Judges: WILLIAM R. CAVE
Agency: Department of Health
Latest Update: Mar. 24, 1986
Summary: Respondent was never regularly treated for mental disorder. Omitting isolated consultations for emotional stress does not rise to level of falsifying application.
85-1986.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, DOARD OF NURSING ) HOME ADMINISTRATORS, )
)
Petitioner, )
)
vs. ) Case No. 85-1986
)
VIRGINIA DOROTHY DEJONGE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a public hearing in the above-styled case on January 6, 1986 in West Palm Beach, Florida.
APPEARANCES
For Petitioner: William M. Furlow, Esq.
130 North Monroe Street Tallahassee, FL 32301
For Respondent: Lane K. Matthews, Esq.
533 Clematis Street
West Palm Beach, FL 33401
By an Administrative Complaint dated May 23, 1985, filed with the Division of Administrative Hearings on June 14, 1985, amended by order on October 14, 1985 on Petitioner's Motion to File Amended Administrative Complaint and amended at the hearing on Petitioner's Second Motion To Amend The Administrative Complaint without objection, Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent Virginia De Jonge as a nursing home administrator in the State of Florida.
As grounds therefor, it is alleged that: Respondent falsified her application for licensure as a nursing home administrator in violation of Section 468.1755(1)(b), Florida Statutes and Section 468.1755(1)(h), Florida Statutes by violating Section 468.1745(1)(d), Florida Statutes when she answered "No" to question 6-D on her application when, in fact, the answer should have been "Yes".
In support of the charges, Petitioner presented the testimony of Christie J. Dietert. Petitioner's exhibits 1-5 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Dr. Paul Williams Jahnig, a psychiatrist who testified as an expert, Mitchell Steklof, Dr.
Dale E. Fowler and Ronald Burton Hoover. Respondent's exhibits 1 and 2 were admitted into evidence.
The parties submitted posthearing Proposed Findings of Fact.
A ruling has been made on each proposed finding of fact as reflected in the Appendix to this Recommended Order.
FINDINGS OF FACT
On December 4, 1984, Respondent made application for licensure as a nursing home administrator in the State of Florida which was received by Petitioner on December 5, 1984.
As a result of Respondent's application for licensure as a nursing home administrator, Respondent was issued a nursing home administrator's license, number 0002241, and at all times pertinent to this proceeding Respondent was licensed as a nursing home administrator in the State of Florida.
On Respondent's application for licensure as a nursing home administrator dated December 4, 1984 and filed with Petitioner on December 5, 194, Respondent answered "No" to questions 6-D on the application which is as follows:
Have you ever received regular treatment for amnesia, or any form of insanity emotional disturbance, or mental disorder? (This question is not intended to apply to isolated instances of consultation for conditions of emotional stress.) If 8-C or 8-D* above are answered "Yes", please show on reverse side of this form or on additional sheets the relevant dates and circumstances of such treatment along with
*Apparently, reference to 8-C or 8-D was intended to be a reference to 6-C or 6-D.
the names and addresses of the medical practitioners who treated you.
In addition, it will be necessary for you to direct each of the practitioners or hospitals who treated you to furnish the Board any
information the Board may request with respect to any such treatment.
Respondent was hospitalized on three (3) occasions: (a) from July 6, 1979 to July 19, 1979 (b) from June 30, 1980 to September 1, 1980: and (c) from June 1, 1981 to June 11, 1981 at Lake Hospital, North Lake Worth, Florida which is the same as Lake Hospital of Palm Beaches (Lake Hospital).
Lake Hospital is considered a psychiatric hospital.
Although Doctors Joel Kestenbaun, Donato Roman and
Jesse J. Kaye were Respondents' attending physicians who prepared the summary of her stay at Lake Hospital on July 6-July 19, 1979, June 30-September 1; 1980 and June 1-June 11, 1981, respectively, the evidence is insufficient to prove that their specialty was in psychiatry.
Although Doctors Kestenbaum, Roman and Kaye each, in their respective summary of Respondent's stay at Lake Hospital (there was no testimony at the hearing from any of these doctors), diagnosed Respondent's mental condition on admission as depressive neurosis, the more credible evidence was the testimonyof Doctor Jahnig, a psychiatrist, who testified that in his opinion, considering only the information supplied by each of the attending physicians in their respective summaries, the diagnosis of depressive neurosis was incorrect. Doctor Jahnig further testified, again based solely on information furnished by each of the attending physicians in their respective summaries, that a psychiatric diagnosis could not be made on Respondent.
The more credible evidence shows that each time Respondent was admitted to Lake Hospital it was due to stress reacting to current situations: i.e., marital problems or financial problems or hers or her husband's recent surgery and not due to depressive neurosis.
During each of Respondent's stays in Lake Hospital, and at times in between stays, she maintained social and business interests.
Respondent did not see, or have knowledge of, the information contained in her records at Lake Hospital that indicated she suffered from depressive neurosis until after she was issued a nursing home administrator license by the Petitioner.
Respondent's testimony that neither her attending physician nor anyone else from Lake Hospital discussed with her
their diagnosis, is supported by Doctor Jahnig's testimony that he and most psychiatrists he knew did not discuss a diagnosis with a patient.
The more credible evidence shows that Respondent has not and does not now suffer from mental illness, insanity or amnesia.
Respondent's testimony that she has never perceived herself as having amnesia, any form of insanity, emotional disturbance or mental disorder and that the correct answer to question 6-D is still "No", was believable.
