STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENISE Y. CHABRIER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1412

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, formal hearing in this cause was held in Tallahassee, Florida, on September 21, 1987, before Ella Jane P. Davis, the duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory F. Esposito, Esquire

5440 North State Road 7, Suite 23 Fort Lauderdale, Florida 33319

For Respondent: Allen R. Grossman, Esquire

Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050 BACKGROUND AND PROCEDURE

Petitioner Denise Y. Chabrier, applied for certification as a Respiratory Therapy Technician through endorsement in the State of Florida pursuant to Section 468.353, Florida Statutes, and Rules 21M-33 through 21M-38, Florida Administrative Code. Petitioner's application was granted by the Advisory Council on Respiratory Care (hereinafter "Council"). However, the Council imposed a probationary period upon the license. Petitioner filed a Request for Hearing dated February 9, 1987, specifically requesting a Formal Hearing and subsequently filed a letter dated March 5, 1987, amending the Request for Hearing. The matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

At final hearing, Petitioner presented two witnesses: Denise Y. Chabrier and Suzanne Laney. Petitioner's certified application file and a certified copy of the transcript of Petitioner's appearance before the Council on November 18, 1986 were entered into evidence as Joint Exhibits 1 and 2, respectively.

Petitioner's Exhibit 1 was not admitted. Respondent did not offer any further witnesses or exhibits.

The parties agreed to file proposed recommended orders 20 days subsequent to the filing of the transcript of the final hearing.

Respondent filed the transcript and timely filed its post-hearing proposals. Respondent's proposed findings of fact are ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Petitioner's post- hearing proposals were filed 19 days late and were struck by order entered in response to Respondent's motion.

FINDINGS OF FACT

1. At the commencement of formal hearing, Respondent moved ore tenus to dismiss upon grounds that no disputed issues of material fact existed. Upon representations of Petitioner's counsel that there remained issues of whether or not there had been selective application of the rules to Petitioner (TR 6-7 and 19), of whether or not the license restrictions imposed upon Petitioner duplicated education already completed by the Petitioner at Jackson Memorial Hospital, and a representation that the evidence to be adduced at formal hearing would include educational events up to the date of the de novo formal proceeding sufficient to entitle Petitioner to certification without any probationary period or restrictions (TR 10-12, 16 and 18), ruling was reserved on the motion to dismiss until the completion of Petitioner's case-in-chief.

   
   

2. At the conclusion of Petitioner's case-in-chief, Respondent again renewed its motion to dismiss. The motion was denied without prejudice, pending review of the full application file and other documentary evidence admitted in Petitioner's case-in-chief. Respondent has raised the motion yet again in its post-hearing proposals and it is ruled upon in the following conclusions of law.

   
   

3. By its January 21, 1987 Order, the Board of Medicine, Advisory Council for Respiratory Care granted Petitioner a license as a respiratory care practitioner subject to the following restrictions:

   
   

   ...the license shall be issued subject to probation upon the conditions:

   
   

   1. Applicant is not to work in any critical care area, including the emergency room, and,

   2. Applicant will not do ventilator care in the home.

      
      

      This probation shall be in force until Applicant has successfully completed an advanced care registry eligibility program with adequate supervision. Said program may be approved by the Chair of the Council.

      
      

4. It is stipulated that Petitioner meets standard requirements for licensure. It is disputed as to whether she is entitled to an unlimited/unrestricted license absent the probationary educational requirements.

   
   

5. Petitioner received several written and oral warnings relating to incidents of improper patient care while employed at Mount Sinai Medical Center, Miami, Florida, from 1979 to 1982 and prior to making application for her license in 1986.

6. One significant incident involved Petitioner's supervising a student using a sidearm nebulizer and treatment in the Mount Sinai surgical intensive care unit. Petitioner failed to verify information given to her by the student in that she did not personally view the patient and left the room while the treatment was still in the patient. Another significant incident involved Petitioner leaving another sidearm nebulizer in line with a ventilator circuit on a patient. Petitioner admitted her error with regard to these incidents and admitted their inherent danger to patients.

   
   

7. The Petitioner was terminated from employment at the Mount Sinai Medical Center on July 21, 1982, for negligence in performance of her duties.

   
   

8. Petitioner began work at Jackson Memorial Hospital, Miami, on August 9, 1982. She has maintained continuous employment with Jackson Memorial Hospital up to the date of formal hearing. Until the January 21, 1987 Council Order, Petitioner also worked critical care areas of Jackson Memorial Hospital and did home ventilator therapy for a private company called "Allied." Since January 21, 1987, she has limited her work as required by the licensing order, and since its entry she has performed only duties involving floor care and treatments in the units.

