STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02-0317PL

)

CHARSEE BOSTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on April 2, 2002, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Amy M. Pietrodangelo, Esquire

Agency for Health Care Administration Post Office Box 14229, Mail Stop No.39 Tallahassee, Florida 32317-4229

For Respondent: Charsee Boston, pro se

1578 Quail Drive, No. 2

West Palm Beach, Florida 33409

STATEMENT OF THE ISSUE

Whether Respondent committed the violation alleged in the Third Amended Administrative Complaint, and, if so, what disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On or about November 30, 2001, Petitioner filed a Third Amended Administrative Complaint (Administrative Complaint) alleging that Respondent, a Florida-certified nursing assistant, "is subject to discipline pursuant to Section 456.072(1)(k), Florida Statutes (2000) by failing to perform the statutory and legal obligations placed upon [her as] a licensee." According to the Administrative Complaint, while employed as a certified nursing assistant at a nursing home in Palm Beach Gardens, Florida, and providing "nursing care assistance to Patient

F. F.," Respondent committed the following "intentional acts that could reasonably be expected to result in physical or psychological injury" to F. F.: "taunted and mimicked resident

1. F. by repeatedly calling out [F. F.'s] husband's name"; "caused F. .F. to cry out in pain by pinching her check"; and "lifted patient F. F.'s arms past a comfortable range or motion."

   Through the submission of a completed Election of Rights form, Respondent denied the allegations of wrongdoing made in the Administrative Complaint and requested "a hearing involving

   disputed issues of material fact, pursuant to Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes, before an Administrative Law Judge appointed by the Division of Administrative Hearings." On January 22, 2002, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Respondent had requested.

   As noted above, the final hearing in this case was held on April 2, 2002. Seven witnesses testified at the final hearing: Janice Symonette, Joan Joseph, Linda Watford, June Slote, Joseph Mancini, Natalie Russell, and Respondent. In addition to the testimony of these seven witnesses, 22 exhibits (Petitioner's Exhibits 1 through 20, 22, and 23) were offered and received into evidence.

   At the close of the evidentiary portion of the hearing, the undersigned established a deadline (20 days from the date of the filing of the hearing transcript with the Division of Administrative Hearings) for the filing of proposed recommended orders. On April 17, 2002, Respondent filed a letter addressed to the undersigned in which she argued that "what happen[ed]" on the day in question "was totally a misunderstanding and that no further action should be taken against [her]." A Transcript of the final hearing (consisting of one volume) was filed with the Division of Administrative Hearings on May 3, 2002. On May 22,

   2002, Petitioner filed its Proposed Recommended Order. Both Respondent's post-hearing letter and Petitioner's Proposed Recommended Order have been carefully considered by the undersigned.

   FINDINGS OF FACT

   
   

   Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

   1. Respondent is now, and has been since May 8, 1996, a Florida-certified nursing assistant. She holds certificate number 0596 264813317.

   2. From December 20, 1999, to February 21, 2001, Respondent was employed as a certified nursing assistant at Heartland Health Care-Prosperity Oaks (Heartland), a nursing home in Palm Beach Gardens, Florida.

   3. Upon being hired by Heartland, Respondent was given a copy of a document which contained the facility's "policy on Resident Rights," and Respondent acknowledged, in writing, that she understood that it was her obligation "to comply with this policy as [a] condition of her employment." The document contained the following provisions, among others:

      STATE RESIDENT RIGHTS

      
      

      * * *

      
      

      1. TREATMENT

         
         

         The facility must treat you [the resident] courteously, fairly, and with the fullest measure of dignity. . . .

         
         

      2. ABUSE, PUNISHMENT, AND RESTRAINT

         
         

         While a resident at this facility, you [the resident] have the right to be free from mental and physical abuse . . . .

