STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGDALENA PEREZ, )

)

Petitioner, )

)

vs. ) Case No. 07-5037

)

BOARD OF NURSING, ) *CORRECTED AS TO

) DATE AND SIGNATURE

Respondent. )

)

*CORRECTED RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 25, 2008, and on June 24, 2008, by video teleconference, with the Petitioner appearing in Miami, Florida, and the Respondent appearing in Tallahassee, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Magdalena Perez, pro se

131 West 31st Street Hialeah, Florida 33012

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure by examination as a registered nurse should be granted or denied.

PRELIMINARY STATEMENT

In a Notice of Intent to Deny dated May 29, 2007 and served June 4, 2007, the Florida Board of Nursing ("Board") notified Magdalena Perez that it intended to deny her application for licensure by examination as a registered nurse. The Notice of Intent to Deny provides in pertinent part:

The applicant obtained her education at Instituto Politecnico de Enfermeria Flores Betancourt. The applicant submitted a diploma and transcript that contain different titles. Upon review of the application file, the Board has determined that the applicant is not eligible for licensure on the following grounds:

The applicant has not demonstrated that she completed a nursing program substantially equivalent to an approved program as required by Section 464.008, Florida Statutes.

Ms. Perez timely requested a hearing to resolve disputed issues of material fact, and the Board transmitted the matter to the Division of Administrative Hearings on October 31, 2007, for assignment of an administrative law judge. Pursuant to notice, the formal hearing was held on January 25, 2008, and the continuation of the formal hearing was held on June 24, 2008.

At the January 25, 2008, hearing, Ms. Perez testified on her own behalf; Petitioner's Exhibit 1 was offered and received into evidence. The Board offered the testimony of Grace Johnson; Respondent's Exhibits 1, 2, and 3 were offered and received into evidence. Respondent's Exhibits 1 and 2 consisted of copies of documents provided by Ms. Perez with her application for licensure; Petitioner's Exhibit 1 consisted of documents that had not been provided to the Board of Nursing, and she did not have copies of the documents to distribute at the January 25, 2008, final hearing. Pursuant to the consent of the parties, Ms. Perez was allowed to submit a copy of the documents to the Division of Administrative Hearings as a composite exhibit, and, at the same time, she was allowed to submit the original documents to the Board for further review of her application for licensure.

On March 13, 2008, the Board filed a Motion for Extension of Time and to File Deposition, in which it acknowledged that, after the hearing, Ms. Perez had provided the originals of the documents received into evidence as Petitioner's Exhibit 1. The Board asserted that the documents had been reviewed and that the Board decided they were not sufficient to change the recommendation that Ms. Perez's application for licensure be denied. The Board requested that it be permitted to take the

deposition of a member of the Board's staff to establish the evidence basis for this determination.

In order to ensure that Ms. Perez, who represented herself in this proceeding, was given a full opportunity to be heard, an Order was entered on April 9, 2008, in which the request to file a deposition was denied, but the parties were ordered to provide dates on which a continuation of the final hearing could be scheduled to take evidence related to the documents received into evidence at the January 25, 2008, final hearing.

Accordingly, the continuation of the final hearing was held on June 24, 2008, at which time Ms. Perez testified in her own behalf and the Board presented the testimony of Shelley Young.

The first volume of the transcript of the proceedings was filed with the Division of Administrative Hearings on March 4, 2008, and the second volume of the transcript of the proceedings was filed on July 14, 2008. The Petitioner timely filed a post- hearing statement, and the Respondent timely filed proposed findings of fact and conclusions of law, both of which have been considered in the preparation of the Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Board is the state agency that issued the Notice of Intent to Deny Ms. Perez's application for licensure by examination as a registered nurse.1

2. Ms. Perez graduated from nursing school in Cuba in 1979, and was awarded a nursing degree.

3. Ms. Perez emigrated from Cuba to the United States in 1980. She left Cuba with virtually no notice and did not have the opportunity to take with her any documents or other papers.

