STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Petitioner,

vs.

ANDREA TYSON, C.N.A.,

Respondent.

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) Case No. 03-3309PL

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RECOMMENDED ORDER

Notice was provided and on November 5, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2003). The hearing location was the Dixie County Courthouse, Courtroom B, 150 Northeast Cedar Street, Cross City, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Elmer C. Ignacio, Esquire

Ephraim D. Livingston, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: No appearance

STATEMENT OF THE ISSUE

Should discipline be imposed by Petitioner against Respondent's certificate to practice as a Certified Nursing Assistant?

PRELIMINARY STATEMENT

On July 31, 2003, the Department of Health through its Secretary filed an Administrative Complaint in Case No. 2002- 0344 naming Respondent as a Certified Nursing Assistant.

Respondent requested a formal hearing pursuant to Sections

120.569 and 120.57(1), Florida Statutes, by execution of a form on August 18, 2003.

On September 15, 2003, the Division of Administrative Hearings in the person of its Interim Director, S. Scott Stephens, received the case for assignment of an administrative law judge to conduct a hearing to resolve disputes of material fact existing between the parties.

The hearing was noticed in writing to be conducted on November 5, 2003, at the time and place previously described. Copies of the Notice of Hearing were furnished to the parties. Respondent was provided a copy of the notice at the address set forth in the Election of Rights Form she had executed. That Notice of Hearing was sent by ordinary mail and was not returned as undeliverable. Petitioner served pleadings upon the Respondent at that address.

When the hearing commenced, Respondent was not in attendance nor was anyone present in her behalf. At no time during the pendency of the hearing did Respondent attend or was she represented by another person.

At approximately 1:20 p.m. on November 5, 2003, Respondent telephoned the office of the undersigned, the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Respondent spoke to the Administrative Assistant to the undersigned, Frankie Vignochi. It is reported by Ms. Vignochi that Respondent explained her absence from the hearing by saying she "Just realized that she had missed her hearing." She "thought it was the next day." It is reported by Ms. Vignochi that Respondent asked what would happen given her lack of attendance. Ms. Vignochi reported that she explained to the Respondent that the hearing probably went forward without Respondent's participation. Finally,

Ms. Vignochi stated that she told the Respondent that if the Respondent intended to file something to further explain her position it had best be done on that date, November 5, 2003. The nature of the conversation between Ms. Vignochi and the Respondent that took place was made known to counsel for Petitioner. To this date Respondent has made no further attempt to participate in the proceeding.

Petitioner through counsel moved for official recognition of Section 464.204, Florida Statutes (2002). That motion was granted. Although the Administrative Complaint refers to Section 464.204, Florida Statutes (2001), the earlier recognition of Section 464.204, Florida Statutes (2002), does not influence the outcome in this case.

Petitioner had moved to deem its requests for admissions directed to Respondent be admitted for purposes of this proceeding. Rule 1.370, Fla. R. Civ. P. The motion to deem facts admitted for purposes of this proceeding was granted at hearing.

At hearing Respondent presented Margo Chancey, R.N.C. as its witness. Petitioner's Exhibits 1A and 1B were admitted, respectively the video deposition and transcript of the video deposition of resident W.H. Petitioner's Exhibits 2 and 3 were admitted as evidence.

On November 25, 2003, the hearing transcript was filed. On December 5, 2003, Petitioner filed a proposed recommended order which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

Facts Admitted:

1. Petitioner is the state department charged with regulating the practice of nursing pursuant to Chapter 20.43,

   Florida Statutes, Chapter 456, Florida Statutes; and Chapter 464, Florida Statutes.

2. Respondent is Andrea Tyson.

   
   

3. Respondent is a Certified Nursing Assistant (C.N.A.) in the State of Florida having been issued certificate number 0898- 262792261.

4. Respondent's current address of record (address listed for C.N.A. certificate with Department of Health) is P.O. Box 999, Cross City, Florida 32628.

5. On or about August 23, 2001, Respondent was employed at Tri-County Nursing Home (Tri-County) in Trenton, Florida.

6. During the time Respondent worked at Tri-County, W.H. (resident referred to in Petitioner's Administrative Complaint) was a resident at Tri-County.

7. Respondent knew W.H. prior to working at Tri-County.

   
   

8. Respondent regularly cared for W.H. at Tri-County.

   
   

9. On or about August 23, 2001, Respondent assisted W.H. in taking a shower.

10. On or about August 23, 2001, while in the shower with W.H., Respondent jerked W.H.'s hand from the shower grab bar.

11. On or about August 23, 2001, while in the shower with W.H., Respondent sprayed W.H.'s face with cold water.

12. On or about August 23, 2001, after Respondent finished showering W.H., Respondent partially dried W.H. and put on only his pants.

