STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF NURSING, )
)
Petitioner, )
)
vs. ) CASE NO. 95-3887
)
MAVERLYN A. JOHNSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on November 7, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Natalie Duguid, Esquire
Agency for Health Care Administration 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Maverlyn A. Johnson, pro se
18911 Northwest 7th Court Miami, Florida 33169
STATEMENT OF THE ISSUES
Whether Respondent violated Section 464.018(1)(h), Florida Statutes, as alleged in the Administrative Complaint?
If so, what disciplinary action should be taken against her?
PRELIMINARY STATEMENT
On May 30, 1995, the Agency for Health Care Administration (hereinafter referred to as the "Agency") issued an Administrative Complaint against Respondent, a Florida-licensed practical nurse, alleging that she violated Section 464.018(1)(h), Florida Statutes, by engaging in "unprofessional conduct" while attempting to dress an "extremely belligerent" patient under her care at the Aventura Hospital and Medical Center (formerly known as Humana Hospital- Biscayne) on or about January 17, 1994. In the Administrative Complaint, the Agency indicated that it was requesting that "the Board of Nursing enter an Order imposing one or more of the following penalties: Revocation or suspension of Respondent's license, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate."
Respondent denied the allegations of wrongdoing made against her in the Administrative Complaint and requested a formal hearing. On August 3, 1995, the Agency referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.
The hearing was held on November 7, 1995. At the hearing, the Agency presented the testimony of four witnesses, all of whom were employees of the Aventura Hospital and Medical Center on or about January 17, 1994: Todd Sussman; Barry Butler; Denise Picerno; and Monica Scaccianoce. 1/ In addition to the testimony of these four witnesses, the Agency offered, and the Hearing Officer received, five exhibits (Petitioner's Exhibits 1 through 5) into evidence. Respondent testified on her own behalf and offered four exhibits (Respondent's Exhibits 1 through 4) into evidence. All of Respondent's exhibits were received by the Hearing Officer. She presented no other evidence.
The original deadline for the filing of proposed recommended orders was December 7, 1995. On December 1, 1995, the Agency filed a motion requesting an extension of the deadline. By order issued December 5, 1995, the motion was granted and the deadline was extended to December 14, 1995.
The Agency and Respondent filed their proposed recommended orders on December 12, 1995, and December 15, 1995, respectively. These post-hearing submittals have been carefully considered by the Hearing Officer. They each contain, what have been labelled as, "proposed findings of fact." These "proposed findings of fact" are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Agency is a state government licensing and regulatory agency.
Respondent is now, and has been since June 18, 1993, licensed as a practical nurse in the State of Florida. Her license number is PN 1113121.
Respondent trained to be a practical nurse at the Sheridan Vocational School (hereinafter referred to as "Sheridan") in Hollywood, Florida. She graduated from Sheridan in January of 1993, the recipient of the Jeanette Lindsey Shirley Nursing Service Award.
Respondent was employed by Aventura Hospital and Medical Center (hereinafter referred to as "Aventura") from approximately March of 1993, to January of 1994, when she was terminated as a result of the incident which led to the issuance of the Administrative Complaint that is the subject of the instant case.
For the first three months of her employment at Aventura Respondent worked as a GPN (Graduate Practical Nurse).
After receiving her nursing license in June of 1993, Respondent was promoted to an LPN (Licensed Practical Nurse) position. She held this LPN position until her termination in January of 1994.
Throughout the period of her employment, Respondent was assigned to the hospital's mental health unit.
Respondent was a dedicated and loyal employee who, as general rule, got along well with the patients under her care, as well as her coworkers. Not infrequently, she would voluntarily remain on the unit after the end of her shift to make sure that her patients received the care and attention their physicians had ordered.
Prior to the incident that resulted in the termination of her employment, Respondent had an unblemished employment record at Aventura.
The incident in question occurred on or about January 17, 1994.
On the day of the incident Respondent was working the 12 midnight to 8:00 a.m. shift at the hospital.
One of the patients under her care that day was B.H.
