STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )
)
Petitioner, )
)
vs. )
)
PENELOPE DIANE LANKHEIM, )
)
Respondent. )
Case No. 03-0375PL
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted on May 5 and 6, 2003, at Fort Lauderdale, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Amy M. Pietrodangelo, Esquire
John D. Lacko, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Penelope Diane Lankheim, pro se1
160 Northeast 25th Court Pompano Beach, Florida 33064
STATEMENT OF THE ISSUES
Whether Respondent, a registered nurse, committed the acts alleged in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.
PRELIMINARY STATEMENT
On January 9, 2002, Petitioner filed an Administrative Complaint against Respondent that was subsequently referred to the Division of Administrative Hearings (DOAH). Thereafter, the then presiding Administrative Law Judge (ALJ), granted the parties' motion to relinquish jurisdiction of the proceeding back to Petitioner without prejudice to the right of either party to move to reopen DOAH's file should the matter fail to settle. On February 16, 2003, the ALJ granted Petitioner's motion to reinstate DOAH's jurisdiction of the matter and assigned DOAH Case No. 03-0375PL to the file. On April 16, 2003, the ALJ granted Petitioner's motion for authorization to file its Second Amended Administrative Complaint (SAAC) and amended the Notice of Hearing to clarify the issues that would be heard at the final hearing.
The SAAC alleged certain facts pertaining to Respondent's enrollment in the Advanced Registered Nurse Practitioner (ARNP) program at Florida Atlantic University (FAU) and her subsequent dismissal from that program. The SAAC alleged that after Respondent was dismissed from the ARNP program, she made untrue, deceptive, or fraudulent misrepresentations to Dr. Steven Morris (Dr. Morris), a practicing physician, as to her status as a student in FAU's ARNP program, which caused Dr. Morris to agree to act as Respondent's preceptor and enabled Respondent to
practice beyond the scope of her licensure as a registered nurse. The SAAC also alleged that Respondent provided FAU with confidential medical records without authorization. Based on the factual allegations, Count I of the SAAC alleged that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes, by engaging in the following unprofessional conduct: providing FAU with confidential patient records; deceiving Dr. Morris by holding herself out as a student at FAU; and practicing as an unlicensed advanced registered nurse practitioner. Count II of the SAAC alleged that Respondent violated the provisions of Section 456.072(1)(m), Florida Statutes, by making untrue, deceptive, and fraudulent representations to and employing a trick or scheme on
Dr. Morris.
At the final hearing, Petitioner presented the testimony of Respondent; Dr. Morris; Ellis Younkin (an associate dean at FAU); James S. Fisher (a former associate provost at FAU); Neil Bailes (an investigator employed by Petitioner); and Harriet Brinker (a registered nurse). Petitioner offered 35 sequentially numbered exhibits, each of which was accepted into evidence.
Respondent testified on her own behalf and presented the additional testimony of Claudia Martha Hauri (a registered nurse and the director of the ARNP program at Barrie University).2
Respondent offered 24 sequentially numbered exhibits, 20 of which were admitted into evidence. Respondent's Exhibits 4, 7, 19, and 22 were not admitted into evidence.
Following the close of the final hearing, Respondent filed two separate motions to supplement the record of the hearing by adding as exhibits certain documents that were not introduced at the final hearing. Respondent's motions failed to state sufficient grounds for the requested relief, and the motions were denied by separate orders.
A two-volume Transcript of the proceedings was filed on May 20, 2003. The parties filed Proposed Recommended Orders, which have been duly-considered by the undersigned in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is the state agency charged with regulating the practice of nursing pursuant to Chapters 20, 456, and 464, Florida Statutes.
Respondent is a licensed registered nurse in the State of Florida, having been issued license number RN 832942.
In the fall of 1997, Respondent enrolled in FAU's ARNP program, which she continued until the spring of 1999, when she was dismissed from the program.
Respondent was dismissed from FAU's ARNP program after she received a failing grade (an F) in a required clinical
course (NGR 6602L). All students in the FAU ARNP program are required to make a grade of B or higher in clinical courses to continue in the program.
On May 7, 1999, Ellis Younkin, the Graduate Program Coordinator for FAU and an associate dean, advised Respondent in writing that she had been dismissed from the ARNP program.
At all times pertinent to this proceeding, Respondent was advised of her right to seek permission to retake the clinical program she had failed and her right to appeal her dismissal from the ARNP program. Respondent attempted to gain permission to retake the clinical program and to appeal her dismissal from the ARNP program.
