STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY ELLEN STONE ZIRKLE, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2161

) FLORIDA STATE BOARD OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, before the undersigned Hearing Officer at West Palm Beach, Florida, on January 25, 1979.

APPEARANCES

For Petitioner: Peter S. Penrose, Esquire

3175 South Congress Avenue, Suite 103 Lake Worth, Florida 33461

For Respondent: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

ISSUE PRESENTED

Whether Petitioner should be issued a license as a Licensed Practical Nurse, pursuant to Chapter 464, Florida Statutes.

FINDINGS OF FACT

1. Petitioner Mary Ellen Stone Zirkle, Huntington, West Virginia, submitted an application for Licensed Practical Nurse by Endorsement to Respondent Florida State Board of Nursing, dated August 29, 1978. The application was denied by Respondent by letter of September 28, 1978, for the reason that Petitioner had not completed a program approved by the Board for the preparation of Licensed Practical Nurses and had not completed the 12th grade. Petitioner, through her counsel's letter of October 19, 1978, requested an administrative hearing. (Exhibit 1, Case File)

   
   

2. Petitioner attended high school in West Virginia for three years from 1940 to 1943. In November, 1958, she received a certificate from the Huntington East High Trades School, Huntington, West Virginia, certifying that she had completed the requirement in practical nursing prescribed in the adult trade extension program sponsored by the Practical Nurses of West Virginia, Inc., District No. II, and the National Association for Practical Nurse Education.

   The course in practical nursing consisted of 285 hours of classroom work which

   involved class attendance for two nights a week for approximately one and one- half years. Although the school was not accredited by the West Virginia State Board of Examiners for Practical Nurses until 1961, West Virginia permitted individuals who had engaged in practical nursing for a period of three years to be issued a license as a practical nurse by waiver. It further authorized such individuals who had completed extension courses equal in theory to those for the graduate practical nurses to thereafter take the examination prescribed by the Board and obtain a license without the designation of "waiver" thereon. In this manner, Petitioner obtained her West Virginia license by waiver on November 6, 1958 and, in 1959, she passed the State Board examination. During the time Petitioner attended the extension course at Huntington East High Trades School, she was simultaneously employed at Cabell Huntington Hospital performing the duties of a practical nurse. During the period March - September, 1960, she attended a "post graduate educational program" at the hospital in operating room technique and was awarded a certificate of graduation. She thereafter was employed as a licensed practical nurse at Doctor's Memorial Hospital, Huntington, West Virginia, from 1962 until 1976. Her duties included working in all areas of surgery as well as general central service type functions in the general nursing units. In 1974, she satisfactorily completed a required course of studies in operating room technician refresher program which consisted of 80 hours of classroom work. She was also certified as an Operating Room Technician in 1974. (Exhibits 2-6, 7-8)

   
   

3. Petitioner submitted letters from the various physicians familiar with her performance of duty at Doctor's Memorial Hospital who "found her to be reliable and efficient in the Operating Room and seemingly quite knowledgeable as a Staff Nurse in the general nursing departments." Her former supervisor at Doctor's Memorial Hospital also submitted a letter in which she commented favorably on Petitioner's efficiency and reliability. The letter stated in part as follows:

   
   

   When assigned to other areas, she worked with as much efficiency as she did in the Operating Room. It was very evident she had been trained well to function as a

   L.P.N. Her knowledge of nursing procedures and medications was quite adequate even with long periods of absence from general duty. (Exhibit 7)

   
   

4. In determining qualifications for licensure by endorsement, Respondent considers that an applicant's graduation from an "approved school of practical nursing" in another state is acceptable as meeting Florida's requirements and does not inquire into the number of hours of instruction required for such graduation. Its inquiry into Petitioner's qualifications in this respect was caused by the fact that the West Virginia State Board of Examiners for Practical Nurses indicated on Respondent's application form that Petitioner's education had been an extension course. It is a policy of Respondent that the equivalent of a four year high school education is completion of the General Education Development Test (GED). Petitioner has not taken such a test. (Testimony of Johnson, Zirkle)

   
   

   CONCLUSIONS OF LAW

   
   

5. The statutory qualifications for Licensed Practical Nurses are contained in Section 464.111, Florida Statutes, and require pertinently that the applicant:

   1. Has completed at least an approved 4-year high school course of study, or the equivalent thereof as determined by

      the board, and meets such other preliminary qualifications as the board may prescribe.