4. At some point, Ms. Perez decided to apply to take the examination required for licensure as a registered nurse in Florida. She asked a neighbor who was going to Cuba for a 90- day visit to go to the school from which she graduated and obtain the documents needed to establish that she was eligible to take the Florida examination.

5. Ms. Perez's neighbor sent Ms. Perez the documents obtained in Cuba on Ms. Perez's behalf, and Ms. Perez submitted to the Board the originals of the documents she had received together with her application for licensure by examination.2

6. The documents provided to the Board by Ms. Perez included the original of a document she received from Cuba that carries the date of July 14, 1979, and reflects that Ms. Perez had received, under her maiden name, a degree from the Instituto Politecnico de Enfermeria "Flores Betancourt" entitled "Tecnico de Nivel Medio en Enfermeria." The Board's staff recognized

   this document as a diploma; it kept a copy of the document for its files and returned the original to Ms. Perez.3

7. Ms. Perez also provided with her application the original of a document identifying her by her maiden name. The document is entitled "Certification de Estudios Terminados"; it identifies the school Ms. Perez attended as the Instituto Politecnico de Enfermeria "Flores Betancourt"; it identifies the degree Ms. Perez received upon completion of her studies as "Enfermero (A)"; it lists all of the courses offered by the Instituto Politecnico de Enfermeria "Flores Betancourt"; and it includes grades for the courses Ms. Perez took a period of two years, which included all of the courses offered except for surgical nursing practice. The information provided was hand- written on what is identified as a Ministerio de Educacion form "Certificacion de Estudios Terminados," and it carries the seals and signatures of the "Director" and the "Secretario," as well as a handwritten notation that appears to be the location of the document in the official records. The Board's staff accepted the document as the transcript of Ms. Perez's nursing program in Cuba, and the Board did not question the authenticity of the transcript.

8. At the time Ms. Perez's application was reviewed by the Board's staff, the Board used guidelines entitled "Levels of Nursing Licensure in Cuba" to determine equivalencies of Cuban

   programs and programs recognized in Florida. Those guidelines showed that the Cuban titles equivalent to a registered nurse in Florida were "Licentiate en Enfemeria," "Technico Medico Enfemeria," or "Enfemeria Technico."

9. The Board considered the degree of "Tecnico de Nivel Medio en Enfermeria" that appears on the diploma provided by Ms. Perez to be the equivalent of a registered-nurse degree in Florida. The degree of "Enfermero (A)" is not listed on the guidelines and is not familiar to the Board's staff.

10. Because the diploma and the transcript submitted by Ms. Perez with her application identified different degrees, the Board was unable to determine that Ms. Perez had completed a nursing program was substantially equivalent to a registered- nurse program, and it made the preliminary decision to deny her application for licensure by examination because she failed to establish that she was eligible to take the examination that is a prerequisite to licensure.

11. The documents submitted by Ms. Perez to the Board after the final hearing on January 25, 2008, consisted of a "Certificacion de Estudios Terminados"; a translation into English of this document; a Statement of Accuracy from a Certified Translator; an English translation of the "Certificacion de Estudios Terminados"; a letter to the Board from Ms. Perez; and a "Certifico" from the Cuban Ministerio del

    Interior showing that documents relating to Ms. Perez had been provided to Violeta Pedroso Hernandez" on September 26, 2007. Ms. Perez received these documents on September 30, 2007.4

12. This second "Certificacion de Estudios Terminados," or "Certification of Completed Studies," contains handwritten information entered on a form identical to the form used for the transcript Ms. Perez submitted along with her application for licensure. The transcript contains the identical information as that contained in the first "Certificacion de Estudios Terminados" provided to the Board by Ms. Perez and accepted by the Board as authentic, except that the handwriting on this document is different from the handwriting on the first transcript provided by Ms. Perez and the degree identified in the second transcript was "Tecnico de Nivel Medio en Enfermeria," or "Intermediate Level Nursing Technician" rather the "Enfermero (A)."