13. On or about August 23, 2001, after Respondent finished showering W.H., Respondent refused to assist W.H. with putting on his shirt.

14. On or about August 23, 2001, W.H. had to seek the assistance of another person at Tri-County, in putting on his shirt following his shower with Respondent.

    Additional Facts:

    
    

15. W.H. had suffered a stroke in 1992.

    
    

16. W.H. came to be a resident at Tri-County on March 8, 1999.

17. On August 23, 2001, Respondent told W.H. to go to the bathroom to get ready for his shower. W.H. required assistance to shower. Respondent had given showers to W.H. before the date in question.

18. On August 23, 2001, it was necessary for W.H. to support himself by holding on to the shower grab bar. W.H. explained that he uses the shower bar because he feels better that way, more secure. When Respondent jerked W.H.'s hand away from the shower grab bar, she did so without warning. This made

    W.H. feel bad. It also made him feel mad at Respondent.

19. On the date in question while in the shower, W.H. told the Respondent that the water was too hot. Her response was to reach over with her hand and turned the lever to the cold setting and rinsed W.H. off with cold water. The water was really cold. W.H. did not complain about the cold water. He just wanted to get out of the shower. W.H. was left with the impression that if Respondent was going to be mean to him, he did not want to be around her. The incident made him feel abused. W.H. felt intimidated by the Respondent given her actions.

20. As part of the process of showering that took place on August 23, 2001, in addition to spraying cold water in W.H.'s face, the cold water got into his ears. He did not like water in his ears.

21. After the shower, Respondent dried W.H. off and put on his underclothes and pants and shoes but not his shirt. W.H. was left with only his T-shirt above the waist. W.H. took his outer shirt and went into the hall and got another C.N.A. to assist him in putting it on.

22. To W.H.'s knowledge he had never done anything or said anything to provoke Respondent before the incident in the shower.

23. W.H. reported the incident to a nurse at Tri-County about a day after the event.

24. The expectation at Tri-County was that Respondent as a

    
    

    C.N.A. would perform her duties in the facility consistent with the Florida standards of care incumbent upon C.N.A. certificate holders.

25. Tri-County is a skilled nursing facility. C.N.A.s who are employed at that facility, such as Respondent, undergo orientation in addition to the training received when earning a certificate to practice in Florida. The orientation includes issues such as fire safety, resident rights,1/ infection control, and body lifting of residents. What is described as the "paper part" of the orientation takes a day. In addition, the new employee is paired with an experienced C.N.A. on the same shift where the new employee will work, and the new employee and the experienced employee work together for a couple of weeks at the nursing home as training. While working with the experienced C.N.A., that employee uses a check-list to verify that the new employee can master the skills required to assist the residents.

26. Within Tri-County the expectation for resident rights are in association with the right to dignity, among other rights.

27. C.N.A.s at Tri-County are responsible for feeding, hydration, bathing, toileting, and skin care in relation to residents they are responsible for.

28. Margo Chancey, R.N.C. was the Director of Nurses at Tri-County on August 23, 2001. She continues to hold that position.

29. Ms. Chancey is a licensed nurse in Florida. By virtue of her formal training and work experience, Ms. Chancey is sufficiently familiar with the expected standard of care to be provided by C.N.A.s to offer expert opinion testimony concerning Respondent's treatment of W.H. on August 23, 2001.

30. Nurse Chancey explained W.H.'s condition in August 2001 as being a circumstance in which W.H. had had a couple of strokes over a period of years. Nonetheless, W.H. remained alert and oriented and continued to be alert and oriented in more recent times including the present. W.H. gets around in a wheelchair. He is on an oxygen concentrator P.R.N. W.H. suffers with chronic pulmonary disease. W.H. was more ambulatory in August 2001 than he is today.

31. Ms. Chancey is sufficiently familiar with the events on August 23, 2001, concerning Respondent's provision of care to

    W.H. while providing him a shower, to offer an opinion on whether that performance was within the minimal standards expected of a C.N.A. Ms. Chancey established that the manner of care provided from Respondent to W.H. was inhumane and abusive and below minimal standards. More particularly, Ms. Chancey commented that Respondent gave W.H. no choices. She demanded

    things of the resident. She sprayed cold water in his face, which is unacceptable. She was rough and rude with W.H. when removing his arm from the grab bar, which is unacceptable.