In the spring of 2000, after her dismissal from the FAU ARNP program, Respondent asked Dr. Morris, a physician in private practice, to be her preceptor for the FAU clinical program she had failed (NGR 6602L).
Respondent told Dr. Morris that she had failed the earlier clinical program (NGR 6602L), but she misled Dr. Morris into believing that she was nevertheless a student in good standing in the FAU ARNP program by her statements and by the papers she showed him, including an outdated preceptor request form, a cooperative agreement form, and a form cover letter. In the spring of 2000, when Respondent had the dealings with
Dr. Morris described in this Recommended Order, Respondent knew
or should have known that she had been dismissed from the FAU ARNP program and she knew or should have known that her actions to appeal that dismissal had not stayed her dismissal from the program.
The preceptor arrangement was for Respondent to perform the clinical duties of an ARNP under Dr. Morris's supervision and responsibility for a total of 60 hours. Dr. Morris would thereafter evaluate her performance and submit that evaluation to the FAU ARNP program. Because of Respondent's deception, that arrangement was a sham.
The FAU ARNP program requires that all preceptor arrangements and the physicians who are to serve as preceptors be approved before a preceptor program begins. When he agreed to the preceptor arrangement with Respondent, Dr. Morris was unaware that FAU required prior approval of a preceptor program, and he believed that Respondent would be responsible for any required paperwork.
Respondent never requested the FAU ARNP program's approval of her preceptor arrangement with Dr. Morris, nor did she request authorization from FAU for Dr. Morris to serve as her preceptor.
Between May 2 and May 26, 2002, pursuant to her arrangement with Dr. Morris, Respondent routinely talked to patients alone in the examination room about the reasons for the
patient's visit, to obtain a medical history, and to ascertain the patient's current medication regime. Respondent would make a diagnosis and create a treatment plan, which could include the prescription of medication, for Dr. Morris's consideration.
Dr. Morris would next come in and examine the patient. Respondent wrote patient notes in the medical records that were subsequently reviewed and co-signed by Dr. Morris.
Respondent performed acts in Dr. Morris's office that were beyond the scope of her license as a registered nurse. Ms. Harriett Brinker testified, credibly, that as a registered nurse Respondent could not prescribe treatment plans for patients, nor could she prescribe medication.
Respondent completed approximately 60 hours of clinical work with Dr. Morris under the guise of the preceptor arrangement. Dr. Morris would not have permitted Respondent to perform the work she performed in his office but for the sham preceptor arrangement.
Respondent asked Dr. Morris to submit certain paperwork pertaining to the preceptor arrangement that had been completed, including an evaluation of her performance as an ARNP student, to FAU's School of Nursing.
Thereafter, Dr. James Fisher, Associate Provost at FAU, contacted Dr. Morris about the paperwork he had submitted to FAU at Respondent's request. Dr. Morris learned from
Dr. Fisher that Respondent was not a graduate nursing student at FAU. Until his conversation with Dr. Fisher, Dr. Morris believed that Respondent was a student in good standing in the FAU ARNP program.
After working for Dr. Morris, Respondent provided FAU with her work evaluations from Dr. Morris, medical records from patients she had cared for, clinical encounter logs containing patient-specific information, and a taped recording containing a series of questions posed by Respondent to one of her patients and the patient's responses. The questions and answers pertained to the level of care Respondent provided the patient. Respondent did not have the permission of Dr. Morris or of any patient to provide these medical records to FAU.
G.M. is a patient Respondent saw when she was serving as an ARNP student while she was enrolled in the FAU clinical course NGR 6602L. Dr. Archie McLean was Respondent's supervisor for that clinical course. Respondent hand-copied a portion of G.M.'s medical record and submitted it to FAU. Respondent did not have the permission of Dr. McLean or of G.M. to copy G.M.'s medical records or to submit the copied record to FAU at the time she did so. G.M. subsequently gave Respondent permission to use his copied medical record in the manner she did.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and parties to this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See
Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994). The following statement has been repeatedly cited in discussions of the clear and convincing evidence standard:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983).
Section 464.018(1)(h), Florida Statutes, is as follows:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(h) 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.
The Board of Nursing defined unprofessional conduct by Rule 64B9-8.005, Florida Administrative Code (2000), to include the following:
Unprofessional conduct shall include:
* * *
(5) Violating the confidentiality of information or knowledge concerning a patient; or
* * *
(13) Failure to conform to the minimal standards or acceptable prevailing nursing practice, regardless of whether or not actual injury to a patient was sustained; or
* * *
(15) Practicing beyond the scope of the licensee's license, educational preparation, or nursing experience. . . .
