STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 07-3613

) HEALTH OPPORTUNITY TECHNICAL ) CENTER, INC., )

)

Respondent.1 )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 26, 2008, by video teleconference, with the parties appearing in Miami, Florida, before Patricia M. Hart, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lee Ann Gustafson, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

For Respondent: Gregory M. Oshalek, Esquire

90 Southwest 8th Street, Suite 211 Miami, Florida 33130

STATEMENT OF THE ISSUE

Whether the Respondent's provisional approval to operate a practical nursing program should be rescinded for the reasons

stated in the Notice of Intent to Rescind Program Approval dated May 10, 2007.

PRELIMINARY STATEMENT

In a Notice of Intent to Rescind Program Approval dated May 10, 2007, the Board of Nursing ("Board") notified Health Opportunity Technical Center ("HOTC") that it intended to rescind HOTC's "application for certification to maintain provisional approval" of its practical nursing program because it was "not in compliance with the standard terms of their provisional approval." The Board alleged that HOTC "failed to demonstrate student success within 10 percentage points below the national average on [sic] pass rate as reported annually by the National Council [of] State Boards of Nursing," as required by Section 464.019(6) and (7), Florida Statutes. The Board also alleged that HOTC "does not meet Florida Administrative Code, 64B9-2.015(12) Program Evaluation; 64B9-2.015(1)(d)(f) student admission records and class lists; 64B9-2.015(2)(b)2.(d) remediation of students allowed to progress not meeting

institutional progression standards."2 Finally, the Board stated that "[b]ased on the foregoing, the Florida Board of Nursing may refuse to certify an applicant for provisional approval, or impose conditions, pursuant to Sections 464.018(2) and 456.072(2), Florida Statutes."

HOTC requested an administrative hearing to resolve disputed issues of fact, and the Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The final hearing in this case was originally scheduled for May 10, 2007; after several continuances, the final hearing was held, pursuant to notice, on August 26, 2008.

At the hearing, the Board conceded that the preliminary decision to rescind approval of HOTC's NCLEX-PN was akin to a license revocation proceeding and accepted the burden of proof and the burden of going forward with the evidence. The Board presented the testimony of Rick Garcia but did not offer any documents into evidence. HOTC presented the testimony of Carol Johnson and Joyce Byrd-Strozier, and Respondent's Exhibits 1 through 8, 10, 11, and 13 through 16 were offered and received into evidence.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on September 19, 2008.

The Board's request for an extension of time for filing its proposed recommended order was granted, and the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Board is, and was at the times material to this matter, the state agency responsible for reviewing and approving nursing programs in Florida pursuant to Section 464.019, Florida Statutes (2007).3

2. HOTC's practical nursing program was provisionally approved in June 2003, and HOTC has been operating its practical nursing program since that time.

3. HOTC admitted the first class of students into its practical nursing program in August 2003, and it became accredited by the Accrediting Bureau of Health Education Schools in July 2005.

4. The practical nursing program provided by HOTC is directed to non-traditional students, that is, students who are pursuing a second career, students who come from an underprivileged community, and students who need additional help.

5. The practical nursing program at HOTC takes over one year to complete. There is only one course in the program that is a prerequisite to all other courses in the program, and this course must be satisfactorily completed before a student is

   allowed to take other courses. No other courses in the program are sequential, and students who have passed the one pre- requisite course may take any of the courses in the program, even if they have failed one or more courses. Each student must, however, satisfactorily complete all courses before he or she can graduate from the program.

6. On February 4, 2005, HOTC sent a list of the students in its first graduating class to the Board so that the Board could certify the graduates as eligible to take the National Comprehensive Licensure Examination for practical nursing, known as the NCLEX-PN, given under the auspices of the National Council of State Boards of Nursing ("Council"). A candidate must pass the NCLEX-PN in order to qualify for licensure in Florida as a practical nurse.

7. The Council contracts with a vendor, which administers the examination each quarter. Each quarter, the vendor issues reports to the Board containing the pass-rates on the NCLEX-PN; the reports are provided to the Board on the 15th day of the month following the end of each quarter. Each quarterly report contains data for that quarter, as well as cumulative data for the year-to-date.

