STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHLEEN M. KEENAN PELLETIER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-5059

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on September 29, 1987, in Lakeland, Florida before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Kathleen M. Keenan Pelletier

(on her own behalf)

525 Lake Dexter Boulevard Winter Haven, Florida 33880

For Respondent: Susan Tully Proctor, Esquire

(Counsel to the Board of Nursing) Suite 1601, The Capitol Tallahassee, Florida 32399-1050

Background and Procedural Matters

By letter dated August 21, 1986, Petitioner, Ms. Pelletier, was informed that the Board of Nursing intended to deny her application for licensure as a Licensed Practical Nurse by endorsement. Basis for the decision was the Board's determination that her professional education was not at least equivalent to practical nursing programs in Florida.

Ms. Pelletier responded with a timely request for hearing. The hearing was scheduled for March 10, 1987, but was continued, by mutual agreement of the parties, because of the Board's desire to reconsider the application under changes in the law which took effect after the initial decision to deny.

When the parties failed to file a status report, as ordered, the case was closed on June 1, 1987. The file was reopened upon the parties' request, after the Board again voted to deny Ms. Pelletier's application, based on a failure to meet any of the three alternatives for licensure by endorsement available pursuant to section 464.009 F.S. (1986).

At the hearing, Ms. Pelletier testified and presented no documentary evidence. Her entire application file, however, was admitted by stipulation.

The Board of Nursing presented one witness, Carolyn Bergeron, a nursing education consultant for the Board of Nursing. In addition to the application file, five exhibits were admitted without objection.

After the preparation of a hearing transcript, Ms. Pelletier submitted a written closing argument; the Board of Nursing provided a proposed recommended order. The findings of fact proposed by the Board have been substantially adopted herein.

ISSUE

The issue for determination is whether Ms. Pelletier is eligible for licensure as an LPN by endorsement, based on any one of the following:

1. Holds a valid LPN license from another state, provided that the requirements for licensure were substantially equivalent to or more stringent than those existing in Florida at that time;

2. Holds a valid LPN license from another state, provided that the current requirements for licensure in that state are substantially equivalent to or more stringent than those currently required in Florida; or

3. Meets the current requirements for examination in Florida and has successfully completed the NCLEX examination or its equivalent. The relevant requirement for examination, found in Section 464.008(1)(b) F.S., is the graduation from an approved educational program or the successful completion of courses in a professional nursing program which are at least equivalent to a practical nursing program.

FINDINGS OF FACT

1. Kathleen M. Keenan Pelletier currently resides in Winter Haven, Florida and is working as a medical secretary at the Winter Haven Hospital.

   
   

2. In April 1986, while living in Massachusetts, Ms. Pelletier applied for licensure by endorsement as an LPN in the State of Florida. A routine temporary license was granted for the period April 28, 1986 to May 28, 1986. An application for an extension to that temporary license was denied in June 1986, based on the Board's need to review Ms. Pelletier's nursing courses. The Board subsequently reviewed Ms. Pelletier's application for licensure on two occasions and denied the application, as described in the Background, above.

   
   

3. Ms. Pelletier received a baccalaureate degree from D'Youville College in Buffalo, New York, in theatre and communications in 1972.

4. While at D'Youville, Ms. Pelletier completed certain relevant courses in the School of Nursing. Those include the following:

   
   

   PSY	101A	Gen. Psych.	3	credit	hours
   BIO	106	Microbiology	4	credit	hours
   PSY	203A	Devel. Psych.	3	credit	hours
   NUR	201A	Nursing I	3	credit	hours
   BIO	204B	Hum. Anat. & Psys.	8	credit	hours
   NUR	202A	Nursing I	3	credit	hours
   NRS	3012	Nursing II	9	credit	hours
   NRS	301A	Nursing II	4	credit	hours
   		Clinical Experience

   
   

   She also took two additional nursing courses, but withdrew before taking the exam. Her transcript assigns a grade of "W", and awards no credit hours for those courses. The designation, "W", means "withdrawal without penalty". It is distinguished from an "I", which denotes an "incomplete" grade, or "WF", which means "withdrawal failure".

