STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 99-2332

) REGINA JOAN HOLMES HOOVER, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on September 22, 1999, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Levy Courthouse,

355 Court Street, Bronson, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Howard M. Bernstein, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Regina Joan Holmes Hoover, pro se

Post Office Box 816

Old Town, Florida 32680 STATEMENT OF THE ISSUE

Should Petitioner discipline Respondent's practical nurse's license for unprofessional conduct, as alleged in the Administrative Complaint, Case No. 97-17541?

PRELIMINARY STATEMENT

Through the administrative complaint Petitioner accused Respondent of unprofessional conduct in maintaining patient progress notes. See Section 464.018(1)(h), Florida Statutes, and Rule 64B9-8005(1)(e)1, Florida Administrative Code. Respondent disputed the factual allegations in the administrative complaint and requested a formal hearing pursuant Sections 120.569 and 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing. The hearing ensued.

At hearing P.L., the mother of the minor patient in question, and Kerry Judy testified as Petitioner's witnesses. Petitioner's Exhibits numbered 1 and 2 were admitted. Respondent testified in her defense. Kerry Judy was called as a rebuttal witness.

A hearing transcript was prepared. That transcript was filed with the Division of Administrative Hearings on October 5, 1999. The parties failed to timely avail themselves of the opportunity to submit proposed findings of fact and orders. See Section 120.57(1)(b), Florida Statutes, and Rule 28-106.215, Florida Administrative Code. Therefore, the proposed recommended order submitted by Petitioner's counsel on November 1, 1999, has not been considered.

FINDINGS OF FACT

1. At all times relevant to the inquiry Respondent was licensed by the State of Florida, Department of Health, Board of Nursing as a licensed practical nurse, license no. 0883171 in active capacity.

2. At all times relevant to the inquiry Petitioner was charged with regulation of Respondent's nursing practice in accordance with Chapters 20, 455, and 464, Florida Statutes.

3. At all times relevant to the inquiry Respondent worked for Nurse Finders, Inc. (Nurse Finders) as a licensed practical nurse.

4. As a nurse practitioner employed by Nurse Finders, Respondent maintained progress notes related to the care provided to her patients. This information was recorded on a form provided to by Nurse Finders and referred to as a skilled progress note. In addition to the expectation that Respondent as a nurse practitioner would understand the proper use of progress notes for patients, Nurse Finders provided orientation to Respondent concerning the use of its skilled progress note.

5. Nurse Finders provided patient care in the homes of its patients. As an employee of Nurse Finders, Respondent was engaged in providing home care to patients. Under these arrangements, a copy of the patient progress notes was maintained in the patient's home. Respondent was expected to properly

   document activity associated with patient care in the progress notes kept in the patient's home.

6. Relevant to the inquiry, Respondent was providing home care to the minor child of P.L. in August 1997. The child was handicapped and had a tracheotomy for breathing and a feeding tube, in addition to a monitor to alert her care givers if she stopped breathing at night.

7. Respondent cared for the child on August 26, 28, and 29, 1997. Following a reminder to prepare progress notes, Respondent submitted illegible progress notes dated August 27, 29, and 30, 1997. Respondent then substituted a new set of progress notes dating them August 26, 29, and 30, 1997. In addition to the problem with the dates for the progress notes, the vital signs recorded for the second and third dates in the two sets of progress notes do not coincide. Finally, the initial set of progress notes makes no reference to Respondent's notification of her supervisor, Kerry Judy, R.N., concerning the patient's condition, whereas the second set of progress notes associated with Respondent's August 30, 1997 dates, incorrectly mentioned communication with the supervisor.

8. Respondent's explanations concerning the discrepancies are not credited.

9. As established in the opinion testimony of Ms. Judy, it is expected that Respondent as a nurse practitioner would

   accurately reflect the care the patient received through entries in the progress notes.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

11. Through the administrative complaint Petitioner intends to discipline Respondent in that:

    1. Following the submission of the second set of Program Notes, the following discrepancies were identified between the first and second set of notes:

       
       

       1. the dates that care was provided do not match,

       2. the patient's vital signs do not match, and

       3. Respondent documented that she spoke with her supervisor regarding the patient's condition in the second set of notes; Respondent's supervisor denies this conversation took place.

       
       

    2. The aforementioned discrepancies provide uncertainty as to the accuracy of the documentation.

       
       

12. Further, Petitioner alleges that Respondent's failure to accurately maintain the documentation in the progress notes constitutes unprofessional conduct as defined at Section 464.018(1)(h), Florida Statutes, and under Rule 64B9- 8.005(1)(e)1, Florida Administrative Code.

13. Petitioner must prove its allegations by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Clear and convincing evidence was presented concerning the inconsistencies in the documentation of patient care which constituted unprofessional conduct, even in the absence of any showing of injury to the patient. The inconsistencies in the progress notes lead to uncertainty as to their accuracy. The discrepancies make the progress notes unreliable as a means to measure patient care in relation to the patient's condition. This performance is beneath the conduct expected of a nurse practitioner.

15. For violating the provisions of Section 464.018(1)(h), Florida Statutes, Respondent is subject to the discipline provided in Section 464.018(2), Florida Statutes.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Section 464.018(1)(h), Florida Statutes, and imposing a $500.00 fine, and a period of probation for one year, subject to such conditions as the Board of Nursing deems appropriate to improve Respondent's performance.

DONE AND ENTERED this 4th day of November, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 4th day of November, 1999.

COPIES FURNISHED:

Howard M. Bernstein, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Regina Joan Holmes Hoover Post Office Box 816

Old Town, Florida 32680

Ruth Stiehl, Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast, Bin A02 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: 99-002332

Orders for Case No: 99-002332