B.H. was an elderly woman receiving treatment for depression. She required the nursing staff's assistance with Activities of Daily Living (ADLs), including dressing.
B.H. was a "very difficult" patient. She was generally uncooperative and frequently resisted, with physical force and violence, the nursing staff's efforts to provide her the help and assistance she needed with her ADLs.
On the day in question B.H. had a scheduled, early morning appointment to see her attending physician, Dr. Greener.
Dr. Greener had given explicit instructions to the nursing staff that
B.H. be awakened and dressed before the scheduled appointment.
Toward the end of her shift, Respondent went into B.H.'s room to get her ready for Dr. Greener.
Respondent was able to awaken B.H., but B.H. refused to get out of
bed.
Respondent decided to leave B.H. and take care of the other tasks she
needed to complete before the end of her shift.
When Respondent returned to B.H.'s room it was after 8:00 a.m. Although her shift had ended, Respondent felt an obligation to remain at the hospital and follow through with her efforts to fully comply with the instructions that Dr. Greener had given concerning B.H.
Dr. Greener had already arrived at the hospital and was ready to see Respondent.
Respondent pleaded with B.H. to cooperate with her. B.H., however, ignored Respondent's pleas and remained in bed.
Dr. Greener was a demanding physician who expected the nursing staff to timely comply with his every instruction. He expressed, in no uncertain terms, his disappointment when these expectations were not met. Respondent did not want to disappoint Dr. Greener. She therefore attempted to dress B.H. even though B.H. would not get out of bed.
B.H. responded to Respondent's efforts to dress her by kicking, swinging her arms and spitting at Respondent.
Despite receiving such resistance, Respondent continued to try to dress B.H. She did call for assistance, however.
Todd Sussman, who was employed as a Mental Health Technician at the hospital, was on the unit that morning and responded to Respondent's call for help.
When Sussman discovered the nature of the assistance Respondent required, he left B.H.'s room to obtain surgical gloves. Shortly thereafter, he returned to the room wearing such gloves.
As Sussman walked back into the room, he saw Respondent, who was still struggling with B.H., slap B.H. in the face and pinch B.H.'s lips together in an effort to prevent B.H. from spitting at her.
Sussman helped Respondent attempt to dress B.H. by holding B.H. by the arm. At one point, he let go of B.H. to allow Respondent to remove B.H.'s night shirt. Once her arm was free, B.H. swung it in Respondent's direction and hit Respondent in the face.
Respondent reacted by slapping B.H. "fairly hard" on or slightly above the wrist, a reaction that was witnessed by Sussman, as well as another employee of the hospital, Barry Butler, an LPN who had entered the room shortly before
B.H. had struck Respondent in the face.
Both Sussman and Butler reported to their supervisor what they had observed take place in B.H.'s room that morning.
Respondent's employment with the hospital was subsequently terminated based on the information Sussman and Butler had provided.
At no time while struggling to dress B.H. on or about January 17, 1994, did Respondent intend to, nor did she actually, harm or injure B.H. Nonetheless, during the struggle (specifically when she purposefully slapped
B.H. in the face and on or slightly above the wrist and pinched B.H.'s lips together), 2/ Respondent acted in an unprofessional manner that did not conform with the minimal standards of acceptable and prevailing nursing practice. 3/ The use of such physical force against B.H. was unnecessary and therefore inappropriate. 4/ There were other, safer (and therefore more appropriate) options (of which Respondent should have been aware in light of her training) that were available to Respondent to deal with the difficult situation she faced.
CONCLUSIONS OF LAW
The Board of Nursing (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a practical nurse licensed in the State of Florida based upon any of the grounds enumerated in Section 464.018(1), Florida Statutes.
Where the disciplinary action sought is the revocation or suspension of the nurse's license, the proof of guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Where the discipline sought does not involve the loss of licensure, the nurse's guilt need be established by only a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Klein
v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,
501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 464.018(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
The Administrative Complaint issued in the instant case alleges that Respondent violated Section 464.018(1)(h), Florida Statutes, by engaging in "unprofessional conduct" while attempting to dress one of her patients, B.H., on or about January 17, 1994.