   
   

   The two courses for which she received a "W" were continuation courses in Nursing II:

   
   

   NRU 3022 Nursing II

   NUR 302A2 Nursing II Clinical Experience

   
   

5. The record in this proceeding fails to reveal course descriptions for the above courses. Respondent's Exhibit #4 is a cover letter from D'Youville College and brief descriptions of courses from the 300-400 levels. The description of course 302A, Nursing II, states only that its prerequisite is Nursing II-301 and 301A. The course content is not described. Course content descriptions are also not included in the application file, Respondent's Exhibit #1. That file reveals, however, that the Board determined that Ms. Pelletier lacked coursework in basic medical nursing and surgical nursing.

   
   

6. Ms. Pelletier currently holds New York State license number 095229 for the practice of licensed practical nursing. She was issued that license on April 12, 1973. Since that time she has worked as a practical nurse in New York and in Massachusetts.

   
   

7. In the record of this proceeding there is no competent evidence of the requirements for LPN licensure in the State of New York at the time that Ms. Pelletier was licensed by that state. New York currently does not specify course content, but only the number of credit hours required for practical nursing education for licensure. Florida, in the past and currently, specifies the curriculum for practical nursing training programs. See Rule 210- 8.021(1)(c) F.A.C.. For that reason, the current requirements for licensure in New York are not substantially equivalent to or more stringent than those for licensure in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case pursuant to Section 120.57(1) F.S. and Section 120.60 F.S..

   
   

9. As applicant, the Petitioner has the burden of proving her entitlement to the license she is seeking.

10. Section 464.009, F.S. provides in pertinent part:

    
    

    1. Licensure by endorsement.--

       1. The department shall issue the appropriate license by endorsement to practice professional or practical nursing to an applicant who, upon applying to the department and remitting a fee set by the board not to exceed $100, demonstrates to the board that he:

          1. Holds a valid license to practice professional or practical nursing in another state of the United States provided that, when the applicant secured his original license, the requirements for licensure were substantially equivalent to or more stringent that those existing in Florida at that time or that the current requirements for licensure in the applicant's state of original licensure are substantially equivalent to or more stringent than those currently required in this state; or

          2. Meets the qualifications for licensure in s. 464.008 and has successfully completed a state, regional, or national examination which is substantially equivalent to or more stringent than the examination given by the department.

       2. Such examinations and requirements from other states shall be presumed to be substantially equivalent or more stringent than those in this state. Such presumption shall not arise until January 1, 1980. However, the board may, by rule, specify states the examinations and requirements of which shall not be presumed to be substantially equivalent to those of this state

    (emphasis added)

    * * *

    
    

11. The Board, by rule has specified that no presumption of equivalency shall apply for any state. Rule 210-8.026(2), F.S.. This rule was in effect at the time that Ms. Pelletier applied in April 1986, as well as currently.

    
    

12. The provision of subsections 464.009(1)(a), F.S. relating to current requirements for licensure was added by an amendment effective October 1, 1986. Prior to that date, an applicant had only the option of showing equivalency as of the date that the other state's license was issued.

13. The applicable portions of Section 464.008(1)(b), F.S. provide:

    
    

    1. Licensure by examination.--

       1. Any person desiring to be licensed as a registered nurse or licensed practical nurse shall apply to the department to take the licensure examination. The department shall examine each applicant who:

    * * *

    (b) Is in good mental and physical health, is a recipient of a high school diploma or the equivalent, and has completed the requirements for graduation from an approved program for the preparation of registered nurses or licensed practical nurses, whichever is applicable. Courses successfully completed in a professional nursing program which

    are at least equivalent to a practical nursing program may be used to satisfy the education requirements for licensure as a licensed practical nurse.

    (emphasis added)

    * * *

    
    

14. Ms. Pelletier argues that she meets all three requirements for licensure by endorsement because a previous Board counsel told her that she would advise the Board that New York's current requirements were substantially equivalent. She claims further that she "successfully completed" even those courses for which she received a "W" and that the number of nursing credit hours she completed exceeds those required for LPNs in approved programs in Florida.

    
    

15. The Board's position is that neither the current New York requirements nor the requirements at the time Ms. Pelletier received her New York license are equivalent to Florida requirements for the same periods.

