STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL VOCATIONAL )

TRAINING CENTER, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Respondent. )

Case No. 03-1430

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on June 27, 2003, by video teleconference with the Petitioner appearing from Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth S. Mair, Esquire

Mair, Jean-Francois & Associates, P.A. 3500 North State Road 7, Suite 479 Fort Lauderdale, Florida 33319-3060

For Respondent: Susan B. Bodell, Esquire

Edward A. Tellechea, Esquire Office of the Attorney General Administrative Law Section

The Capitol, Plaza 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether the Petitioner, International Vocational Training Center, should be approved to train practical nurses as requested. More specifically, whether the proposed program has demonstrated it has adequate physical space and an appropriate curriculum as required by provisions of the Florida

Administrative Code.

PRELIMINARY STATEMENT

This case began when the Respondent, Board of Nursing, issued an amended Notice of Intent to Deny on January 30, 2003. By such notice the Respondent advised the Petitioner that its application to offer a program to train practical nurses would be denied. The denial was based on three insufficient items: the physical space to be utilized for the program, the curriculum proposed for the program, and the financial and budget information of the applicant. The latter issue was resolved prior to the formal hearing.

The Petitioner timely challenged the remaining issues (as to space and curriculum) and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on April 14, 2003.

At the hearing, Hilda Allen, the Petitioner's executive director, testified on behalf of the applicant. Exhibits 1 and

2 were admitted into evidence by stipulation during the

Petitioner's case. The Respondent offered the testimony of Dan Coble, Ph.D. A third exhibit, numbered Exhibit 3, was also received in evidence.

The transcript of the proceeding was filed on July 24, 2003. The parties were granted leave until 5:00 p.m., August 7, 2003, to file Proposed Recommended Orders. The parties timely filed such proposed orders that have been fully considered in the preparation of this order.

All citations are to Florida Statutes unless otherwise indicated.

FINDINGS OF FACT

1. On or about January 28, 2002, the Petitioner, International Vocational Training Center, through its President and CEO, Hilda Allen, filed an application for nursing program with the Respondent, Board of Nursing. This is the application at issue in this proceeding. Prior proposals whether reviewed or acted on by the Respondent or not are not at issue.

2. On March 11, 2002, the Respondent provided feedback to the Petitioner regarding the application. More specifically, the Respondent noted items that would "strengthen" the proposal and make it "more efficient for board review." Among the items suggested were limiting class size, providing information deemed partial or incomplete, and to submit a final proposal with the amendments documented.

3. On April 25, 2002, the Respondent acknowledged receipt of Petitioner's amended application and notified Petitioner that a site visit to the school would be conducted on May 21, 2002. The site visit was performed by the Respondent's nursing education director, Danni Atkins, and Dan Coble, Executive Director for the Board of Nursing (Board).

4. Concurrently to the site visit, the Petitioner's application was scheduled for Board review at its June 2002 meeting in Fort Lauderdale.

5. At the June 2002 Board meeting, action on the Petitioner's application was tabled. At that time the Respondent requested, and Petitioner timely submitted additional information regarding the application at issue.

6. The matter next came before the Board in August 2002.

   
   

   By this time the Board had identified three areas of concern: the physical space allocated by the applicant for the program, the curriculum content for the program, and other financial and budget issues related to the applicant.

7. Again the Petitioner sought to provide information to satisfy the Respondent's concerns. Nevertheless, the Board issued a Notice of Intent to Deny in October 2002.

8. In December 2002, the Petitioner appeared before the Respondent to again attempt to resolve the issues.

   At that time the Petitioner offered evidence to demonstrate it met the criteria concerns noted by the previous comments.

9. In this regard, the Petitioner sought and obtained an approval from the Department of Education for the practical nursing program it proposes. A copy of that document was marked and received in evidence as Exhibit 2. The curriculum (dated July 2002), while acceptable to the Florida Department of Education, has not been fully reviewed by the Board.

10. As to the physical space concerns expressed by the Respondent, diagrams submitted by the Petitioner do not contain dimensions as to width or length for any of the rooms designated. During the Board meeting on December 12, 2002, the Petitioner represented it had over 6,000 square feet of space to allocate to the practical nurse program. In contrast, on

    June 27, 2003, Petitioner represented the space measured about 4300 square feet.

11. In either event, the configuration of the space is the essential issue. During the site visit, representatives from the Board were unable to determine that the physical space as proposed for configuration by the applicant would be adequate given the number of students who would be participating in the program.

12. The applicant has not demonstrated the square footage and configuration of the physical space it proposes to use with

    the specificity needed to determine whether it would be adequate for the number of students participating in the program.

13. The applicant did not submit copies of leases for off-site spaces that might be used for classroom purposes.

14. The Petitioner did not use any Board-approved nursing program as a consultant to develop or fine-tune its proposed curriculum.

