STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5183

)

BEVERLY BURKE, T. T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 7, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Herbert B. Dell, P.A.

4801 South University Drive Fort Lauderdale, Florida 33328

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

On July 26, 1994, Petitioner Agency for Health Care Administration issued an Administrative Complaint alleging that Respondent had violated the statutes regulating her conduct as a licensed respiratory care practitioner, and Respondent timely requested a formal hearing regarding those allegations.

Thereafter, this cause was transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner presented the testimony of Steven K. Bryant by way of deposition, which was admitted in evidence as Petitioner's Exhibit numbered 3. Petitioner's Exhibits numbered 1 and 2 were also admitted in evidence.

Respondent Beverly Burke testified on her own behalf and presented the testimony of Linda J. Reed.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida.

   
   

2. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states.

   
   

3. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992.

   Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey.

   
   

4. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date.

   
   

5. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992.

   
   

6. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case.

   
   

7. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes.

8. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey.

   
   

9. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination.

   
   

10. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated.

    
    

11. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application.

    
    

12. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete.

    
    

13. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate.

    
    

14. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients.

    
    

15. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

17. The two-count Administrative Complaint filed in this cause alleges that Respondent has violated Section 468.365(1)(a) and (b), Florida Statutes, which authorizes the Board of Medicine to take disciplinary action against a licensee who is found guilty of the following:

    
    

    1. Procuring, attempting to procure, or renewing a certificate or registration . . . by fraudulent misrepresentation, or through an error of the department or the board.

    2. Having certification, registration, or other authority, by whatever name known,

       to deliver respiratory care services revoked, suspended, or otherwise acted against, including the denial of certification, registration, or other authority to deliver respiratory care services by the licensing

       authority of another state, territory, or country.

       
       

       Petitioner has proven its allegations by clear and convincing evidence.

       
       

18. Respondent obtained her Florida license by representing that she possesses a CRTT certification from the NBRC. At the time that she made that representation under oath, she knew that the NBRC had invalidated her CRTT examination results and her CRTT certification. Further, she denied in her answer to question numbered 5 of the application for licensure that she had been notified to appear before any licensing authority. Although Petitioner presented no evidence as to the procedural steps in New Jersey prior to New Jersey's issuance of an administrative complaint, Respondent testified that she was questioned by the New Jersey investigator and knew disciplinary proceedings were being initiated in September or October 1992, prior to her Florida application for licensure. Accordingly, Respondent made intentional misrepresentations in her Florida licensure application in order to receive her Florida license, in violation of Section 468.365 (1)(a).

    
    

19. Similarly, Respondent has violated Section 468.365(1)(b) by having her license to practice respiratory care revoked by the State of New Jersey.

    
    

20. Section 468.365(4), Florida Statutes, authorizes the Board of Medicine to establish guidelines for the disposition of disciplinary cases involving violations. Rule 59R-74.001, Florida Administrative Code, establishes those guidelines and sets forth the mitigating and aggravating factors to be considered. In mitigation, Respondent denies that she cheated on the CRTT exam and presented evidence that her supervisor thinks she is competent. However, Respondent is not charged herein with cheating on the CRTT exam; that is a matter within the NBRC's determination. Further, whether her supervisor believes Respondent is skilled is irrelevant. Rather, whether Respondent has demonstrated that she meets minimum competency requirements by successfully completing the CRTT entry-level examination and obtaining a CRTT certificate is the relevant question, and she has not.

21. Respondent has admittedly had her license to practice in New Jersey revoked because her CRTT examination results and certification have been invalidated. Further, Respondent has obtained her current Florida license by fraudulent misrepresentations. This is the second time Respondent has obtained a Florida license by such means. Further, the NBRC will not permit Respondent to retake the examination, thereby demonstrating her competency, because she refuses to return her invalidated certificate to the NBRC. It appears that Respondent views requirements of regulatory bodies and credentialing agencies with disdain. Further, Respondent has shown no remorse for her conduct; rather, she suggests in her testimony that she is simply entitled to a CRTT certificate and to Florida licensure.

    
    

22. In her proposed recommended order, Respondent argues that the State of Florida should make arrangements with the NBRC to allow her to retake the CRTT examination sometime within the next year while continuing to allow Respondent to provide respiratory care services in Florida. Interestingly, Respondent does not offer to return her invalidated CRTT certificate to the NBRC, does not explain why the State of Florida should allow her to practice before she has demonstrated that she is competent to do so by meeting minimum requirements, and does not offer any assurance as to why the Board of Medicine should believe that Respondent would retake the CRTT examination if Florida made the arrangements since Respondent failed to show up for the examination when the State of New Jersey offered her that same opportunity.

    
    

23. In February 1990 Respondent's non-critical care license was revoked by the Board of Medicine since she had obtained it by the use of fraud. In February 1993 she applied for her current license and obtained it in July by the use of fraud, only three years later. Respondent's offense is severe. So should be the penalty for her offense. The danger to the public from any penalty less than revocation is great since Respondent has not demonstrated that she is competent but she has demonstrated that she is willing to provide false information in professional situations when to do so is to her own advantage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Administrative Complaint filed against her and

revoking her respiratory care practitioner license number TT 0006767.

DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 30th day of January, 1996.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183

1. Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

3. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order.

4. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her.

5. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein.

6. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein.

7. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause.

COPIES FURNISHED:

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Hugh R. Brown, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Herbert B. Dell, P.A.

4801 South University Drive Fort Lauderdale, Florida 33328

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 to 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: 94-005183

Orders for Case No: 94-005183