STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Petitioner,

vs.

BRETT W. MAUCH, C.N.A.

Respondent.

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) Case No. 02-0678PL

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RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on March 28, 2002, in Sarasota, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michael T. Flury, Esquire

Practitioner Regulation-Allied Health Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: Brett W. Mauch, C.N.A., pro se

309A Shore Road Nokomis, Florida 34275

STATEMENT OF THE ISSUE

The issue presented is whether Respondent abused a resident of a nursing home in violation of Sections 456.072(1)(k), 400.022(1), and 825.102(1), Florida Statutes

(2001). (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)

PRELIMINARY STATEMENT

On November 2, 2001, Petitioner issued an emergency order suspending Respondent's license, and on November 26, 2001, Petitioner filed an Administrative Complaint against Respondent's license to practice as a certified nursing assistant (CNA). Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of six witnesses and submitted six exhibits for admission in evidence. Respondent testified in his own behalf, called another witness, and submitted one exhibit for admission in evidence.

The identity of the witnesses and exhibits, and any attendant rulings, are set forth in the Transcript of the hearing filed on April 17, 2002. Petitioner timely filed its Proposed Recommended Order ("PRO") on April 29, 2002.

Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of nursing pursuant to Chapters 20, 456, and 464. Respondent is licensed as a CNA in the state pursuant to license number 0992086466909.

2. Alterra HealthCare Residence (Alterra) is a nursing home in Sarasota, Florida, that provides 24-hour skilled nursing services for its residents. On September 1, 2001, Alterra employed Respondent, Ms. Deborah McNeely (McNeely), and Ms. Angela Perry (Perry) as CNAs.

3. Patient M.B. was a 74 year-old resident at Alterra.

   
   

   M.B. had Alzheimer's disease but was cognizant of her surroundings and had short-term memory.

4. On September 1, 2001, McNeely and Perry were cleaning a resident in a shower room of Alterra shortly before lunch. McNeely and Perry wheeled the resident out of the shower room when the CNAs finished cleaning the resident. No one else remained in the shower room.

5. Perry left the area outside of the shower room with the resident and wheeled the resident into the lunch room. McNeely remained in the area outside of the shower room.

6. Respondent wheeled M.B. into the shower room past McNeely. Respondent stated to McNeely that M.B. needed to be cleaned because M.B. had soiled herself during a bowel movement.

7. McNeely said she would return to help Respondent after McNeely disposed of the dirty linens belonging to the previous resident. McNeely walked across the hall to the

   linen room, disposed of the dirty linen, and returned to the shower room.

8. As McNeely approached the shower room, she heard Respondent telling the patient, "Stand up, goddamn it, stand up." Respondent spoke in an angry, harsh tone, and very loudly. McNeely opened the door to the shower room, heard a noise, and heard patient M.B. say, "Ow. That hurt."

9. When McNeely entered the shower room, Respondent had his right arm under M.B.'s right armpit, jerking M.B. out of her wheel chair. Respondent said to M.B., "Goddamn it. Stand up. Fucking stand up." Respondent jerked M.B. out of her wheel chair. M.B. struck her head against the wall of the shower room.

10. McNeely went over to M.B., cleaned the resident, and put a clean diaper on her. Respondent then wheeled M.B. out of the shower room.

11. McNeely reported the incident to Perry and Ms.

    
    

    Shelly Bruggeman (Bruggeman), the charge nurse. Bruggeman examined M.B. M.B. had a red bump or raised area on her forehead that was about the size of a dime. M.B. told Bruggeman, "He hit my head, and he was a'cussin'."

12. Bruggeman directed McNeely to report the incident to Ms. Darlin Groom (Groom), the weekend supervisor. Groom

    reported the incident to Ms. Deborah Atwell (Atwell), the Director of Nursing. Atwell was not at Alterra at the time.

13. Atwell instructed Groom to tell Respondent to go home pending an investigation. Groom complied with Atwell's instructions, and Respondent left the facility.

14. Groom examined M.B. M.B. had a red bump on her forehead. M.B. stated that "he" had hurt her.

15. Appropriate personnel conducted an investigation of the incident for Alterra. On September 4, 2001, Mr. Sam Ware, the nursing home administrator, conducted a meeting with Atwell and Respondent. Respondent admitted cursing in front of M.B. and stated that he may have cursed at M.B. Alterra terminated Respondent's employment.

16. Respondent has no adverse disciplinary history.

    
    

    Respondent was an exemplary employee for Alterra, and his actions on September 1, 2001, represent a single, isolated incident that is inconsistent with his previous employment license history.

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the subject matter and the parties in this proceeding. Section 120.57(1). DOAH provided the parties with adequate notice of the administrative hearing.

18. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Section 456.072(1)(k) provides that Petitioner may discipline Respondent's license for failing to perform any statutory or legal obligation placed upon Respondent. Sections 400.022(1)(n) and (o) and 825.102(1) place a statutory duty on Respondent to refrain from verbally, physically, or mentally abusing an elderly resident. Petitioner showed by clear and convincing evidence that Respondent violated Sections 456.072(1)(k), 400.022(1)(n) and (o), and 825.102(1).

20. Section 464.204(2) sets forth the disciplinary penalties that may be applied to the facts in this case. Those penalties include suspension, imposition of a fine, probation, and retraining.

21. Petitioner seeks to have Respondent's license suspended for one year. Although suspension is appropriate because of the harm to the resident, Petitioner failed to show by clear and convincing evidence that suspension for one year is reasonable. Respondent has no previous disciplinary

    history. Rather, Respondent has an exemplary history except for the single, isolated incident that is the subject of this proceeding.

22. Florida Administrative Code Rule 64B9-8.006(4) provides that Petitioner may deviate from its disciplinary guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence. The only aggravating factor in this case, within the meaning of Rule 64B9-8.006(4)(b), is the harm to the resident. That harm, however, was not severe, did not require treatment, and was not permanent. Mitigating factors include Respondent's exemplary employment and license history.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Sections 456.072(1)(k), 400.022(1), and 825.102(1), suspending Respondent's license for a period of six months from November 2, 2001, imposing an administrative fine of $150, requiring Respondent to pay the costs incurred by Petitioner to investigate and prosecute this matter, and requiring Respondent to complete the minimum number of hours in continuing education classes for Proper Care and Handling of Elderly Patients and Anger Management.

DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL MANRY

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 24th day of May, 2002.

COPIES FURNISHED:

Michael T. Flury, Esquire Practitioner Regulation-Allied Health Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39

Tallahassee, Florida 32308

Brett W. Mauch, C.N.A. 309A Shore Road Nokomis, Florida 34275

Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, 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: 02-000678PL

Orders for Case No: 02-000678PL