STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

vs. ) CASE NO. 89-3672

)

BEVERLY BURKE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 24, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Susan Loehn, Esquire

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Alan S. Glueck, Esquire

2331 North Street Road

Fort Lauderdale, Florida 33313 STATEMENT OF THE ISSUES

Whether Respondent committed the offenses set forth in the Administrative Complaint.

PRELIMINARY STATEMENT

This is a license discipline case in which Petitioner charged Respondent, a licensed Respiratory Therapist in the State of Florida, of procuring her licensure through fraudulent misrepresentation. Specifically, it was alleged that the graduate equivalency diploma (G.E.D.) Respondent submitted with her application for licensure was forged. Respondent admitted the underlying allegations of the Administrative Complaint. At the hearing, Respondent presented evidence that she contended was relevant to and in mitigation of the penalty to be imposed.

At the hearing, the parties introduced eight joint exhibits which were accepted into evidence. Respondent introduced two additional exhibits which were accepted into evidence and testified on her own behalf. No other witnesses were called by either party. The Prehearing Stipulation executed by the parties was accepted as a Hearing Officer's Exhibit.

A transcript of the proceedings has been filed. Rulings on the proposed findings of fact filed by Petitioner are contained in the appendix to this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, licensed by the State of Florida as a Respiratory Therapist, non-critical care status, having bean issued license number N000008.

   
   

2. On March 30, 1988, Respondent applied to Petitioner for licensure as a Respiratory Therapist, non-critical care status, under a special exemption for certification without examination. Respondent has not passed the licensing examination on any of the three occasions she has taken it.

   
   

3. Respondent submitted the required application to the Board of Medicine accompanied by a copy of a graduate equivalency diploma (G.E.D.) #293361 issued in the name of Beverly Burke".

   
   

4. On July 21, 1988, the Advisory Council on Regulatory Care approved Respondent's application for licensure as a Respiratory Therapist, non-critical care status.

   
   

5. On August 18, 1988, Respondent requested that the Board of Medicine upgrade her license from non-critical care status to critical care status. A critical care status position usually pays a higher salary and requires more skill than a non-critical care status position. Respondent submitted an application, accompanied by G.E.D. #293361 and other supporting documentation.

   
   

6. On September 23, 1988, the Florida Department of Education learned that

   G.E.D. #293361 was issued to Edwin G. Burke, Respondent's husband.

   
   

7. Respondent has neither a high School diploma nor a G.E.D. The document Respondent submitted with her application was her husband's G.E.D. which Respondent had falsified to make it appear that she met the statutory criteria for licensure.

   
   

8. Respondent has worked as a respiratory therapist since 1982. Since 1982, Respondent has, from time to time, attended Broward Community College on a part-time basis, in an attempt to combine an Associate of Arts degree with a

   G.E.D. As of the time of the hearing, Respondent had not achieved either degree, but she had resumed work toward her G.E.D.

   
   

9. On February 20, 1989, the Board of Medicine denied Respondent's application for licensure as a Respiratory Therapist, critical care status. Thereafter, this Administrative Complaint, seeking to discipline the licensure as a Respiratory Therapist, non-critical care status, was filed. Respondent timely filed a request for a formal administrative hearing.

   
   

10. There was no evidence that any complaints had been previously lodged against Respondent or that she had been previously disciplined by Petitioner.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.5 7(1), Florida Statutes.

    
    

12. Part V of Chapter 468, Florida Statutes, consisting of Sections 468.35

    - Section 468.369, Florida Statutes, is the Florida Respiratory Care Act. Section 468.351, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1)(a) The purpose in enacting this

    part is to provide for the certification and registration of persons who deliver respiratory care services and who meet certain requirements.

    (b) It is the finding of the Legislature that the delivery of respiratory care services by unskilled and incompetent persons presents a danger to the public health and safety. Because it is difficult for the public to make informed choices related to respiratory care services and since the consequences of wrong choices can seriously endanger public health and safety, it is the intent of the Legislature to prohibit the delivery of

    respiratory care services by persons who are determined to possess less than minimum competencies or who otherwise present a danger to the public.

    
    

13. Section 468.352, Florida Statutes, provides, in pertinent part, as follows:

    
    

    As used in this part, unless the context otherwise requires, the term:

    * * *

    (8) "Respiratory therapist" means any person registered pursuant to this part who is employed to deliver respiratory care services under the order of a physician licensed pursuant to chapter

    458 or chapter 459, and in accordance with protocols established by a hospital, other health care provider, or the board, and who functions in situations of unsupervised patient contact requiring individual judgment.

    
    

14. Along with other criteria, to be eligible for registration by the Board of Medicine as a respiratory therapist, an applicant must possess a high school diploma or a graduate equivalency diploma. Section 468.355(2)(b), Florida Statutes.

    
    

15. In this case, Respondent does not meet the statutory criteria for registration as a respiratory therapist.

16. Section 468.365, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       1. Procuring, attempting to procure, or renewing a certificate or

          registration as provided by this part by bribery, by fraudulent misrepresentation, or through an error of the department or the board.

          * * *

    2. if the department finds any person or firm guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       * * *

       (b) Revocation or suspension of certification or registration.

       
       

17. The Petitioner established that Respondent does not meet the statutory criteria for registration as a Respiratory Therapist and that the registration she presently holds was procured through the fraudulent misrepresentation as to her educational status.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Professional

Regulation, Board of Medicine, which finds Respondent guilty of having violated

Section 468.365(1)(a), Florida Statutes, which further finds that Respondent does not meet the statutory criteria for registration as a Respiratory Therapist, and which revokes the Respiratory Therapist registration of Beverly Burke.

DONE AND ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3672

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order.

2. The proposed findings of fact :n paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 3 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 4 of the Recommended Order, except that the date of the approval by the Advisory Council on Respiratory Care was July 21, 1988, not July 27, 1988.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 5 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached.

8. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached.

9. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached.

10. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 6 of the Recommended Order.

11. The proposed findings of fact in paragraph 11 are adopted in material pari~ by paragraph 8 of the Recommended Order.

12. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 8 of the Recommended Order.

13. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 7 of the Recommended Order.

14. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 2 of the Recommended Order.

15. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Susan Loehn, Esquire Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Alan S. Glueck, Esquire 2331 North State Road #7

Suite 106

Fort Lauderdale, Florida 33313

Beverly Burke

6940 N.W. 6th Court Plantation, Florida 33317

Dorothy Faircloth Executive Director Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Kenneth D. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-003672

Orders for Case No: 89-003672