13. The "Tecnico de Nivel Medio en Enfermeria" degree is recognized by the Board as the equivalent of a registered nurse degree in Florida and would be sufficient to establish eligibility to take the registered-nurse examination.

14. The documents provided to the Board by Ms. Perez after the January 25, 2008, hearing were reviewed by Shelley Young, an Educational Consultant for the Board. Among her other duties, Ms. Young reviews the credentials of foreign-educated nurses,

    including Cuban-educated nurses. Ms. Young testified that she reviewed the second "Certificacion de Estudios Terminados" provided by Ms. Perez and that she "has doubts about this being an authentic transcript" because the document looks like "a Xerox copy of a transcript written in Spanish with scores put in." Ms. Young concluded that the document submitted by

    Ms. Perez was not an authentic transcript because it "doesn’t look like it's an original" transcript.5 In Ms. Young's experience, original transcripts from Cuba are "generally"

    11 inches wide by 14 inches long; the document submitted by Ms. Perez was eight-and-a-half inches wide and 11 inches long.

15. The evidence presented by the Board at the June 24, 2008, hearing is not sufficiently persuasive to support a finding that the second transcript provided by Ms. Perez is not authentic. The evidence establishes that Ms. Perez provided the Board with the original documents she received from Cuba and that she has no other means of obtaining the documents the Board requires from foreign-educated nurses to establish that they completed a program equivalent to a program approved by the Board and are, therefore, eligible to sit for the registered- nurse examination. The diploma and second transcript Ms. Perez received and transmitted to the Board are sufficient to establish that the nursing degree Ms. Perez was awarded in Cuba was a "Tecnico de Nivel Medio en Enfermeria" degree that is

    recognized by the Board as the substantial equivalent of the registered-nurse program approved by the Board.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).6

17. Section 464.008, Florida Statutes, provides in pertinent part:

    1. Any person desiring to be licensed as a registered nurse or licensed practical nurse shall apply to the department to take the licensure examination. The department shall examine each applicant who:

       
       

       * * *

       
       

       (c) Is in good mental and physical health, is a recipient of a high school diploma or the equivalent, and has completed the requirements for graduation from an approved program, or its equivalent as determined by the board, for the preparation of registered nurses or licensed practical nurses, whichever is applicable. Courses successfully completed in a professional nursing program which are at least equivalent to a practical nursing program may be used to satisfy the education requirements for licensure as a licensed practical nurse.

       
       

       At issue in this case is whether Ms. Perez graduated from a program in Cuba that is equivalent to an approved program.

18. Pursuant to Section 120.60, Florida Statutes, an agency must give an applicant for licensure notice of the particular grounds on which it bases its preliminary decision to deny the application. The Board's Notice of Intent to Deny

    Ms. Perez's application for licensure states its determination that Ms. Perez "submitted a diploma and transcript that contain different titles" as the basis for its preliminary decision to deny her application, which determination provided the basis for the Board's conclusion that Ms. Perez was ineligible for licensure because she had failed to demonstrate that "she completed a nursing program substantially equivalent to an approved program as required by Section 464.008, Florida Statutes."

19. Because Ms. Perez has applied for licensure by examination as a registered nurse, she must prove by a preponderance of the evidence that she is entitled to take the nursing examination which is a prerequisite for licensure as a registered nurse in Florida. See Department of Banking & Finance, Div. of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); § 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, . . .").

20. State agencies have broad discretion in denying applications for licensure. See Osborne Stern, 670 So. 2d at 934. A state agency proposing to deny an application for licensure must nonetheless present evidence to support the basis for its preliminary decision to deny the application. Id. At the very minimum, the evidence presented to support an agency's preliminary decision to deny an application for licensure must be persuasive and must establish that the agency's exercise of discretion was not arbitrary.

