STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-8047

)

MICHAEL BLANKENSHIP, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on April 18, 1991, in Orlando, Florida, before Joyous D. Parrish, a designated hearing officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Tracey S. Hartman

Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: C. Michael Magruder

The Monument Building

22 W. Monument Avenue Kissimmee, Florida 34741

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on April 17, 1990, when the Department of Professional Regulation (Department) filed an administrative complaint against the Respondent, Michael Blankenship, and alleged violations of Chapter 464, Florida Statutes. That complaint alleged the Respondent had violated Section 464.018(1)(f), Florida Statutes, by knowingly violating a lawful order of the board previously entered in a disciplinary proceeding; had violated Section 464.018(1)(f), Florida Statutes, by making or filing a false report or record, which the licensee knows to be false; and had violated Section 464.018(1)(h), Florida Statutes, by having unprofessional conduct. Respondent disputed the

allegations and requested a formal hearing in connection with the matter. The case was forwarded to the Division of Administrative Hearings for formal proceedings on December 20, 1990.

At the hearing, the parties stipulated to factual matters and exhibits to be received in this cause. Thereafter, the transcript of the proceedings was filed on day 2, 1991. The parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact submitted by the parties are included in the attached appendix.

FINDINGS OF FACT

Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made:

1. The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida.

   
   

2. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071.

   
   

3. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years.

   
   

4. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic.

   
   

5. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida.

   
   

6. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse.

   
   

7. The administration of narcotics described above were performed during Respondent's first year of probation.

   
   

8. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics.

   
   

9. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics.

   
   

10. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change.

    
    

11. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989.

    
    

12. Such notification was not made within ten days of the change in employment.

13. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change.

    
    

14. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no".

    
    

15. Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no".

    
    

16. On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care.

    
    

17. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 464.018(1), Florida Statutes, provides, in pertinent part:

    
    

    The following acts shall be grounds for disciplinary action set forth in this section:

    * * *

    (f) 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.

    * * *

    1. 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.

       * * *

       1. Knowingly violating any provision of this chapter, a rule of the board or the department, or a lawful order of the board or department previously entered in a disciplinary proceeding or failing to comply with a lawfully issued subpoena of the department.

20. In this case the Department has established by clear and convincing evidence that the Respondent violated a prior order of the Board. The terms of Respondent's probation required that he notify the Board within ten days of changes in his telephone number and/or employment. In at least two instances Respondent failed to comply with that condition of his probation

    
    

21. Additionally, the Department has established that Respondent administered narcotics without being directly supervised by a registered nurse. Again, Respondent failed to comply with a specific condition of his probation.

    
    

22. Respondent failed to disclose his probationary status and the relevant restriction regarding narcotics to ORMC personnel. Had he done so, Respondent would not have been approved for employment at that facility based upon its policy of not using agency staffed nurses with restrictions on their licenses.

    
    

23. It is concluded that Respondent's acts and omissions were intended to circumvent the terms and conditions of his probation and that he knowingly violated a prior order of the Board.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years.

DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.

APPENDIX CASE NO. 90-8047

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 and 2 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

Respondent's findings of fact begin with the paragraph numbered 9

1. Paragraph 9 is accepted.

   
   

2. Paragraph 10 is accepted.

   
   

3. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence.

   
   

4. Paragraph 12 is accepted.

   
   

5. Paragraph 13 is rejected as comment, argument, or irrelevant.

COPIES FURNISHED:

Tracey S. Hartman Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

C. Michael Magruder The Monument Building

22 W. Monument Avenue Kissimmee, Florida 34741

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Judie Ritter Executive Director

504 Daniel Building

111 East Coastline Drive Jacksonville, Florida 32202

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 days 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: 90-008047

Orders for Case No: 90-008047