STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2670

)

LORRIE NEUMANN DUPUIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by it duly designated Hearing Officer, Donald R. Alexander, on August 8, 1991, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Lorrie Neumann Dupuis, pro se

4156 Piney Branch Court Jacksonville, Florida 32257

STATEMENT OF THE ISSUES

The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on February 15, 1991, when petitioner, Department of Professional Regulation, Board of Nursing (Board), issued a three-count administrative complaint charging that respondent, Lorrie Neumann Dupuis, a licensed practical nurse, had violated Subsections 464.018(1)(f),(h), and (l), Florida Statutes (1989) by engaging in unprofessional conduct, knowingly violating a provision of Chapter 464, and making or filing a report which she knew was false. Respondent disputed the above allegations and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on April 30, 1991, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing issued on May 15, 1991, the matter was scheduled for final hearing on August 8, 1991, in Jacksonville, Florida. On August 5, 1991, the case was transferred from Hearing Officer Robert T. Benton, II to the undersigned.

At final hearing, petitioner presented the testimony of Lou Anne Hawkins, Trish Lamberson, and Jacqueline L. Cumbie. Also, petitioner offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent testified on her own behalf. At the beginning of the hearing, respondent admitted the allegations in Count I. Since those allegations form the basis for the alleged statutory violation in Count II, only the charges in Count III are in dispute.

A transcript of hearing was filed on September 13, 1991. Proposed findings of fact and conclusions of law were due on or before September 23, 1991. None were filed.

FINDINGS OF FACT

Based upon the entire record, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Lorrie Neumann Dupuis (Dupuis or respondent), was licensed as a practical nurse and held license number PN 0766491 issued by petitioner, Department of Professional Regulation, Board of Nursing (Board). When the events herein occurred in 1990, respondent was known as Lorrie Neumann. She has since changed her name to Lorrie Neumann Dupuis.

      
      

2. Counts I and II

   
   

   1. At hearing respondent admitted that the charges in Counts I and II are true. The admitted allegations which underpin these counts are briefly as follows. On July 23, 1990, respondent applied for employment with Upjohn Health Services (Upjohn). On her application, Dupuis indicated that she was a registered nurse when in fact she was a licensed practical nurse. In addition, respondent submitted to Upjohn an altered nursing license which had been changed to indicate the designation "RN" and title "Registered Professional Nurse". Finally, respondent gave Upjohn a resume indicating the designation "RN" after her name. Accordingly, it is found that respondent (a) engaged in unprofessional conduct by improperly using the name or title Registered Nurse and (b) knowingly violated a statutory provision that prohibits any person from assuming the title of registered nurse or using the abbreviation "R.N." without being so licensed. There is no evidence, and the Board has not alleged, that any unlawful practice as a registered nurse occurred as the result of the application nor that respondent was subjected to criminal prosecution for this act.

      
      

3. Count III

   
   

   1. Respondent is charged in Count III with "making or filing a false report or record which the licensee knows to be false". This charge stems from a factual allegation that, while employed by Consolidated Staffing Services (CSS), respondent altered a time verification form by increasing the number of hours she had allegedly worked on July 26, 1990, from four to nine.

      
      

   2. Respondent was employed as a licensed practical nurse (LPN) by CSS from April through July 1990. CSS, which is a for-profit division of St. Vincent's Hospital in Jacksonville, has agreements with various clients in the Jacksonville area to supply nurses to the clients on a supplemental staff basis. One such agreement was with the Jacksonville Naval Air Station (NAS) and called

      for CSS to furnish nurses to the NAS emergency room. During her tenure with CSS, respondent worked on various occasions as a LPN at the NAS emergency room.

      
      

   3. On Tuesday, July 24, 1990, Dupuis worked an eight hour shift at the NAS. Based on erroneous advice received from a CSS employee, respondent was under the impression she was to work again at the NAS on Thursday morning, July

   1. She accordingly reported to duty that day at 6:45 a.m. However, Dupuis was not actually scheduled to work that day since the emergency room already had a full complement of nurses on duty.

      
      

      1. After realizing that the emergency room had more persons on duty than was customary, the emergency room nursing manager contacted CSS and verified that respondent was not scheduled to work that day. Accordingly, around 10:45 a.m., the manager advised respondent that she must leave but that she would be paid for the four hours she had worked that morning.