         
         

         * * * FEDERAL RESIDENT RIGHTS

         (A) EXERCISE OF RIGHTS

         
         

         1. You [the resident] have the right to a dignified existence . . . .

         
         

         * * *

         
         

         (Q) RESIDENT BEHAVIOR AND FACILITY PRACTICES

         
         

         1. You [the resident] have the right to be treated with dignity and to expect that the facility will:

            
            

            * * *

            
            

            d. promote care for residents in a manner and in an environment that maintains or enhances dignity and respect in full recognition of his or her individuality.

            
            

         2. The right to be free from verbal, . . . physical, or mental abuse . . . .

         
         

         * * *

         5. The right to be cared for in an environment that promotes maintenance or enhancement of your [the resident's] dignity and respect in full recognition of his or her individuality.

         
         

   4. At the time of her hire, Respondent was also presented with the following "abuse prevention" statement, which she signed and dated (December 20, 1999):

      It is the policy of HCR-ManorCare, Heartland of Prosperity Oaks, that every resident has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment and involuntary seclusion.

      Residents will not be subjected to abuse by anyone, including but not limited to, center staff, other residents, consultants or volunteers, staff of other agencies serving the resident, family members or legal guardians, friends or other individuals.

      
      

      I have read the above description of Abuse Prevention in this center and agree to abide by the company's written policy regarding abuse.

      
      

   5. Throughout the period of her employment at Heartland, Respondent was reminded both verbally (at in-service training sessions) and in writing (through written memoranda) of her obligation to treat the facility's residents in a non-abusive manner and with dignity and respect.

   6. At all times material to the instant case, F. F. was a resident at Heartland.

   7. F. F. suffered from dementia and was confined to a wheelchair. She needed assistance in virtually every activity of daily living.

   8. On February 20, 2001, Respondent was involved in an incident in which she acted abusively toward F. F. (who was 78 years old at the time) in derogation of Respondent's obligation to refrain from such conduct.

   9. While Respondent and a co-worker were tending to F. F. outside F. F.'s room that morning, F. F. shouted out, a number of times, "Where's Jack?", referring to her husband, who regularly visited her at the facility. (This is something that

      F. F. did frequently, particularly in the morning before her husband arrived for his daily visit.)

   10. Respondent responded to these shouts in a disrespectful and demeaning manner by mimicking F. F. Respondent's mocking cries of, "Where's Jack?", could be heard by others in the general vicinity.

   11. Not only did Respondent verbally abuse F. F. during this February 20, 2001, incident, she physically abused F. F. as well.

   12. With both of her hands, Respondent grabbed one of

       
       

       F. F.'s arms at or near the wrist and, as if she was "playing with a rag doll," repeatedly swung the arm in a rough manner beyond its normal range of motion.

   13. F. F. cried out in pain and asked Respondent to stop hurting her. Respondent ignored F. F.'s pleas and continued "playing" with F. F.'s arm.

   14. F. F. had just had extensive oral surgery and her cheek was visibly bruised as a result of the surgery. Nonetheless, after finally letting go of F. F.'s arm, Respondent pinched F. F. on the cheek, resulting in a "very loud shout of pain" from F. F.

   15. Hearing F. F.'s screams, a staff nurse walked over to Respondent and told her to leave F. F. alone. Respondent just "laughed and giggled [in response to the nurse's request] and continued" to mistreat F. F.

   16. Eventually, Respondent and her co-worker "went into [F. F.'s] room together and left [F. F.]" alone sitting in her wheelchair outside the room.

   17. This February 20, 2001, incident involving Respondent and F. F. was reported to the administrator of Heartland.

   18. Following an investigation, Respondent was terminated by Heartland, effective February 21, 2001, for her mistreatment of F. F.

       CONCLUSIONS OF LAW

       
       

   19. The Administrative Complaint issued in the instant case alleges that Respondent "is subject to discipline pursuant to Section 456.072(1)(k), Florida Statutes (2000) by failing to

       perform the statutory and legal obligations placed upon [her as] a licensee."