Section 456.057, Florida Statutes, provides, in pertinent part, as follows:
As used in this section, the term "records owner" means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner;
or any health care practitioner's employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner.
* * *
(5)(a) Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. . . .
* * *
(14) Licensees in violation of the provisions of this section shall be disciplined by the appropriate licensing authority.
Section 456.072(1)(m), Florida Statutes, provides as follows:
The following acts shall constitute grounds for which the disciplinary actions
. . . may be taken:
* * *
(m) Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession.
Respondent's unauthorized disclosure of medical records constituted unprofessional conduct as defined by Rule
64B9-8.005(5), Florida Administrative Code (2000), and within the meaning of Section 464.018(1)(h), Florida Statutes.
Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.3
Respondent's deception of Dr. Morris constituted unprofessional conduct as defined by Rule 64B9-8.005(13), Florida Administrative Code (2000), and within the meaning of Section 464.018(1)(h), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint. Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.
Respondent's practice beyond the scope of her license as a registered nurse constituted unprofessional conduct as defined by Rule 64B9-8.005(15), Florida Administrative Code (2000), and within the meaning of Section 464.018(1)(h), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint. Petitioner proved by clear and convincing evidence that Respondent violated the provisions of Section 464.018(1)(h), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint.
Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 456.072(1)(m), Florida Statutes, by her deceptive dealings with Dr. Morris as alleged in Count II.4
Rule 64B9-8.006(3), Florida Administrative Code, provides a penalty range for the type of violations of Section 464.018(1)(h), Florida Statutes, found herein. The recommended penalty is a "[f]ine from $250 - $1,000 and probation with conditions to suspension, probation with conditions and fine."
Rule 64B9-8.006(3), Florida Administrative Code, also provides a penalty range for the type of violations of Section 456.072(1)(m), Florida Statutes. The recommended penalty is a fine not to exceed $1,000.
In making the recommendation that follows, the undersigned has considered that no harm to any patient resulted from Respondent's conduct. The undersigned has also considered the disposition recommended by Petitioner in its Proposed Recommended Order.
Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating the provisions of Sections 464.018(1)(h) and 456.072(1)(m), Florida Statutes, as set forth in this Recommended Order. For each violation,
Respondent's license to practice nursing in the State of Florida should be reprimanded; she should be fined in the amount of
$1,000.00 ($750 for the Count I violations and $250 for the Count II violation); she should be required to take continuing education classes on the topic of patient's rights and the topic of nursing ethics; and her license should be placed on probation for four years for the Count I violations and four years for the Count II violation, which should be served concurrently.
DONE AND ENTERED this 10th day of July 2003, in Tallahassee, Leon County, Florida.
S
CLAUDE B. ARRINGTON
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 10th day of July, 2003.
ENDNOTES
1/ Michael J. Stebbins, Esquire, attended the final hearing as the Respondent's legal adviser, but Respondent made it clear that she was representing herself in this proceeding.
Mr. Stebbins's address is 504 North Baylen Street, Pensacola, Florida, 32501.
2/ Ms. Brinker and Ms. Hauri testified as experts on behalf of Petitioner and Respondent, respectively. Both witnesses have impressive credentials and their testimony has been carefully considered by the undersigned in the preparation of this Recommended Order. The findings made and the conclusions reached reflect the undersigned's resolution of their conflicting opinions.
3/ There is no statutory exception authorizing a student nurse to disclose to his or her nursing school medical records that were generated while the student participated in a clinical program. Even if such an exemption existed, it would not be applicable to the records Respondent obtained from Dr. Morris's office because Respondent was not a student and the preceptor program with Dr. Morris was a sham. Respondent's violation occurred when she released the medical records without authorization. The fact that Respondent subsequently obtained an authorization from patient G.M. to release his records does not excuse the violation, but should be considered when a penalty is imposed for the violation.
4/ Respondent argued that her dealings with Dr. Morris constituted an educational exercise that was not related to the practice of nursing. That argument is rejected as being without merit because she clearly engaged in the practice of nursing with the patients she saw in Dr. Morris's office and because the educational preceptor arrangement was a sham.
COPIES FURNISHED:
Amy M. Pietrodangelo, Esquire John D. Lacko, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Penelope D. Lankheim
160 Northeast 25th Court Pompano Beach, Florida 33064
Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C.
Executive Director Board of Nursing Department of Health
4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252
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
Dr. John O. Agwunobi, Secretary Department of Health
4052 Bald Cypress Way, Bin A00 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 18, 2003 | Agency Final Order | |
| Jul. 10, 2003 | Recommended Order | Nurse engaged in unprofessional conduct and misled physician. |
