FINDINGS OF FACT

1. This cause comes on for hearing based upon the petition of Jeanne Fried, R.N. filed with the State of Florida, Department of Professional and Occupational Regulations, Board of Nursing, Respondent. This petition was received by the Respondent on October 4, 1978 and referred to the State of Florida, Division of Administrative Hearings for consideration in accordance with the provisions of Section 120.57(1), Florida Statutes.

   
   

2. The Petitioner is a Registered Nurse licensed to practice in Florida. The Respondent is an Agency of the State Of Florida which has among its responsibilities the licensure, certification and regulation of certain individuals who wish to practice nursing in the State of Florida, to include the Petitioner.

3. In 1968, the Petitioner received a Baccalaureate degree from the Medical College of Georgia. Her degree was in nursing and she became a Registered Nurse at that time. Since 1968, the Petitioner has worked in the field of nursing. In addition, she has received a Masters of Education degree from the University of Florida with a minor in nursing. This latter degree was earned in December, 1975.

   
   

4. Subsequent to receiving the Masters of Education degree, Ms. Fried attended a course entitled Studies for Nurse Practitioners for Adult Care, and was awarded a certificate of completion in that course. That certificate was received in March, 1976 and a copy of the certificate may be found as the Petitioner's Exhibit Number One (1), admitted into evidence. After receiving that certificate, she worked in the capacity of an Advanced Registered Nurse Practitioner at the Lake Butler Reception and Medical Center, Lake Butler, Florida from April, 1976 through August, 1976. From August, 1976 to the present, the Petitioner has worked in a similar position in the Veterans Administration Hospital at Lake City, Florida.

   
   

5. Until July 17, 1977, the Respondent had not recognized nor established guidelines for the position known as Advanced Registered Nurse Practitioner. On that date, the Respondent enacted an item entitled Appendix to Chapter 210-11, Guidelines for Advanced Registered Nurse Practitioner Programs of Study. This item appears as a rule set forth in the Florida Administrative Code. The authority for the passage of the rule is found in Subsection 464.051(3), Florida Statutes and it implements Subsections 464.021(2)(a), 4 and 464.051(3)(d) and (e), Florida Statutes.

   
   

6. To receive the necessary certification to become an Advanced Registered Nurse Practitioner, an applicant must comply with the guidelines set forth in the aforementioned appendix. The only aspect of the guidelines which is in dispute between the parties is found in that section of the appendix entitled, "Curriculum" and specifically (3) which reads:

   
   

   The program shall be at least one (1) academic year in length (nine months full time) which shall include a minimum of one (1) academic quarter of theory in the biological, behavioral, nursing and medical sciences relevant to the area of advanced practice, in addition to

   clinical experience with a qualified preceptor . . .

   
   

7. The petitioner does not disagree with the fact that the course that she was certified in from the University of Florida in March, 1976 does not constitute an academic year within the meaning of the appendix; however, she is of the persuasion that she is entitled to certification as an Advanced Registered Nurse Practitioner because individuals who also attended the University of Florida course, Studies for Nurse Practitioner for Adult Care, have been certified by the Respondent as Advanced Registered Nurse Practitioners. (This certification for the other individuals has occurred notwithstanding their failure to complete a full academic year as prescribed in the guidelines for the Advanced Registered Nurse Practitioners found in the Appendix to Chapter 210-11, Florida Administrative Code.)

   
   

8. The basis for the certification of these other unnamed individuals transpired through an apparatus of the Respondent, in which, by meeting of its governing board, it was determined that individuals who did not meet the academic requirements of the Appendix to Chapter 210-11, Florida Administrative

   Code, nonetheless would be given an opportunity for certification as Advanced Registered Nurse Practitioners. This special dispensation on behalf of these unnamed parties was granted in the face of the clear requirements of the established rule, which is the Appendix to 210-11, Florida Administrative Code. By that, it is meant that the rule was passed effective July 17, 1977, but its application to these unnamed individuals who received certification as Advanced Registered Nurse Practitioners without complying to the terms and conditions of the rule, was withheld. The technique for withholding it was to extend the period of enforcement of the guidelines to become effective March 31, 1978 as opposed to the prescribed date of July 17, 1977. Any applicants who applied prior to that date would be considered on a basis which did not require strict compliance with the academic requirements of the "Curriculum" guideline, which could be and was waived in the instances of some of the applicants, to include applicants in a similar factual circumstance to the Petitioner in that they had attended the University of Florida, College of Nursing course, Studies for Nurse Practitioner for Adult Care.

   
   

9. The way prospective applicants were notified of the "grace period" allowing noncompliance with the academic requirement for certification in the subject field, was through the publication of that information in the newsletter of the Respondent which is forwarded to hospitals, public health clinics, colleges of nursing in Florida and the Florida Nurses Association. In addition, the Florida Nurses Association attempted to make its members aware of the "grace period." Also, it was the policy of the Respondent to advise the prospective applicants for certification as Advanced Registered Nurse Practitioners of the opportunity for consideration during the "grace period." This information sheet was typically mailed to the applicant with the application form, once an inquiry on the question of application had been received from the applicant.

   
   

10. The Petitioner did not receive notice of the "grace period" through any published newsletter or bulletin and did not receive a copy of the information sheet which would have apprised her of the fact of the "grace period."

    
    

11. She inquired about making application in February, 1978 and began to execute her application form on March 13, 1978 and completed the form on June 14, 1978. This can be seen by an examination of the Petitioner's Exhibit Number Five (5) admitted in evidence, which is a copy of the application for certification as Advanced Registered Nurse Practitioner filed by the Petitioner with the Respondent. Due to the fact that the application was received subsequent to March 31, 1978, and the fact that the Petitioner did not meet the academic requirements established in the Appendix of Chapter 210-11, Florida Administrative Code, her application to be an Advanced Registered Nurse Practitioner was denied through correspondence dated September 13, 1978.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

13. Based upon a full consideration of the facts, the Respondent was correct in denying the Petitioner's application for certification as Advanced Registered Nurse Practitioner. The denial was proper in view of the fact that the Petitioner has failed to meet the criterion on the subject of the necessary period of academic study established in the Appendix to Chapter 210-11, Florida Administrative Code. The Petitioner has not achieved one academic year of study as required. Although there has been disparity in the treatment of the

Petitioner and that of other individuals who received certificates as Advanced Registered Nurse Practitioners at a time subsequent to the implementation of the Appendix to Chapter 210-11, Florida Administrative Code, notwithstanding their failure to comply with the requirement of achieving one full academic year of study; although some of these individuals who received such certification had attended the course, Studies for Nurse Practitioners for Adult Care, at the University of Florida from which the Petitioner graduated in March, 1976, and although the Respondent certified those individuals by fiat and not by a duly promulgated rule, there is no justification for affording the Petitioner a similar quality of certification as an Advanced Registered Nurse Practitioner.

RECOMMENDATION

It is recommended that the application by the Petitioner, Jeanne Fried, R.N., be denied by the Respondent, State of Florida, Department of Professional and Occupational Regulations, Board of Nursing.

DONE and ENTERED this 30th day of January, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

Jacksonville, Florida 32202

Ms. Jeanne Fried, R.N. Post Office Box 932 Alachua, Florida 32615

Geraldine Johnson, R.N. Board of Nursing

6501 Arlington Expressway

Jacksonville, Florida 32211

Docket for Case No: 78-001878

Orders for Case No: 78-001878