21. "Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

22. Based on the findings of fact herein, Ms. Perez presented credible evidence in the form of a diploma and a transcript received from Cuba that establish on their faces that Ms. Perez graduated from a nursing program in Cuba with a degree that is recognized by the Board as the substantial equivalent of a registered-nurse program approved by the Board. This evidence directly addressed the basis for the Board's preliminary decision to deny Ms. Perez's application for licensure by examination set forth in its Notice of Intent to Deny and cures

    the problem of the inconsistency between the degree identified on Ms. Perez's diploma and that identified on the first transcript Ms. Perez received from the Instituto Politecnico de Enfermeria "Flores Betancourt."

23. Based on the findings of fact herein, the Board refused to consider the second transcript from the Instituto Politecnico de Enfermeria "Flores Betancourt" received by Ms. Perez and submitted to the Board because of "doubts"

    regarding the authenticity of the second transcript expressed by a member of the Board's staff. These "doubts" based on the appearance of the second transcript are not sufficiently persuasive to establish that the second transcript is not authentic.

24. Under the circumstances of this case, the evidence presented by the Board does not constitute competent substantial evidence to support the Board's preliminary decision to deny

    Ms. Perez's application on the grounds that she is not eligible for such licensure.

25. Accordingly, based on the findings of fact herein, Ms. Perez has carried her burden of proof by a preponderance of the evidence that she is entitled to take the examination required as a prerequisite to licensure as a registered nurse in Florida.

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 that Magdalena Perez is eligible to take the examination required for licensure as a registered nurse in Florida.

DONE AND ENTERED this 2nd day of September, 2008, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 2nd day of September, 2008.

ENDNOTES

1/ Section 464.008(1), Florida Statutes, provides that applications for licensure by examination be submitted to the Department of Health for review, but the testimony in this case and the provisions of the Notice of Intent to Deny establish that the application was reviewed by Board staff and that the decision to deny Ms. Perez's application was made by the Board.

2/ Ms. Johnson testified that applicants for licensure who graduated from foreign schools were generally required to submit

their documentation to a credentialing agency for review, which, in turn, submitted a report on the authenticity of the documents to the Board's staff. Nurses who graduated from schools in Cuba were not, however, required to submit their documents to a credentialing agency until sometime in 2007. Prior to this time, documents submitted by applicants for licensure from Cuba were reviewed by the Board's staff. Ms. Johnson testified that Ms. Perez's application was submitted prior to the time nurses from Cuba were required to submit their documents to a credentialing agency, and so Ms. Perez's application and accompanying documents were reviewed by the Board's staff.

3/ Ms. Johnson testified that the document in Ms. Perez's application file was not similar to other original diplomas received from persons graduating from nursing schools in Cuba. According to Ms. Johnson, those diplomas were approximately 15 inches wide and 20 inches long and were printed on buff-colored parchment. There is, however, nothing in the record to establish that Ms. Johnson, who is the Supervisor of the Board's Education Unit, reviewed the original of the document submitted by Ms. Perez with her application; rather, Ms. Johnson testified that she had only reviewed Ms. Perez's application file. Given that the Board's staff returned the original to Ms. Perez,

Ms. Johnson's testimony that the document she reviewed was not similar to other original diplomas received from Cuba has no persuasive value.

4/ Ms. Perez did not send these documents to the Board as soon as she received them because she was told that she should wait until after the hearing. She had the documents with her at the hearing, however, and they were received into evidence as Petitioner's Exhibit 1, as noted in the Preliminary Statement herein.

5/ Transcript, volume II, page 44.

6/ All references to the Florida Statutes herein are to the 2007 edition unless indicated otherwise.

COPIES FURNISHED:

Magdalena Perez

131 West 31st Street Hialeah, Florida 33012

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Rick Garcia, MS, RN, CCM Executive Director

Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin C02 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: 07-005037

Orders for Case No: 07-005037