   20. Pursuant to Subsection (1)(k) of Section 456.072, Florida Statutes, regulatory boards within the Department of Health, including the Board of Nursing (Board), are now, and have been at all times material to the instant case, statutorily empowered to take one or more of the "disciplinary actions specified in subsection (2)" of the statute against a licensee or certificate holder who "[f]ail[s] to perform any statutory or legal obligation placed upon [the] licensee [or certificate holder]."

   21. Subsection (2) of Section 456.072, Florida Statutes, provides as follows:

       When the board, or the department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

       
       

       1. Refusal to certify, or to certify with restrictions, an application for a license.

          
          

       2. Suspension or permanent revocation of a license.

          
          

       3. Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work

          only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.

          
          

       4. Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of

          $10,000 per count or offense.

          
          

       5. Issuance of a reprimand or letter of concern.

          
          

       6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

          
          

       7. Corrective action.

          
          

       8. Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.[1]

       9. Refund of fees billed and collected from the patient or a third party on behalf of the patient.

          
          

       10. Requirement that the practitioner undergo remedial education.

       In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.

       
       

   22. Subsections (4) and (6) of Section 456.072, Florida Statutes, provide as follows:

       (4) In addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, pursuant to this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case. In any case where the board or the department imposes a fine or assessment and the fine or assessment is not paid within a reasonable time, such reasonable time to be prescribed in the rules of the board, or the department when there is no board, or in the order assessing such fines or costs, the department or the Department of Legal Affairs may contract for the collection of, or bring a civil action to recover, the fine or assessment.

       
       

       (6) In the event the board, or the department when there is no board, determines that revocation of a license is the appropriate penalty, the revocation shall be permanent. However, the board may establish by rule requirements for reapplication by applicants whose licenses have been permanently revoked. Such

       requirements may include, but shall not be limited to, satisfying current requirements for an initial license.

       
       

   23. "No revocation [or] suspension . . . of any [Florida- certified nursing assistant's certificate] is lawful unless, prior to the entry of a final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the [certificate holder] of facts or conduct which warrant the intended action and unless the [certificate holder] has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.

   24. The certificate holder must be afforded an evidentiary hearing if, upon receiving such written notice, he or she disputes the alleged facts set forth in the administrative complaint. Sections 120.569(1) and 120.57, Florida Statutes.

   25. At the hearing, Petitioner bears the burden of proving that the certificate holder engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the certificate holder's guilt is required. See Department of Banking and Finance, Division of Securities and Investor

       Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987);

       Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

   26. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

       the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   27. In determining whether Petitioner has met its burden of proof, it is necessary to evaluate its evidentiary presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an

       agency from taking disciplinary action against a certificate holder based upon conduct not specifically alleged in the agency's administrative complaint or other charging instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

       Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

   28. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the certificate holder. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board

       of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

   29. In the instant case, Petitioner has charged Respondent with violating Subsection (1)(k) of Section 456.072, Florida Statutes, by treating F. F. in an abusive manner on or about

       February 20, 2001, while Respondent was employed at Heartland and "assigned to provide nursing assistance to . . . F. F."

   30. The record evidence clearly and convincingly establishes that Respondent engaged in the conduct alleged by Petitioner and that, in doing so, she breached the obligation she had pursuant to statute,2 as well as pursuant to the terms of the documents she signed upon being hired by Heartland, to refrain from such conduct and thereby violated Subsection (1)(k) of Section 456.072, Florida Statutes.

   31. Accordingly, the Board is authorized to take one or more of the "disciplinary actions specified in subsection (2)" of Section 456.072, Florida Statutes, against Respondent and, in addition, pursuant to Subsection (4) of Section 456.072, Florida Statutes, must "assess costs related to the investigation and prosecution of the case."

   32. In its Proposed Recommended Order, Petitioner proposes that the undersigned recommend that the Board exercise its discretion to revoke Respondent's certification for her violation of Subsection (1)(k) of Section 456.072, Florida Statutes.