         
         

      2. Just before leaving the premises, respondent filled out a CSS time verification form. The form is made up of four pages, an original and three copies, and the CSS nurse is instructed to leave one copy with the client, retain one copy for herself, and to return the original and one copy to CSS offices. On the form, respondent noted she had worked from 6:45 a.m. to 10:45 a.m., or a total of four hours.

         
         

      3. After she departed the NAS, respondent noted that the time sheet reflected a date of July 25 when in fact the correct date was July 26. She accordingly altered the three copies of the form still in her possession to reflect the correct date. The copy left with the NAS still carries the incorrect date of July 25.

         
         

      4. In accordance with her normal procedure, respondent accumulated her time verification forms from the week and turned them all in at one time to CSS on Sunday afternoon, July 29. She did so by placing them in an envelope and sliding the envelope under the locked doors of CSS's offices. Such a procedure was acceptable with her employer.

         
         

      5. When the envelope was opened by CSS the next day and sent to accounting for computation of pay, CSS personnel noted that on respondent's July

         26 time verification form the number "4" had been altered to read "9" so that it appeared respondent had worked nine hours at the NAS. Also, the "time finished" column, which is the time Dupuis finished her stint of duty, reflected that "10:45" had been altered to read "15:45", which is the military time for 3:45

         p.m. CSS then had the NAS fax its copy of the form to CSS. This form had not been altered and correctly reflected that Dupuis worked only four hours. When Dupuis would not agree to meet with CSS management to discuss the altered form, respondent was terminated from employment and the matter was turned over to the Board.

         
         

      6. Except for changing the date on the form from July 25 to July 26, respondent denied that she had altered any other numbers. She suggested at hearing that someone at CSS may have altered the copies after she turned them in on Sunday, July 29. She also suggested that the nurse manager at the NAS emergency room disliked her and may have set her up. However, these contentions are not deemed to be credible. Accordingly, it is found that respondent made a report which she knew to be false.

4. Mitigation

1. There is no evidence that respondent has ever been disciplined by the Board. In addition, there is no evidence that her actions endangered the public or resulted in actual damages of any nature, or that she engaged in any other similar misconduct. Finally, there are no complaints of record regarding the quality of work performed by respondent as a LPN.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

3. Because respondent's professional license is at risk, petitioner is obligated to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

4. Respondent is charged with violating Subsections 464.018(1)(f),(h), and (l), Florida Statutes (1989). Those subsections authorize the Board to take disciplinary action against a licensee whenever the licensee is found guilty of

   
   

   (f) Making or filing a false report or record, which the licensee knows to be false, inten- tionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capa- city as a licensed nurse.

   * * *

   (h) Unprofessional conduct, which shall in- clude, but not be limited to, any departure from, or the failure to conform to, the min- imal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

   * * *

   (l) Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

   * * *

   
   

5. By clear and convincing evidence, the Board has established that respondent engaged in the illicit conduct described in the complaint and thus violated the foregoing statutes. Therefore, the charges in Counts I, II and III have been sustained.

   
   

6. Rule 210-10.011, Florida Administrative Code (1989) provides suggested penalties to be imposed on licensees found guilty of violating relevant agency rules or statutory provisions. For knowingly making or filing a false report, subsection (2)(h) of the rule calls for a penalty ranging from a reprimand and fine of $250 to revocation and a $1000 fine. For unprofessional conduct,

subsection (2)(j) calls for a penalty ranging from a reprimand to suspension, probation and fine. In addition, rule 21O-10.012 characterizes the "use of a nursing title under Section 464.015, F.S., provided no practice issue was involved or no criminal prosecution resulted" as a minor violation. Finally, section (3) of rule 21O-10.011 recites circumstances which may be considered in aggravation or mitigation of penalty. As is relevant here, respondent has had no prior disciplinary action taken against her license, there was no danger to the public, no actual damage occurred, and the alterations occurred during the same week and at no other time. It should also be noted there were no complaints regarding the quality of her work. In view of this, a thirty-day suspension of her license is appropriate.

RECOMMENDATION

Based upon the foregoing findings of facts and conclusions of law, it is recommended that respondent be found guilty of violating Subsections 464.018(1)(f),(h), and (l), Florida Statutes (1989), and that her nursing license be suspended for thirty days.

RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1991.

COPIES FURNISHED:

Tracey S. Hartman, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Lorrie Neumann Dupuis 4156 Piney Branch Court Jacksonville, FL 32257

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Judie Ritter, Executive Director Board of Nursing

504 Daniel Building

111 East Coastline Drive Jacksonville, FL 32202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002670

Orders for Case No: 91-002670