The Agency had the burden of proving Respondent's guilt of this violation of Section 464.018(1)(h), Florida Statutes, by clear and convincing evidence, rather than by a preponderance of the evidence, inasmuch as the Administrative Complaint seeks, among other penalties, the revocation or suspension of Respondent's license.
At all times material to the instant case, subsection (1)(h) of Section 464.018, Florida Statutes, has authorized the Board to take disciplinary action against a Florida-licensed practical nurse for "[u]nprofessional conduct,
which shall include, but not be limited to, any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established."
Through the eyewitness testimony of Todd Sussman and Barry Butler, the Agency has clearly and convincingly established that, on or about January 17, 1994, while attempting to dress B.H., Respondent slapped B.H. in the face and on or slightly above the wrist and pinched B.H.'s lips together, as alleged in the Administrative Complaint. Through the expert testimony of Monica Scaccianoce, the Agency has also clearly and convincingly established that the use of such physical force constituted "unprofessional conduct," within the meaning of subsection (1)(h) of Section 464.018, Florida Statutes, as further alleged in the Administrative Complaint. See Jordan v. Department of Professional Regulation, 522 So.2d 450, 452 (Fla. 1st DCA 1988). Inasmuch as the Agency has met its burden of clearly and convincingly establishing that Respondent committed the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint, the taking of disciplinary action against Respondent is warranted.
The Board is now, and was at all times material to the instant case, authorized to impose one or more of the following penalties for a violation of subsection (1) of Section 464.018, Florida Statutes: permanent license revocation; license revocation with reinstatement; license suspension; restriction of practice; an administrative fine not to exceed $1,000.00 for each count or separate offense; probation; and a reprimand. Section 464.018(2), Fla. Stat.
In determining which of these penalties the Board should select, it is necessary to consult Chapter 59S-8, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Subsection (3) of Rule 59S-8.006, Florida Administrative Code, sets forth "the range of penalties which will normally be imposed" for a single count violation of each of the statutory provisions listed.
For a single count of "unprofessional conduct" "[i]n [the] delivery of nursing services" in violation of subsection (1)(h) of Section 464.018, Florida Statutes, the normal "range of penalties," as prescribed by subsection (3) of Rule 59S-8.006, Florida Administrative Code, is a "[f]ine from $250-$1,000 plus from one year probation with conditions and appropriate CE courses to suspension 5/ until proof of safety to practice, 6/ followed by probation with conditions." 7/
Subsection (4)(a) of Rule 59S-8.006, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range "upon a showing of aggravating or mitigating circumstances by clear and convincing evidence."
The circumstances that, according to subsection (4)(b) of Rule 59S- 8.006, Florida Administrative Code, "may be considered for purposes of mitigation or aggravation of penalty" are as follows:
The severity of the offense.
The danger to the public.
The number of repetitions of offenses.
Previous disciplinary action against the licensee in this or any other jurisdiction.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, caused by the violation.
The deterrent effect of the penalty imposed.
Any efforts at rehabilitation.
Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.
Cost of treatment.
Financial hardship.
Cost of disciplinary proceedings.
Subsection (2) of Rule 59S-8.006, Florida Administrative Code, provides that "[m]ultiple counts of violations of the same provision of Chapter 464, or the rules promulgated thereto, or other unrelated violations will be grounds for enhancement of penalties."
Having carefully considered the facts of the instant case in light of the statutory and rule provisions set forth above, the Hearing Officer concludes that, for having committed the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint, Respondent should be fined $250.00 and placed on probation (of the type specified in subsection (1)(g) of Rule 59S-8.006, Florida Administrative Code: "[p]robation with specified continuing education courses in addition to the minimum conditions") for a period of eighteen months.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violation of subsection (1)(h) of Section 464.018, Florida Statutes, alleged in the Administrative Complaint and disciplining her for having committed this violation by fining her $250.00 and placing her on probation (of the type specified in subsection (1)(g) of Rule 59S-8.006, Florida Administrative Code: "[p]robation with specified continuing education courses in addition to the minimum conditions") for a period of eighteen months.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1996.