8. Each practical nursing program has a NCLEX-PN number that must be entered on the answer sheet of each student taking

   the examination. This allows the examination vendor to compile data for each practical nursing program.

9. The data made available to the Board in the reports issued by Council's examination vendor include the national average pass-rate for the examination; the total number of candidates from each practical nursing program in Florida taking the examination; and the scores for each candidate in each program. The NCLEX-PN vendor computes the pass-rate for the candidates nationally and for each practical nursing program in Florida by dividing the number of candidates passing the examination by the number of candidates taking the examination.

10. The Board relies on the information contained in the examination vendor's report as an accurate statement of the national average pass-rates for the NCLEX-PN and of the pass- rates for each of the practical nursing programs in Florida.

11. The NCLEX-PN data for Florida are posted on the Board's website, where they may be viewed and downloaded by schools offering practical nursing programs; a copy of the quarterly reports are also sent to all deans and directors of practical nursing programs with e-mail addresses on file with the Board. In 2005 and 2006, the times pertinent to this proceeding, HOTC did not access the NCLEX-PN data on the Board's website, and HOTC did not receive copies of any of the relevant NCLEX-PN reports from the Board.

12. Several of the Board's staff, including its Executive Director, Rick Garcia, conducted a site visit at HOTC on October 10, 2006, to evaluate HOTC's practical nursing program. One reason for the site visit was the staff's concern about the pass-rates of HOTC students on the NCLEX-PN.

13. Carol Johnson, the dean of HOTC and the administrator of its nursing program, was present for most of the site visit, which lasted between two and four hours.

14. The Board's staff requested during the site visit that HOTC provide five to seven representative student files, which were produced. Mr. Garcia reviewed two student files that caused him concern because the students had failed several courses but were allowed to take additional courses before being required to remediate and demonstrate mastery of the content of the failed courses. Mr. Garcia noted during the site visit that the documents in one student's file were not arranged sequentially, which caused him concern regarding consistency in file-keeping.4

15. The site-visit team prepared a Program Evaluation Site Visit Report which contained a statement of its findings and a list of four recommendations. The report was presented to the Board.

    Sufficiency of the evidence.

    
    

16. The Board failed to present any credible evidence to support its contention that the pass-rates of HOTC's graduates on the NCLEX-PN for 2005 and 2006 were more than 10 percentage points below the national average pass-rates for those years. First, the Board failed to present any credible evidence to establish the pass-rates for HOTC's graduates on the NCLEX-PN for 2005 and 2006. The only evidence presented was the testimony of Mr. Garcia, and this testimony was based on the information contained in the report of the October 10, 2006, site visit. That report included a table purporting to show the number of HOTC graduates who took the NCLEX-PN in 2005 and in 2006, through September 30, 2006; the number of HOTC graduates who passed the NCLEX-PN in 2005 and in 2006, through

    September 30, 2006; and the pass-rates of HOTC graduates in 2005 and in 2006, through September 30, 2006. Both Mr. Garcia's testimony regarding the pass-rates of HOTC's graduates and the numbers included in the site visit report are, however, hearsay5 and cannot form the basis for a finding of fact regarding the pass-rates of HOTC's graduates in 2005 and in 2006.6 Although Mr. Garcia testified that the numbers contained in the site visit report upon which he and the Board relied were drawn from the reports sent to the Board by the vendor that administered the NCLEX-PN, the Board did not offer into evidence a copy of

    the vendor's reports relating to the pass-rates of HOTC's graduates for the relevant time periods.7 Without these reports, the Board has failed to present evidence upon which a finding of fact can be made as to the pass-rates of HOTC's graduates for 2005 and 2006.

17. Second, the Board failed to present any credible evidence to establish the national average pass-rates for the NCLEX-PN for 2005 and 2006, the pass-rates against which HOTC's pass-rates would have been measured. Again, the only evidence presented by the Board regarding the NCLEX-PN national average pass-rates for 2005 and 2006 was Mr. Garcia's testimony, and this testimony was based on his recollection that the pass-rate was "generally . . . in the mid to high 80's" and on his reliance on the national average pass-rates included in the Board's answers to interrogatories propounded by HOTC.8