      * * *

      (3) Has completed a program approved by the board for the preparation of licensed practical nurses.

      
      

      The above statutory provisions are amplified by Respondent in its Rule 210- 8.01(1) and (4), Florida Administrative Code. Paragraph (1) thereof provides that the "other preliminary qualifications" which may be prescribed by the Board are "such as successful completion of the General Education Development test; graduation from a college or successful completion of appropriate college courses. Although the rule does not clearly state that the possible preliminary qualifications are to be examples of the "equivalent" of a four year high school course of study, it is apparent from the language employed in Paragraph (6) of Rule 210-8.01 and from the testimony of Respondent's Coordinator of Investigation and Licensing that such is the policy of Respondent Board of Nursing. It is noted, however, that the rule does not specify that the stated equivalents of a high school education are exclusive, but by the use of the preliminary phrase "such as indicates that they are merely examples.

      Petitioner's courses of study as described in the foregoing Findings of Fact are considered more than sufficient to represent the equivalent of the one year of high school that she lacks.

      
      

6. Although Section 464.111(3) refers merely to completion of a "program approved by the Board for the preparation of Licensed Practical Nurses, paragraph (4) of Rule 210-8.01 clarifies the statutory provision by describing this requirement as an "educational program." Respondent points to its regulations for the accreditation of state nursing programs to determine if Petitioner's educational qualifications meet Florida's standards. Rule 210-7.07 lists the specific requirements for practical nursing programs to prepare a practical nurse so that she is capable of functioning effectively in the following capacities:

   
   

   1. Ability to render nursing care with minimum supervision to patients of all

      ages whose clinical conditions are relatively stable and whose daily living needs can be safely met without the possession of a substantial body of scientific knowledge.

   2. Ability to assist the registered nurse, [or] licensed physician . . . by performing delegated tasks.

      
      

      In order to achieve those goals, the Rule prescribes that the content of the Practical Nursing Program must include specified subjects and clinical experiences with patients in all age groups. It further requires a total of 1300 hours of instruction of classroom theory and clinical experience, of which at least 50 percent of the total time is allotted to clinical experience. The evidence shows that Petitioner's basic nursing education consisted of only 285 classroom hours of instruction rather than the 650 hours contemplated under the present Florida program. However, during subsequent years, she completed a six- month program in Operating Room Technique and took an additional 80-hour

      refresher course in that specialty. The total of her nursing education therefore closely approximates that presently required under the Florida program. Although she admittedly specialized in Surgical Nursing, the evidence shows that she spent many years of general duty nursing under the supervision of registered nurses and physicians.

      
      

7. Neither the pertinent Florida Statute nor implementing regulation states that an out-of-state applicant must have completed a program identical to that spelled out in Rule 210-7.07. It is highly unlikely, indeed, that all of the other states require the same number of instructional hours in the same subjects as required under the Florida program. In fact, Respondent's representative testified that the educational qualifications of a practical nurse licensed in another state are routinely considered acceptable without inquiring into the specifics of her educational background. In any event, it is considered that Petitioner, by her education and long experience, has shown that she is fully capable of rendering proper nursing care and to assist registered nurses and physicians by performing delegated tasks. The laudatory comments of her former supervisor and physicians support this conclusion.

   
   

8. Section 464.121(2), F.S., provides that Respondent may issue a license to practice as a Licensed Practical Nurse without examination to any applicant who has been duly licensed under the laws of another jurisdiction if "in the opinion of the board, the applicant meets the requirements for a licensed practical nurse in this state." The determination of equivalent qualifications therefore is a matter within the discretion of Respondent. In view of Petitioner's demonstrated commendable performance as a Licensed Practical Nurse in West Virginia for a period of approximately 20 years, it is considered that such discretion should be exercised liberally with respect to Petitioner.

RECOMMENDATION

That Petitioner's application for license to practice practical nursing without examination pursuant to Section 464.121 (2), F.S., be approved.

DONE and ENTERED this 21st day of February, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

Peter S. Penrose, Esquire 3175 South Congress Avenue Suite 103

Lake Worth, Florida 33461

Geraldine Johnson, R.N. Licensing and Investigation

Coordinator

State Board of Nursing

6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211

Docket for Case No: 78-002161

Orders for Case No: 78-002161