STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5332

)

)

CARMALITA THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 23, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Tracey S. Hartman, Esquire

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Carmalita Thomas, pro se

11920 N.W. 20th Street Pembroke Pines, Florida 33026

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated October 31, 1989, petitioner charged that respondent, a registered nurse, had, while employed by Hi-Tech Medical Services, Inc., violated the provisions of Section 464.018(1)(d) and 464.018(1)(f), Florida Statutes, by submitting duplicate billings for nursing services rendered to home health patients; by submitting nurse's notes reflecting services provided by respondent during visits which were not actually made by respondent, for the purposes of receiving dual and/or over compensation; and, by submitting billings for visits made to home health patients, without the corresponding nurse's notes to verify her visits as was required by Hi-Tech Medical Services, Inc.

Respondent filed an election of rights which disputed the allegations of fact contained in the administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses: Sondra Raphael, Holly Bedgio, Karen Bine, Katrina Donaldson, Lauri Metzel, Jodi Webster, William Swan, and Douglas Clay. Petitioner's exhibits 1-13, 16 and 17 were received into evidence. Respondent testified on her own behalf, but offered no exhibits.

The transcript of hearing was not ordered, so the parties were granted leave until February 4, 1991, to file proposed findings of fact. Petitioner elected to file proposed findings, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Carmalita Thomas, was licensed as a registered nurse in the State of Florida, license number RN 1329552.

   
   

2. From November 11, 1987, to September 1988, respondent was employed as an independent contractor by Hi-Tech Medical Services, Inc., (the Agency), a comprehensive health maintenance organization. Pursuant to the terms of her employment, respondent was responsible for the Agency's pediatric program, and was to provide skilled nursing visits in homes where ill or disabled persons were receiving care from the Agency. Regarding compensation, their agreement provided:

   
   

   The Contractor will be paid for Agency authorized visits.

   The Agency will not pay nor be responsible for visits rendered or expense incurred due to the Contractor's execution of unauthorized visits.

   The Agency will pay the Contractor 30 days after receipt of a statement reflecting number of authorized visits rendered during the previous period at the prevailing rate of 22/27 per visit.

   The Contractor will prepare and submit a written clinical report for each visit in keeping with Agency policy and requirements.

   
   

   The Agency's written policy regarding the preparation and submittal of written clinical reports required, for verification of visits and billing purposes, that respondent, for each visit, prepare and sign a written nurses progress report.

   Respondent was aware of this policy, but did not consistently present such reports with her billing form by which she received her compensation.

   Notwithstanding such failures the Agency routinely paid respondent upon presentation of her billing form.

   
   

3. During the period of May 23, 1988, through June 17, 1988, respondent prepared and signed four progress notes reflecting nursing care rendered to pediatric patient Jessica Metzel, and submitted a billing form to the Agency for payment at $27.00 per visit. Respondent was compensated by the Agency, who in turn billed the patient's insurance carrier for the services.

4. While requesting and receiving payment for four visits, the proof demonstrates that respondent was only at the Metzel residence on two occasions. The first occasion was to have Jessica's father sign some paper work, and the occasion was to insure that the family was satisfied with the respiratory therapist that was treating Jessica. At no time did respondent examine or otherwise treat Jessica, and the progress notes prepared by respondent were a fabrication.

   
   

5. Respondent also submitted billing forms to the Agency on at least two occasions, which resulted in her being compensated twice for the same working hours. More particularly, respondent billed the agency in December 1987, and was paid, for having worked from 10 a.m. to 1 p.m. (3 hours) on December 21, 1987, and from 10 a.m. to 3 p.m. (4 1/2 hours) on December 24, 1987. Thereafter, by separate billing, she also billed the Agency, and was paid, for services purportedly rendered from 9:30 a.m. to 1:00 p.m. (3 1/2 hours) on December 21, 1987, and from 10:30 a.m. to 2:00 p.m. (3 1/2 hours) on December 24, 1987.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Pertinent to this case, Section 464.018(1), Florida Statutes (1987), provides: 1/

   
   

   (d) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

   (f) Unprofessional 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.

   
   

   And, Rule 21O-10.005(1), Florida Administrative Code, provides that the Board of Nursing may impose disciplinary penalties upon a determination that a licensee:

   
   

   (e) Is guilty of unprofessional conduct which shall include, but not be limited to:

   1. Inaccurate recording, falsifying or altering of patient records....

   
   

8. Here, the proof is clear and convincing that the nursing notes respondent prepared on Jessica Metzel, and signed in her capacity as a licensed nurse, were false, and known to be false at the time. As such, petitioner has demonstrated that respondent violated the provisions of Section 474.018(1)(d) and (f), Florida Statutes (1987).

9. With regard to respondent's false billing statements to the Agency, as well as her failure to submit nurses progress notes to support her billing, it cannot be concluded that such conduct violated the foregoing provisions of law. While respondent's billing statement were shown to be inaccurate on two occasions, such statements were not shown to constitute patient records. As to respondent's failure to prepare nurses progress notes, such reports were not shown to be required by state or federal law, and such failure was not shown to be a departure from, or a failure to conform to, the minimal standards of acceptable and prevailing nursing practice. 2/

   
   

10. Where, as here, a licensee has been found to have violated Chapter 464, Florida Statutes, the Board of Nursing has established a range of disciplinary guidelines from which penalties are imposed. Rule 21O-10.011, Florida Administrative Code. Applying such guidelines to the facts of this case derives the penalty hereinafter recommended for respondent's violation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of having violated the

provisions of Section 464.018(1)(d) and (f), Florida Statutes, as heretofore found in the conclusions of law, and that respondent's license be suspended for

90 days, followed by a two (2) year term of probation upon such terms and conditions as the Board of Nursing deems appropriate.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1991.

WILLIAM J. KENDRICK

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 25th day of February 1991.

ENDNOTES

1/ These provisions were effective during all times material hereto. They are now codified at Section 464.018(1)(f) and (h), Florida Statutes (1989).

2/ In this case the petitioner offered no witness as an expert, and elicited no opinion testimony as to whether any respondent's conduct fell below minimum standards. Accordingly, while respondent's failure to file her progress notes with her employer may have violated that Agency's policies, and her billings may have been false, it cannot be concluded that such failure constitutes unprofessional conduct.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2-4. Addressed in paragraph 2.

5-6. Rejected as not supported by competent proof. The only proof of record regarding such assertion is hearsay.

7-10. Addressed in paragraphs 3 and 4.

11-13. Rejected as not shown to be relevant or material. First, an examination of Petitioner's Exhibit 11 fails to demonstrate that the nursing notes referenced in paragraphs 11 and 12 are identical in all respects. Second, based simply on such records, there being no other proof, it is not reasonable to conclude that the respondent did not render such services.

14-17. Addressed in paragraph 5.

18-20. To the extent pertinent, addressed in paragraph 2.

21. Rejected as not charged in the administrative complaint and therefore not relevant.

COPIES FURNISHED:

Tracey S. Hartman, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Carmalita Thomas, pro se 11920 N.W. 20th Street Pembroke Pines, Florida 33026

Judie Ritter Executive Director Board of Nursing

Department of Professional Regulation

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

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 dads in which to submit written exceptions. Some agencies allow a larger period 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.

Docket for Case No: 90-005332

Orders for Case No: 90-005332