STUART M. LERNER, 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 4th day of January, 1996.
ENDNOTES
1/ Scaccianoce testified as both a fact witness and an expert witness.
2/ The Hearing Officer's finding that Respondent slapped B.H. in the face and pinched B.H.'s lips together is based on Sussman's eyewitness testimony. The Hearing Officer's finding that Respondent later slapped B.H. on or slightly above the wrist is based on both Sussman's and Butler's eyewitness testimony. Both Sussman and Butler testified with apparent sincerity and honesty concerning what they observed. Their accounts of what happened are plausible and there has been no showing that they had any motive or reason to testify falsely.
Accordingly, the Hearing Officer has credited their testimony over Respondent's self-serving testimony to the contrary.
3/ This finding is based upon the unrebutted expert testimony of Monica Scaccianoce, the nurse manager of Aventura's mental health unit. Scaccianoce has a Bachelor of Science degree in nursing from Florida State University and a Master of Science degree in nursing administration from Barry University. In addition, she has approximately 17 years of nursing experience. Much of her nursing experience has involved working with mental health patients.
4/ In dealing with a "difficult patient" like B.H., a nurse's "first job" is to protect the patient against harm or injury.
5/ Subsection (1) of Rule 59S-8.006, Florida Administrative Code, specifies that the following types of suspensions may be imposed upon licensees as disciplinary penalties:
Suspension until appearance before the Board or for a definite time period and demonstration of ability to practice safely.
Suspension until appearance before the board, or for a definite time period, and submission of mental or physical examinations from professionals specializing in the diagnosis or treatment of the suspected condition, completion of counseling, completion of continuing education, demonstration of sobriety and ability to practice safely.
Suspension until fees and fines paid or until proof of continuing education completion submitted.
Suspension until evaluation by and treatment in the Intervention Project for Nurses. In cases involving substance abuse, chemical dependency, sexual misconduct, physical, or mental conditions which may hinder the ability
to practice safely, the Board finds participation in the IPN under a stayed suspension to be the preferred and most successful discipline.
Suspension stayed so long as the licensee complies with probationary conditions.
6/ According to Rule 59S-8.011(2), Florida Administrative Code,
In order to demonstrate the present ability to engage in the safe practice of nursing, the nurse must submit evidence which may include:
Completion of continuing education courses approved by the Board, particularly if the disciplinary action resulted from unsafe practice or the nurse has been out of practice for a number of years.
Participation in nursing programs, including refresher courses, clinical skills courses, and any board approved nursing education programs leading to licensure in this state, particularly if the nurse has been out of practice for a number of years.
Submission of evaluations of mental or physical examinations by appropriate professionals which attest to the nurse's present ability to engage in safe practice or conditions under which safe practice can be attained.
Completion of treatment within a program designed to alleviate alcohol or other chemical dependencies, including necessary aftercare measures or a plan for continuation of such treatment as appropriate. Current sobriety must be demonstrated.
Other educational achievements, employment background, references, successful completion of criminal sanctions imposed by the courts and restoration of civil rights if a convicted felon, or other factors which would demonstrate rehabilitation and present ability to engage in the safe practice of nursing.
7/ Subsections (1)(f), (g), (h) and (i) of Rule 59S-8.006, Florida Statutes, identifies the following types of probations upon which a licensee may be placed:
Probation with the minimum conditions of not violating laws, rules, or orders related to the ability to practice nursing safely, keeping the Board advised of the nurse's address and employment, and supplying both timely and satisfactory probation and employer/supervisor reports.
Probation with specified continuing education courses in addition to the minimum conditions. In those cases involving unprofessional conduct or substandard practice, including recordkeeping, the Board finds continuing education directed to the practice deficiency to be the preferred punishment.
Probation with added conditions of random drug screens, abstention from alcohol and drugs, participation in narcotics or alcoholics anonymous, psychological counseling, the prohibition on agency work, or the requirement that work must be under direct supervision on a regularly assigned unit.