    W.H.'s patient's rights were violated pertaining to matters of human dignity and he was not treated safely. As Ms. Chancey correctly explained, for Respondent to perform her duties in giving the bath to W.H. she would have had bathing equipment ready when he came into the room and she should have been in the room when W.H. started to get undressed and would not have removed his arm from the grab bar. W.H. had the right to complain that the water was too hot. Respondent should have tested the water before she sprayed what was revealed to be cold water on W.H. Respondent should have totally dressed W.H. before she left the room given his condition, chronic obstructive pulmonary disease. The risk was that his condition could worsen when left partially dressed. This might lead to his contracting pneumonia.

    CONCLUSIONS OF LAW

    
    

32. In accordance with Sections 120.569, 120.57(1), 456.001(4), and 456.073(5), Florida Statutes (2003), the Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case for purposes of the final hearing and entry of the recommended order.

33. By this action Petitioner seeks to discipline Respondent's C.N.A. certificate. For that reason the burden of proof resides with the Petitioner to demonstrate that the allegations made are established by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stearn and

    Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Clear and convincing evidence has been defined in Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

34. The Administrative Complaint refers to Section 464.204(1)(b), Florida Statutes (2001), pertaining to disciplinary action against a C.N.A. who practices in Florida wherein it states:

    1. The following acts constitute grounds for which the board may impose disciplinary sanctions as specified in subsection (2):

       
       

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       (b) Intentionally violating any provision of this chapter, chapter 456, or the rules adopted by the board.

       
       

35. The range of penalties contemplated in Section 464.204(2), Florida Statutes (2001), are as follows:

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       
       

       1. Denial, suspension, or revocation of certification.

          
          

       2. Imposition of an administrative fine not to exceed $150 for each count or separate offense.

          
          

       3. Imposition of probation or restriction of certification, including conditions such as corrective actions as retraining or compliance with an approved treatment program for impaired practitioners.

    
    

36. The Administrative Complaint when describing the provisions within Chapter 464, Florida Statutes (2001), which have been allegedly violated, and the rules adopted by the Nursing Board allegedly violated, refers first to Section 464.018(1)(h), Florida Statutes (2001), which allows the imposition of discipline for:

    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.

    
    

37. The related provision within Florida Administrative Code Rule 64B9-8.005(13)(2001), would allow discipline to be imposed for:

    Failure to conform to the minimal standards of acceptable prevailing nursing practice regardless of whether or not actual injury to a patient was sustained.

    
    

38. Clear and convincing evidence was presented to show that Respondent, when rendering care to W.H. at Tri-County on

    August 23, 2001, did remove his hand from the shower grab bar by jerking it away. Upon his complaint about the water being too warm, she turned the cold water on and sprayed him with the cold water. Respondent was mean and inappropriate with W.H. Respondent did not properly dress W.H. following the shower. By her acts she did not conform to the minimal standards of acceptable practice for a C.N.A., notwithstanding lack of any demonstrated injury to W.H. Respondent violated Section 464.204(1)(b), Florida Statutes (2001), by violating Section 464.018(1)(h), Florida Statutes (2001), and Florida Administrative Code Rule 64B9-8.005(13)(2001). For these violations Respondent is subject to punishment in accordance with Section 464.204(2), Florida Statutes (2001).

39. Petitioner's counsel has proposed punishment as

follows:

1. Placement of Respondent's certificate on probation for a period of one year subject to terms established by the Board of Nursing;

   
   

2. Imposition of $150.00 administrative fine;

   
   

3. Requiring Respondent to take a continuing education class in the care of the elderly; and

   
   

4. The reprimand of Respondent's C.N.A. certificate.

All recommendations, save the recommendation of a reprimand, are recognized in Section 464.204(2), Florida Statutes (2001).

RECOMMENDATION

Upon consideration of the facts found and Conclusions of Law reached, it is

RECOMMENDED:

That a Final Order be entered finding the Respondent in violation of Sections 464.204(1)(b), 464.018(1)(h), Florida Statutes (2001), and Florida Administrative Code Rule 64B9- 8.005(13)(2001), placing Respondent on probation for a period on one year subject to terms established by the Board of Nursing, imposing a $150.00 fine and requiring that Respondent attend a continuing education class on the care of the elderly.

DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida.

S

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 22nd day of December, 2003.

ENDNOTE

1/ The reference to resident rights within the nursing home refers to Section 400.022, Florida Statutes.

COPIES FURNISHED:

Elmer C. Ignacio, Esquire Ephraim D. Livingston, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Andrea Tyson

Post Office Box 999

Cross City, Florida 32628

Ruth Stiehl, Executive Director

Board of Certified Nursing Assistants Department of Health

4052 Bald Cypress Way 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: 03-003309PL

Orders for Case No: 03-003309PL