   
   

9. Petitioner testified at formal hearing that she successfully completed Respiratory Therapy Theory I and II at Miami Dade Community College subsequent to leaving Mount Sinai, as well as numerous other introductory education courses (TR 35- 36). This testimony is in part contrary to her testimony before the Advisory Council on November 18, 1986. By that prior testimony, she admitted she had not received any clinical course experience of any kind and did not do any ventilating at Jackson Memorial Hospital subsequent to her dismissal from Mount Sinai Medical Center and prior to the Council hearing on November 18, 1986. (Jt. Ex. 2 pp. 59-62) With one exception, all of Petitioner's formal training and clinical training as a respiratory technician for which documentation exists, shows that her training occurred prior to her firing from Mount Sinai in 1982. The one exception is a certificate dated March 16, 1985, showing that Petitioner was found to have fulfilled the educational requirements of the National Board of Respiratory Care, but there is no showing in the record of what these requirements might be or of when they were fulfilled. (Jt. Ex. 1)

   
   

10. Petitioner admitted at formal hearing that she has completed no specific course of study and has not completed any advanced care registry eligibility program. The individual subjects she has claimed to have completed since her Mount Sinai experience do not appear to be either clinical or to offer hands- on experience.

    
    

11. On periodic Jackson Memorial Hospital Employee Evaluations, Petitioner has received "low" ratings in the categories of "work habits" for the period 8/14/83 to 8/12/84; for "quantity of work" and "personal relations" for the period 8/15/84 to 8/11/85; and again for "work habits" for the period 8/11/85 to 8/10/86. She has "Satisfactory" or "High" ratings in other categories during each of these periods.

    
    

12. No proof of arbitrary, capricious, or selective imposition of educational or probationary requirements was demonstrated.

    
    

    CONCLUSIONS OF LAW

    
    

13. Without the existence of disputed issues of material fact, the Division of Administrative Hearings would be without jurisdiction of this cause,

    however, Petitioner attempted to introduce certain disputed issues. Under these circumstances, the Division of Administrative Hearings has jurisdiction and the motion to dismiss was and is properly denied.

    
    

14. In a licensure proceeding, the burden of proof is upon the applicant to establish entitlement. See, Rule 28-6.08, Florida Administrative Code, and Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In the instant case, the burden is upon Petitioner to demonstrate that she is entitled to an unrestricted license. Petitioner has failed to meet that burden.

    
    

15. Section 468.353(3), Florida Statutes, permits the Board of Medicine to delegate to the Respiratory Care Council authority to certify applicants for certification as respiratory therapy technicians. The Board of Medicine has so- delegated that authority through Rule 21M-33.003, and Rule 21M-35, Florida Administrative Code.

    
    

16. Section 468.355(2), Florida Statutes, provides for, among other things, the imposition of probation upon any person who has violated a provision of Section 468.365(1), Florida Statutes.

    
    

17. During her employment prior to applying for certification, Petitioner failed to deliver respiratory care services with that level of care, skill, and treatment which is recognized by a reasonably prudent respiratory therapy technician or respiratory therapist with similar professional training as being acceptable under similar conditions and circumstances. This past track record justifies the imposition of probationary and educational terms upon her license.

    
    

18. No educational or clinical training subsequent to these instances of negligence have been demonstrated.

    
    

19. There has been no demonstration that the probationary and educational terms imposed by the Council are arbitrary, capricious, unreasonable or selectively applied.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Board of Medicine enter a Final Order affirming its

January 21, 1987 Order.

DONE and RECOMMENDED this 17th day of December, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1412

The Petitioner's proposals were struck. Rulings upon the Respondent's proposed findings of fact (PFOF) are hereafter ruled upon pursuant to section 120.59(2), Florida Statutes:

Respondent's PFOF:

1. Rejected as subordinate and unnecessary and as covered in FOF 1 and 2 and the Conclusions of Law.

2-3. Covered in FOF 3.

1. Covered in FOF 5.

2. Covered in FOF 7.

6-7. Modified in FOF 9-10 to conform to the greater weight of the evidence as a whole and to exclude irrelevant material.

8. Covered in FOF 11.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Gregory F. Esposito, Esquire 5440 North State Road 7

Suite 23

Fort Lauderdale, Florida 33319

Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601

Tallahassee, Florida 32399-1050

William O'Neil, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-001412

Orders for Case No: 87-001412