Personal appearances before the Board to monitor compliance with the Board's order.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-3887
The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their proposed recommended orders:
The Agency's Proposed Findings
1. First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: Not
incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
2-17. Accepted and incorporated in substance.
18. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
19-23. Accepted and incorporated in substance.
24. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
25-28. Accepted and incorporated in substance.
29. Rejected as a finding of fact because it is more in the nature of a statement of what transpired at hearing than a finding of fact.
30-32. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact. See T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)("Hearing Officer's "factual findings" which "merely summarize[d] the testimony of witnesses" were "insufficient").
Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.
36-39. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
40-41. Accepted and incorporated in substance.
42-43. Rejected as findings of fact because they are more in the nature of summaries of testimony than findings of fact.
Respondent's Proposed Findings
1-4. To the extent that these proposed findings state that, while trying to dress B.H. on or about January 17, 1994, Respondent did not slap B.H. in the face or on or slightly above the wrist, nor did she pinch B.H.'s lips together, these proposed findings have been rejected because they are contrary to testimony that the Hearing Officer has determined to be more credible than the testimony supporting these proposed findings.
5-6. Accepted and incorporated in substance.
7. Rejected because the justness and fairness of Aventura's termination of Respondent's employment is not at issue in the instant case.
COPIES FURNISHED:
Natalie Duguid, Esquire Agency for Health Care
Administration
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Maverlyn A. Johnson
18911 Northwest 7th Court Miami, Florida 33169
Judie Ritter, Executive Director Board of Nursing
Agency for Health Care Administration
Daniel Building, Room 50
111 East Coastline Drive Jacksonville, Florida 32202
Jerome H. Hoffman, Esquire General Counsel
Agency for Health Care Administration
The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
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 of time 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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF NURSING
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
DOAH NO. 95-3887
vs. CASE NO. 94-13392
LICENSE NO. 1113121
MAVERLYN JOHNSON, LPN,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Nursing pursuant to Section 120.57(1), Florida Statutes, on February 8,1996, in Daytona Beach, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is
attached as Exhibit A) in the case of Agency for Health Care Administration v. Maverlyn Johnson LPN, Case No. 94-13392. At the hearing, Petitioner was represented by Laura Gaffney, Senior Attorney. Respondent was not present nor represented by counsel. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference except for paragraph 36 which is rejected. The Board finds that paragraph 36 is an inaccurate statement of law in that the position of law referenced therein applies to school board dismissal cases and not disciplinary hearings regarding professional licensure.
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officer's recommendation that Respondent violated Section 464.018(1)(h), Florida Statutes.
WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Section 464.018(1)(h), Florida Statutes, and Respondent's license shall be placed on probation for 18 months, subject to the following conditions:
The licensee shall not violate chapters 455 or 464, Florida Statutes, the rules promulgated pursuant thereto, any other state or federal law, rule, or regulation relating to the practice or the ability to practice nursing.
The licensee must report any change in her address, telephone number, employment, employer's address or telephone number, or any arrests [or violations of probation or whatever impediment which may be on the license from another jurisdiction], in writing by certified mail within 5 working days to the Probation Supervisor at the Board of Nursing Office. 9041359-6331, 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The probationer's failure to supply such information on a timely basis shall constitute grounds for the licensee to attend the next Board meeting to show cause why the probation should not be modified or the license suspended.
The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee's name, license number, current address, name, address, and phone number of each current employer, whether employed as a nurse or not, and a statement by the licensee describing her employment. This report shall be submitted to the Probation Supervisor every three (3) months in a manner as directed by the Probation Supervisor. If the licensee fails to submit a quarterly report on a timely basis, she will be
required to attend the next Board meeting to show cause why the probation should not be modified or the license suspended.