Respondent fully cooperated with Petitioner by making her records at Lake Hospital available and by signing an affidavit upon request of the investigator, without advice of counsel, that she had been hospitalized for depression after and during a divorce and after a serious operation.
Respondent signed the affidavit under oath at the end of the application wherein she acknowledged, among other things, that she had carefully read all the questions and answered them completely and agreed that if she furnished any false information it would constitute cause for denial, suspension or revocation of the license.
There was sufficient evidence to show that it was not Respondent's intent to withhold any information needed by the Petition in order to issue her a license as a nursing home administrator.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
18. Section 468.1755(1)(a)(b)(h) and (2)(a-f), Florida Statutes provides as follows
The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:
Violation of any provision of s. 468.1745 or S. 455.227(1).
Attempting to procure a license to practice nursing home administration by bribery, by fraudulent misrepresentations, or
through an error of the department or the board
* * * *
(h) A violation or repeated violations of this part, chapter 455, or any rules promulgated pursuant thereto.
* * * *
When the board finds any nursing home administrator guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
Denial of an application for licensure.
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or to work under the supervision of another licensee.
Restriction of the authorized scope of practice.
Section 468.1745(1)(d), Florida Statutes provides as follows:
(1) No person shall:
(d) Give false or forged evidence to the board or a member thereof for the purpose of obtaining a license.
Section 468.1755(1)(a), Florida Statutes specifically provides for disciplinary action for the violation of any provision of Section 468.1745, Florida Statutes but Petitioner has not alleged a violation of Section 468.1755(1)(a), Florida Statutes. Instead Petitioner has alleged a violation under the more general provision of Section 468.1755(h), Florida Statutes which encompasses a violation of Section 468.1745(b), Florida Statutes under the language "a violation...of this part" meaning, Part III - Nursing Home Administration of Chapter 468, Florida Statutes.
The weight of the evidence establishes that Respondent was treated on three (3) different occasions, approximately (1) year apart, for stress due to marital problems, financial
problems and medical (physical) problems suffered by Respondent and her husband but had not "received regular treatment for amnesia, or any form of insanity, emotional disturbance, or mental disorder."
But, assuming arguendo, that Respondent had received regular treatment for any one of those conditions enumerated in Question 6-D, the evidence is insufficient to prove that Respondent obtained her license as a nursing home administrator by means of "fraudulent misrepresentation" in violation of Section 468.1755(1)(b), Florida Statutes or by means of giving "false or forged evidence" in violation of Section 468.1745(d), Florida Statutes. The term "fraudulent misrepresentations" and "give false evidence" must be construed according to their usual and natural meaning.
It is noteworthy that each of these terms include an element of scienter or intent. The evidence establishes that Respondent was not aware of being diagnosed as having any one of those conditions enumerated in Question 6-D and, therefore, did not intentionally falsify her application and violate those sections of the statutes as alleged.
In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So 2d 349 (1 DCA Fla. 1977). License revocation proceedings are penal in nature. State ex. ref. Vining v. Florida Real Estate Commission, 281 So 2d 487 (Fla. 1973). As such, "the critical matter in issue must be shown by evidence which is indubitably 'substantial' as the consequences." Bowling v. Department of Insurance-394 So 2d 165,
172 (1 DCA Fla. 1981). Therefore, the evidence which is required to "substantially" support a license revocation must be greater than required to support conventional form of regulatory action. The Petitioner has failed to meet its burden of proof that Respondent violated Section 468.1755(1)(b), Florida Statutes and Section 468.1755(1)(h), Florida Statutes by violating Section 468.1745(1)(d), Florida Statutes when she answered "No" to Question 6-D on her application for licensure as a nursing home administrator which inquired as to whether or not Respondent had received regular treatment for amnesia, or any form of insanity, emotional disturbance, or mental disorder, excepting isolated instances of consultation for conditions of emotional stress.
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations as charged in the amended administrative
complaint and that the amended administrative complaint be DISMISSED.
Respectfully submitted and entered this 24th day of March, 1986, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1986.
COPIES FURNISHED:
William M. Furlow, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, FL 32301
Lane K. Matthews, Esq.
533 Clematis Street
West Palm Beach, FL 33401
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, FL
Salvatore A. Carpino General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, FL
Mildred Gardner Executive Director
Department of Professional Regulation
Board of Nursing Home Administrators
130 North Monroe Street Tallahassee, FL 32301
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in Finding of Fact No. 1.
Adopted in Finding of Fact No. 2.
Adopted in Finding of Fact 3 but corrected to reflect exact language.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact with clarification.
Adopted in Finding of Fact 14.
Adopted in Finding of Fact 15.
Rejected as Not supported by substantial competent evidence.
Rulings On Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact No. 1.
Adopted in Finding of Fact 11 with clarification.
Rejected as irrelevant licensure. Respondent was Not aware of this at time of application.,
Adopted in Finding of Fact 12.
Adopted in Findings of Fact 7, 8 and 9, except for the language "never suffered' which is rejected as Not supported by the record.
Adopted in Finding of Fact 8.
Not specifically adopted in Finding of Fact 8 testimony of business associate and friends considered in arriving at Finding of Fact 8.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 16.
Adopted in Finding of Fact 14.
Rejected as immaterial and irrelevant.
Rejected as legal arguments.
Docket for Case No: 85-001986
Orders for Case No: 85-001986
| Issue Date |
Document |
Summary |
|
Jun. 05, 1986 |
Agency Final Order
|
|
|
Mar. 24, 1986 |
Recommended Order
|
Respondent was never regularly treated for mental disorder. Omitting isolated consultations for emotional stress does not rise to level of falsifying application.
|