   33. The undersigned agrees that such "disciplinary action" is appropriate, given the seriousness of Respondent's violation and the need "to protect the public" from Respondent committing violations of a similar nature in the future.3

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board issue a final order in which it finds Respondent guilty of the violation alleged in the Administrative Complaint and, as punishment therefore, revokes her certification and requires her to pay the "costs related to the investigation and prosecution of the case."

DONE AND ENTERED this 28th day of May, 2002, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2002.

ENDNOTES

1/ Section 381.0261, Florida Statutes, authorizes the imposition of administrative fines against health care facilities and providers who fail to make available to their patients the requisite "summary of their [patients'] rights." It provides as follows:

1. The Agency for Health Care Administration shall have printed and made continuously available to health care

   facilities licensed under chapter 395, physicians licensed under chapter 458, osteopathic physicians licensed under chapter 459, and podiatric physicians licensed under chapter 461 a summary of the Florida Patient's Bill of Rights and Responsibilities. In adopting and making available to patients the summary of the Florida Patient's Bill of Rights and Responsibilities, health care providers and health care facilities are not limited to the format in which the Agency for Health Care Administration prints and distributes the summary.

   
   

2. Health care providers and health care facilities, if requested, shall inform patients of the address and telephone number of each state agency responsible for responding to patient complaints about a health care provider or health care facility's alleged noncompliance with state licensing requirements established pursuant to law.

   
   

3. Health care facilities shall adopt policies and procedures to ensure that inpatients are provided the opportunity during the course of admission to receive information regarding their rights and how to file complaints with the facility and appropriate state agencies.

(4)(a) An administrative fine may be imposed by the Agency for Health Care Administration when any health care facility fails to make available to patients a summary of their rights, pursuant to s.

381.026 and this section. Initial nonwillful violations shall be subject to corrective action and shall not be subject to an administrative fine. The Agency for Health Care Administration may levy a fine against a health care facility of up to

$5,000 for nonwillful violations and up to

$25,000 for intentional and willful violations. Each intentional and willful

violation constitutes a separate violation and is subject to a separate fine.

(b) An administrative fine may be imposed by the appropriate regulatory board, or the department if there is no board, when any health care provider fails to make available to patients a summary of their rights, pursuant to s. 381.026 and this section. Initial nonwillful violations shall be subject to corrective action and shall not be subject to an administrative fine. The appropriate regulatory board or department may levy a fine against a health care provider of up to $100 for nonwillful violations and up to $500 for willful violations. Each intentional and willful violation constitutes a separate violation and is subject to a separate fine.

1. In determining the amount of fine to be levied for a violation, as provided in subsection (4), the following factors shall be considered:

   
   

   1. The scope and severity of the violation, including the number of patients found to not have received notice of patient rights, and whether the failure to provide notice to patients was willful.

      
      

   2. Actions taken by the health care provider or health care facility to correct the violations or to remedy complaints.

      
      

   3. Any previous violations of this section by the health care provider or health care facility.

      
      

      2/ As a member of the Heartland staff, Respondent had an obligation, under Section 400.022, Florida Statutes, to "implement the provisions of this section," including Subsection (1)(n) thereof, which provides, in pertinent part, that nursing home residents have "[t]he right to be treated courteously, fairly, and with the fullest measure of dignity," and Subsection (1)(o) thereof, which provides, in pertinent part, that nursing home residents have"[t]he right to be free from mental and

      physical abuse." Furthermore, pursuant to Subsection (1)(b) of Section 825.102, Florida Statutes, Respondent was prohibited from committing (as she did) "[a]n intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person," defined in Subsection (5) of Section 825.101, Florida Statutes, as "a person [like F. F., who is] 60 years of age or older [and] who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired."

      
      

      3/ The Board has not adopted, by rule, any "disciplinary guidelines" explaining how it will go about deciding what "disciplinary action(s)" to take against certified nursing assistants who violate Subsection (1)(k) of Section 456.072, Florida Statutes, notwithstanding the requirements of Section 456.079, Florida Statutes, which provides as follows:

      
      

      1. Each board, or the department if there is no board, shall adopt by rule and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department if there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department.