    Mr. Garcia's testimony regarding the national average pass-rates on the NCLEX-PN for 2005 and 2006 is hearsay, and the information regarding the national average pass-rates included in the interrogatory answer is not only hearsay,9 it is also of questionable validity because the interrogatories were not answered under oath as required by Florida Rule of Civil Procedure 1.340(a) and were signed only by counsel for the Board. Therefore, neither Mr. Garcia's testimony nor the information set forth in the interrogatory answer is sufficient

    to support a finding of fact as to the national NCLEX-PN pass- rates in 2005 and 2006.10 Mr. Garcia testified that the national average pass-rates for the NCLEX-PN for 2005 and 2006 were drawn from the reports sent to the Board by the vendor that administered the NCLEX-PN, but the Board did not offer into evidence a copy of the vendor's reports containing the national average pass-rates for the relevant time periods.11 Without these reports, the Board has failed to present evidence upon which a finding of fact can be made as to the national average pass-rates upon which the Board relied in reaching its preliminary decision to rescind its approval of HOTC's nursing program.12

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).

19. In accordance with the Board's concession that its decision to rescind its provisional approval of HOTC's practical nursing program is, in essence, a decision to revoke a license, the Board has the burden of proving the grounds for rescission set forth in the Notice of Intent to Rescind Program Approval by clear and convincing evidence. Department of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern &

    Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.

    
    

    2d 292 (Fla. 1987).

    
    

20. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), the court explained:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence 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 the firm belief of 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).

    
    

    Judge Sharp, in her dissenting opinion in Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed several pronouncements on clear and convincing evidence:

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the trier of

    fact a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

    
    

21. In its Notice of Intent to Rescind Program Approval, the Board charged that HOTC was not in compliance with the requirements of Section 464.019(6) and (7), Florida Statutes, and "Florida Administrative Code, 64B9-2.015(12) Program Evaluation; 64B9-2.015(1)(d) [and] (f) student admission records and class lists; 64B9-2.015(2)(b)2.(d) remediation of students allowed to progress not meeting institutional progression standards." As noted in endnote 2, the Board omitted reference to "Program Evaluation" and "student admission records and class lists" from the statement of the issues included in the Pre- Hearing Statement filed by the parties; furthermore, the Board did not address these two issues in its Recommended Order. It is presumed, therefore, for purposes of this Recommended Order, that the Board has abandoned Florida Administrative Code

    Rules 64B9-2.015(12) and 64B9-2.015(1)(d) and (f) as grounds for its preliminary decision to rescind approval of HOTC's practical nursing program.13

22. Section 464.019, Florida Statutes, provides in pertinent part:

    6) Any nursing program that maintains accreditation through a nursing accrediting body recognized by the United States Department of Education shall be exempt from

    the rules of the board except as provided in paragraph (2)(b), provided such exemption shall apply only to the extent the program maintains a student pass rate on the National Clinical Licensure Examination of not less than 10 percentage points below the national average pass rate as reported annually by the National Council of State Boards of Nursing.

    
    

    (7) If an institution's passing rate on the National Clinical Licensure Examination drops below the standard established in subsection (6) for 2 consecutive years, the program must be reviewed by the board. The board may take action to assist the program to return to compliance. Any program having its approval rescinded shall have the right to reapply.

    
    

23. Based on the findings of fact herein, the Board has failed to prove by clear and convincing evidence that the pass- rates of HOTC graduates taking the NCLEX-PN in 2005 and 2006 were more than 10 percentage points below the national average pass-rates reported by the Council. The Board, therefore, failed to prove that HOTC was not in compliance with

    Section 464.019(6 and (7), Florida Statutes.

    
    

24. The Board also charged that HOTC was not in compliance with Florida Administrative Code Rule 64B9-2.015(2)(b)2.(d). There is no such subsection of Rule 64B9-2.015, and the only portion of Rule 64B9-2.015 that deals with remedial assistance is subsection (2)(d), which provides:

    (2) Resources. The parent institution shall provide financial and administrative

    support and resources to the nursing program that includes:

    
    

    * * *

    
    

    (d) Counseling services and remedial assistance for students.