15. The basis for the denial of the instant application was stated to be:

    1. The application failed to contain a financial plan and budget showing that adequate funds had been allocated for provision of a sound and effective total operation within the program; and it failed to show financial resources adequate for planning, implementation, and continuation of the program with a budget projection for 3-5 years, as required by Rules 64B9- 2.007(3) and 64B9-2.011(1)(b)10., Florida Administrative Code;

    2. The application failed to reveal the institution possessed adequate space to operate a practical nursing program, as required by Rule 64B9-2.007(6)(a), Florida Administrative Code; and

    3. The applicant failed to meet practical nursing program curriculum requirements as contained in Rules 64B9-2.006(3) and 64B9- 2.015(7), Florida Administrative Code.

       
       

       CONCLUSIONS OF LAW

       
       

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57.

17. As the applicant, the Petitioner bears the burden of proof in this cause to establish it is entitled to approval of its request to operate a program to train and educate practical nurses. As is more particularly set forth below, it has failed to meet that burden.

18. Chapters 464 and 64B9, Florida Administrative Code, govern the requirements for approval of the application at issue.

19. Rule 64B9-2.007(6)(a), Florida Administrative Code, provides:

    The institution shall provide such classroom, laboratories, equipment, library, office space, telephones for instructors and other space as necessary to implement and maintain the program.

    
    

    The pertinent rules do not define how much space might be necessary to implement and maintain the program. Presumably all programs are judged based upon size of the program and number of students to be served by the program. In this case the parties have differed as to the adequacy of the space proposed by the applicant.

20. The Petitioner has failed to demonstrate that the space to be allocated for the intended uses is adequate. It is impossible to determine whether the space as described in this record would be sufficient to implement and maintain the program proposed. Even by limiting enrollment, the space as currently

    depicted does not establish a space appropriate for training purposes. The inadequacy would be easily cured if the dimensions of the space were provided and designated by use. For example, "activity area" needs to denote size with some reference as to "activity" defined. Classrooms could be designated appropriately whether for practical training purposes or lecture. In either event the size and dimension should be shown. A lecture classroom proposed for 24 students that does provide a space for seating 24 would obviously not comply with the rule. The Petitioner can easily comply with the requirement of the rule by appropriately labeling and showing the dimensions of the rooms it proposes to use. Additionally, a second site visit performed at the Board's direction would also allow the applicant to demonstrate that the sizes of the rooms are adequate for their intended uses.

21. Rule 64B9-2.006(3), Florida Administrative Code, sets forth the "Specific Requirements for Practical Nursing Programs." This rule provides:

    1. The curriculum shall include:

       1. Theoretical instruction and clinical experience in medical, surgical, obstetric, pediatric and geriatric nursing.

       2. Theoretical instruction and clinical experience in both acute and long term care situations.

       3. Theoretical instruction and clinical application of vocational role and function, personal, family and community health concepts, nutrition, human growth and

          development over the life span, body structure and function, interpersonal relationship skills, mental health concepts, pharmacology and administration of medications, legal aspects of practice and current issues in nursing.

       4. Clinical experiences of at least 50% of the total program.

    2. Instructional hours shall include classroom instruction, laboratory practice and clinical experience. Laboratory practice may be included in clinical experience hours when approved by the Board as an adjunct learning experience not to replace clinical experience.

    
    

22. Rule 64B9-2.015(7), Florida Administrative Code, provides the pertinent guidelines for the "Curriculum for a Practical Nursing Education Program." The stated objective of such curriculum is to "ensure the preparation of nurses capable of competent practice." The rule then outlines the curriculum for a practical nursing education program.

23. In this case the curriculum both exceeds the curriculum for a practical nursing education program and fails in that it does not fully identify limitations on persons performing the tasks of practical nurses. Again, the Petitioner should be able to rectify the deficiencies with little difficulty. The Petitioner must clearly delineate the role of the practical nurse in the nursing process, clearly limit that role so that tasks reserved for registered nurses (and are therefore beyond the scope of the practical nurse) are not presumed, and reconcile the course offerings set forth in the

curriculum with the hours of instruction and training mandated by the Board. The correction of the curriculum should be easily accomplished. With the input afforded the applicant from the formal hearing this concern of the Board could be alleviated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing grant the Petitioner's application with the provision that the application be amended to cure the deficiencies noted above. The Petitioner must modify its curriculum to delineate the limitations of practice for practical nurses and to fully address the role of the practical nurse. Further, the Petitioner must submit an amended drawing of its physical space to clearly and accurately depict the dimensions and spaces intended for the uses described. Should the Petitioner fail to amend the information submitted, it is recommended that the application be denied.

DONE AND ENTERED this 28th day of August 2003, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH 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 28th day of August, 2003

COPIES FURNISHED:

Susan B. Bodell, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Kenneth S. Mair, Esquire

Mair, Jean-Francois & Associates, P.A. 3500 North State Road, Suite 479

Fort Lauderdale, Florida 33319

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

R.S. Power, Agency Clerk Department of Health

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

Dan Coble, RN PhD CNNA C, BC Executive Director

Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

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: 03-001430

Orders for Case No: 03-001430