All current and future settings in which the probationer practices nursing shall be promptly informed of the licensee's probationary status. Within five days of the receipt of this Order, the licensee shall furnish a copy to her nursing supervisor or supervisors, if there are multiple employers. The supervisors must acknowledge this probation to the Board probation supervisor in writing on employer letterhead within ten days. Should the license change employers, she must supply a copy of this Order to her new nursing supervisor within five days. The new employer shall acknowledge probation in writing on employer letterhead to the Board probation supervisor within ten days. The licensee shall be responsible for assuring reports from the nursing supervisors will be furnished to the Board probation supervisor every three (3) months.
That report shall describe the licensees work assignment, work load, level of performance1 and any problems.
The licensee shall enroll in and successfully complete courses in legal aspects of nursing and stress management. This shall be in addition to other normally required continuing education courses. Verification of course content and course completion must be submitted to the Probation Supervisor within 60 days from the date of this Order. If the licensee fails to complete the courses on a timely basis, he1she will be required to attend the next Board meeting to show cause why the probation should not be modified or the license suspended.
If the licensee leaves Florida for thirty days or more or ceases to practice nursing in the state1 her probation shall be tolled until the licensee returns to active practice of nursing in Florida. Then the probationary period will resume.
The licensee must work in a setting under direct supervision and only on a regularly assigned unit. Direct supervision requires another nurse to be working on the same unit as respondent and readily available to provide assistance and intervention. She cannot be employed by a nurse registry, temporary nurse employment agency or home health agency. Multiple employers are prohibited. The licensee cannot be self- employed as a nurse.
The applicant must pay an administrative fine of $250.00 within sixty (60) days of the final order. Failure to pay the fine in a timely manner will require the licensee to show cause at the next Board meeting why the license should not be suspended. The probationer has the responsibility to document financial hardships prior to the due date of the fine payment.
This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.
The parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE AND ORDERED this 6th day of March, 1996.
BOARD OF NURSING
Nancy J. Breen, RN Chairman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by certified mail to Maverlyn Johnson, LPN, 18911 N.W. 7th Court, Miami, Florida 33169, and by interoffice mail to Laura P. Gaffney, Attorney at Law, Agency for Health Care Administration, 1940 N. Monroe Street, Tallahassee, FL. 32399-0773 this 11th day of March, 1996.
M. C. Cunningham
| Issue Date | Proceedings |
|---|---|
| Jun. 26, 1996 | Final Order filed. |
| Jan. 04, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 11/07/95. |
| Dec. 14, 1995 | (Respondent) Proposed Recommended Order filed. |
| Dec. 12, 1995 | Petitioner's Proposed Recommended Order filed. |
| Dec. 05, 1995 | Order sent out. (proposed recommended orders shall be filed no later than 12/14/95) |
| Dec. 01, 1995 | (Petitioner) Motion for Extension of Time filed. |
| Nov. 21, 1995 | Transcript filed. |
| Oct. 30, 1995 | Order Denying Motion and Rescheduling Hearing sent out. (hearing rescheduled for 11/7/95; 9:30am; Miami) |
| Oct. 24, 1995 | (Petitioner) Motion to Preserve Testimony by Deposition in Lieu of Live Testimony filed. |
| Oct. 23, 1995 | (Petitioner) Notice of Filing Witness and Exhibit List filed. |
| Sep. 18, 1995 | Notice of Serving Petitioner's First Set of Interrogatories, Request for Admissions, and Production of Documents to Respondent filed. |
| Aug. 25, 1995 | Order of Prehearing Instructions sent out. |
| Aug. 25, 1995 | Notice of Hearing sent out. (hearing set for 11/2/95; 10:00am; Miami) |
| Aug. 16, 1995 | Letter. to Hearing Officer from Maverlyn Johnson re: Reply to Initial Order; (Petitioner) Unilateral Response to Initial Order filed. |
| Aug. 08, 1995 | Initial Order issued. |
| Aug. 03, 1995 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 06, 1996 | Agency Final Order | |
| Jan. 04, 1996 | Recommended Order | Licensed Practical Nurse who slapped uncooperative patient and pinched patient's lips together while attempting to dress patient guilty of unprofessional conduct. |