    
    

16. The Board also contends that the courses Ms. Pelletier completed at D'Youville do not correspond to the courses prescribed for practical nursing programs and that the courses for which she received a "W" were not "successfully completed".

    
    

17. Rule 210-7.025(3) FAC describes the curriculum for LPN education as follows:

    
    

    1. Specific Requirements for Practical Nursing Programs.

       The curriculum shall include:

       1. theoretical instruction and clinical experience in medical, surgical, obstetric, pediatric, and geriatric nursing.

       2. theoretical instruction and clinical experience in both acute and long term care situations.

       3. theoretical instruction and clinical application of vocational role

          and function, personal, family and community health concepts, nutrition, human growth and development over the lifespan, body structure and function, interpersonal relationship skills, mental health concepts, pharmacology and administration of medications, legal aspects of practice and current issues in nursing.

       4. clinical experiences of at least

          50 percent of the total program.

    2. Permission of the Board must be obtained before implementation of any of these changes:

       1. Number of credits or clock hours of theoretical or clinical instruction.

       2. Sequence of courses in the program.

       3. Number of courses included in the program.

       4. Major revision of the program curriculum.

    
    

18. Without a course description of the courses which Ms. Pelletier took at D'Youville (see Finding of Fact #4, above), it is impossible to determine whether she has met the requirements of Section 464.008(1)(b) F.S., as incorporated in Section 464.009(1)(b) F.S. The equivalency of the examination is not at issue.

    
    

19. The courses for which she received a "W" were not "successfully completed". She never took the exams for the courses nor did she receive credit on her transcript for those courses. While she did not "fail" the courses and did not receive an "incomplete", the success of her completion is still in limbo, without a final grade and without an acknowledgment of the credit hours earned for those courses.

    
    

20. The Board has established by rule a procedure for the application of Section 464.009(1)(a) F.S.. The rule provides in pertinent part:

    
    

    210-8.026 Licensure by Endorsement

    * * *

    1. To apply for endorsement pursuant to Section 464.009(1(a), F.S., an applicant shall be required to show that he is licensed in another state of the United States and to show what requirements were met at the time the license was issued. The board will then determine in the following manner whether such requirements were equal to or more stringent than those imposed by Florida at that time:

       1. The Board will compare the requirements imposed upon and met by the applicant in the original state of licensure with the relevant statutes and rules governing licensure of nurses in

          effect in Florida at the time of such original licensure.

       2. A determination will then be made whether the applicant would have met the requirements for licensure to practice in Florida if the applicant had applied for licensure in Florida at the time of his licensure in the original state of licensure. If the applicant would not have qualified to practice in this state at that time, the application for licensure by endorsement shall be denied.

    * * *

    
    

21. Without evidence of the New York licensure requirements met by Ms. Pelletier in 1973, it is impossible to determine that those requirements are equal to or more stringent than Florida's requirements in 1973.

    
    

22. As addressed in Finding of Fact #7, above, the current New York standards are not equal to nor more stringent than Florida's current standards.

    
    

23. Ms. Pelletier has, therefore, failed to prove her entitlement to licensure by endorsement pursuant to Section 464.009(1)(a) F.S. (1986).

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That Kathleen M. Keenan Pelletier's application for licensure by endorsement as a practical nurse in Florida be DENIED, without prejudice to her right to file an amended application with evidence that the courses she successfully completed at D'Youville meet the curriculum standards in Rule 210- 7.025(3) F.A.C., or with evidence that the standards for met for licensure in the State of New York in 1973 are equal to or more stringent than Florida's 1973 standards.

DONE and RECOMMENDED this 20th day of November, 1987 in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1987.

COPIES FURNISHED:

Kathleen M. Keenan Pelletier

525 Lake Dexter Boulevard Winter Haven, Florida 33880

Susan Tully Proctor, Esquire Counsel to the Board of Nursing Suite 1601, The Capitol Tallahassee, Florida 32399-1050

Judie Ritter, Executive Director Board of Nursing

Department of Professional Regulation

Room 504, 111 East Coastline Drive

Jacksonville, Florida 32201

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-005059

Orders for Case No: 86-005059