         
         

      2. The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses, it being the legislative intent that minor violations be distinguished from those which endanger the public health, safety, or welfare; that such guidelines provide reasonable and meaningful notice to the public of likely penalties which may be imposed for proscribed conduct; and that such penalties be consistently applied by the board.

         
         

      3. A specific finding in the final order of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such

         guidelines. If applicable, the board, or the department if there is no board, shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.

         
         

      4. The department must review such disciplinary guidelines for compliance with the legislative intent as set forth herein to determine whether the guidelines establish a meaningful range of penalties and may also challenge such rules pursuant to s. 120.56.

         
         

      5. The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.

(The "disciplinary guidelines" found in Rule 64B9-8.006, Florida Administrative Code, apply to violations committed by nurses, not certified nursing assistants.) Nonetheless, in contrast to the situation in Arias v. Department of Business and Professional Regulation, Division of Real Estate, 710 So. 2d 655 (Fla. 3d DCA 1998), where the Third District Court of Appeal held that a real estate agent could not be disciplined by the Florida Real Estate Commission for committing a violation of Subsection (1)(b) of Section 475.25, Florida Statutes, inasmuch as the Commission had not complied with a legislative directive that it establish, by rule, "disciplinary guidelines" for such violations, the Board's failure to have complied with Section 456.079, Florida Statutes, did not place Respondent in any "predicament" of uncertainty concerning what the likely response to her misconduct by the Board would be. She could not have reasonably expected that the Board would impose upon her anything but the harshest punishment available--revocation of her certification--for her mistreatment of F. F.

COPIES FURNISHED:

Amy M. Pietrodangelo, Esquire

Agency for Health Care Administration Post Office Box 14229, Mail Stop No.39 Tallahassee, Florida 32317-4229

Charsee Boston

1578 Quail Drive, No. 2

West Palm Beach, Florida 33409

Ruth R. Stiehl, Ph.D., R.N., Executive Director Department of Health

Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

1 Section 381.0261, Florida Statutes, authorizes the imposition of administrative fines against health care facilities and providers who fail to make available to their patients the requisite "summary of their [patients'] rights." It provides as follows:

1. The Agency for Health Care Administration shall have printed and made continuously available to health care

   
   

   facilities licensed under chapter 395, physicians licensed under chapter 458, osteopathic physicians licensed under chapter 459, and podiatric physicians licensed under chapter 461 a summary of the Florida Patient's Bill of Rights and Responsibilities. In adopting and making available to patients the summary of the Florida Patient's Bill of Rights and Responsibilities, health care providers and health care facilities are not limited to the format in which the Agency for Health Care Administration prints and distributes the summary.

   
   

2. Health care providers and health care facilities, if requested, shall inform patients of the address and telephone number of each state agency responsible for responding to patient complaints about a health care provider or health care facility's alleged noncompliance with state licensing requirements established pursuant to law.

   
   

3. Health care facilities shall adopt policies and procedures to ensure that inpatients are provided the opportunity during the course of admission to receive information regarding their rights and how to file complaints with the facility and appropriate state agencies.

(4)(a) An administrative fine may be imposed by the Agency for Health Care Administration when any health care facility fails to make available to patients a summary of their rights, pursuant to s.

381.026 and this section. Initial nonwillful violations shall be subject to corrective action and shall not be subject to an administrative fine. The Agency for Health Care Administration may levy a fine against a health care facility of up to

$5,000 for nonwillful violations and up to

$25,000 for intentional and willful

violations. Each intentional and willful violation constitutes a separate violation and is subject to a separate fine.