    
    

25. Based on the findings of fact herein, the Board has failed to prove by clear and convincing evidence that HOTC did not provide counseling and remedial services for its services. The evidence presented by the Board established only that

Mr. Garcia was concerned because HOTC allowed students who failed one or more courses in its practical nursing program to continue taking courses, with the understanding that the student would demonstrate mastery of all of the required courses prior to graduation from the program. The Board did not cite in the Notice of Intent to Rescind Program Approval or in its Proposed Recommended Order any statute or rule that requires HOTC to require its students to pass each course before being allowed to take another course in the program. Mr. Garcia's concern does not constitute a failure by HOTC to comply with Florida Administrative Code Rule 64B9-2.015(2)(d), and the Board, therefore, failed to prove that HOTC was not in compliance with

that rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding that Health Opportunity Technical Center, Inc., did not commit the violations alleged in the Notice of Intent to Rescind Program Approval dated May 10, 2007, issued to Health Opportunity Technical Center, Inc. and withdrawing the Notice of Intent to Rescind Program Approval.

DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 16th day of December, 2008.

ENDNOTES

1/ The style of the case has been amended pursuant to the discussion at the hearing regarding the nature of the Board's proposed action and the assignment of the burden of proof.

2/ In the Pre-hearing Stipulation filed by the parties, the Board further refined the factual issues in this case, stating its position that "HOTC's students were not meeting the required passing level on the national licensure examination, and HOTC was allowing students to progress through its program without mastery of content of the required coursework."

3/ All references herein to the Florida Statutes are to the 2007 edition unless indicated otherwise.

4/ During his testimony, Mr. Garcia also discussed his concern that the medication Solu-Medrol was stored in a cabinet to which students in the practical nursing program had access. According to Mr. Garcia, the Solu-Medrol was a medication that was outside the scope of practice for practical nurses. This item was not, however, identified in the Notice of Intent to Rescind Program Approval as a basis for the Board's decision.

5/ Hearsay is defined in Section 90.801(c), Florida Statutes, as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A "statement" includes a "written assertion," and a "declarant" is the "person who makes the statement." § 90.801(a) and (b), Fla. Stat. The person making the written statement setting forth the numbers and pass- rates included in the report of the site visit was the NCLEX-PN examination vendor who submitted the reports to the Board.

6/ See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.")

7/ Even though the vendor's reports, had the Board offered them into evidence, would have been hearsay as to the truth of the information contained in the reports, they would have been admissible to show that Board routinely relies on the information contained in the reports in making decisions involving the pass-rates of graduates of practical nursing programs in Florida.

8/ Transcript at page 27; HOTC Exhibit 8 at paragraph 2. It is noted that Mr. Garcia's claim that his memory was refreshed by reference to the interrogatory answer is not persuasive, given that it was clear from the circumstances that he relied on the interrogatory answer to respond to counsel's question regarding the average national pass-rates for 2005 and 2006.

9/ See endnote 5, above. 10/ See endnote 6, above. 11/ See endnote 7, above.

12/ Mr. Garcia testified that the national average pass-rates for the NCLEX-PN for 2005 and 2006 were read into the minutes of the April 2007 Board meeting. The Board did not offer the minutes of this meeting into evidence.

13/ It is also noted that the Board stated in the Notice of Intent to Rescind Program Approval that its authority to "refuse to certify an applicant for provisional approval, or impose conditions," derived from Sections 464.018(2) and 456.072(2), Florida Statutes. It is apparent from the provisions of these statutes that they deal with the licensure and discipline of nurses, in particular, and health care professionals, in general. These statutory provisions are, therefore, inapplicable to confer on the Board the authority to rescind approval for HOTC's practical nursing program. Nonetheless, the Board does have the authority to rescind approval for a nursing program pursuant to Section 464.019(4), Florida Statutes, when the program no longer meets the required standards for such programs. HOTC did not raise the issue of the source of the Board's statutory authority to issue the Notice of Intent to Rescind Program Approval, and it litigated the issue of HOTC's compliance with the standards applicable to practical nursing programs by acquiescence.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Gregory M. Ochalek, Esquire

90 Southwest 8th Street, Suite 211 Miami, Florida 33130

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Rick Garcia, MS,RN,CCM Executive Director Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701

Patricia Dittman, Ph.D (C),RN, CDE Department of Health

4052 Bald Cypress Way 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.

Docket for Case No: 07-003613

Orders for Case No: 07-003613