(b) An administrative fine may be imposed by the appropriate regulatory board, or the department if there is no board, when any health care provider fails to make available to patients a summary of their rights, pursuant to s. 381.026 and this section. Initial nonwillful violations shall be subject to corrective action and shall not be subject to an administrative fine. The appropriate regulatory board or department may levy a fine against a health care provider of up to $100 for nonwillful violations and up to $500 for willful violations. Each intentional and willful violation constitutes a separate violation and is subject to a separate fine.

1. In determining the amount of fine to be levied for a violation, as provided in subsection (4), the following factors shall be considered:

   
   

   1. The scope and severity of the violation, including the number of patients found to not have received notice of patient rights, and whether the failure to provide notice to patients was willful.

      
      

   2. Actions taken by the health care provider or health care facility to correct the violations or to remedy complaints.

      
      

   3. Any previous violations of this section by the health care provider or health care facility.

      2 As a member of the Heartland staff, Respondent had an obligation, under Section 400.022, Florida Statutes, to "implement the provisions of this section," including Subsection (1)(n) thereof, which provides, in pertinent part, that nursing home residents have "[t]he right to be treated courteously, fairly, and with the fullest measure of dignity," and Subsection

      
      

      (1)(o) thereof, which provides, in pertinent part, that nursing home residents have"[t]he right to be free from mental and physical abuse." Furthermore, pursuant to Subsection (1)(b) of Section 825.102, Florida Statutes, Respondent was prohibited from committing (as she did) "[a]n intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person," defined in Subsection (5) of Section 825.101, Florida Statutes, as "a person [like F. F., who is] 60 years of age or older [and] who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired."

      
      

      3 The Board has not adopted, by rule, any "disciplinary guidelines" explaining how it will go about deciding what "disciplinary action(s)" to take against certified nursing assistants who violate Subsection (1)(k) of Section 456.072, Florida Statutes, notwithstanding the requirements of Section 456.079, Florida Statutes, which provides as follows:

      
      

      1. Each board, or the department if there is no board, shall adopt by rule and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department if there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department.

         
         

      2. The disciplinary guidelines shall specify a meaningful range of designated penalties based upon the severity and repetition of specific offenses, it being the legislative intent that minor violations be distinguished from those which endanger the public health, safety, or welfare; that such guidelines provide reasonable and meaningful notice to the public of likely penalties which may be imposed for proscribed conduct; and that such penalties be consistently applied by the board.

         
         

      3. A specific finding in the final order of mitigating or aggravating circumstances shall allow the board to impose a penalty other than that provided for in such guidelines. If applicable, the board, or the department if there is no board, shall adopt by rule disciplinary guidelines to designate possible mitigating and aggravating circumstances and the variation and range of penalties permitted for such circumstances.

         
         

      4. The department must review such disciplinary guidelines for compliance with the legislative intent as set forth herein to determine whether the guidelines establish a meaningful range of penalties and may also challenge such rules pursuant to s. 120.56.

         
         

      5. The administrative law judge, in recommending penalties in any recommended order, must follow the penalty guidelines established by the board or department and must state in writing the mitigating or aggravating circumstances upon which the recommended penalty is based.

(The "disciplinary guidelines" found in Rule 64B9-8.006, Florida Administrative Code, apply to violations committed by nurses, not certified nursing assistants.) Nonetheless, in contrast to the situation in Arias v. Department of Business and Professional Regulation, Division of Real Estate, 710 So. 2d 655 (Fla. 3d DCA 1998), where the Third District Court of Appeal held that a real estate agent could not be disciplined by the Florida Real Estate Commission for committing a violation of Subsection (1)(b) of Section 475.25, Florida Statutes, inasmuch as the Commission had not complied with a legislative directive that it establish, by rule, "disciplinary guidelines" for such violations, the Board's failure to have complied with Section 456.079, Florida Statutes, did not place Respondent in any "predicament" of uncertainty concerning what the likely response to her misconduct by the Board would be. She could not have reasonably expected that the Board would impose upon her anything but the harshest punishment available--revocation of her certification--for her mistreatment of F. F.

Docket for Case No: 02-000317PL

Orders for Case No: 02-000317PL