STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On February 27, 2008, a duly noticed hearing was held in Tallahassee, Florida, pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Theodora Patten, pro se

10162 Oakton Terrace Road Oakton, Virginia 22124

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 Petitioner's application for a license as a licensed practical nurse in the State of Florida should be approved.

PRELIMINARY STATEMENT

Petitioner has applied for a license as a practical nurse in the State of Florida. On December 14, 2007, the Board of Nursing issued a Notice of Intent to Deny her application. Petitioner

disputed findings of the Board and requested a hearing on December 31, 2007. On January 3, 2008, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge and was assigned to the undersigned.

The matter was noticed for hearing February 27, 2008, and proceeded as scheduled. Petitioner testified on her own behalf and presented the testimony of one other witness. Petitioner's Exhibit numbered 1 was admitted into evidence. The Board of Nursing presented no witnesses, but Respondent's Exhibit Numbered

1 was admitted. The parties stipulated that Petitioner is currently licensed in the State of Virginia.

The proceedings were recorded and the transcript was filed with the Division March 12, 2008. Proposed Recommended Orders were timely filed and have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is licensed as a practical nurse in Virginia. She has applied for a Florida license as a practical nurse based on her Virginia license.

2. The application for licensure in Florida contains the following questions, to which Petitioner answered "yes":

   6.B. In the last 5 years, have you been treated for or had a recurrence of a diagnosed mental disorder or impairment?

   
   

   7.A. Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must

   include all misdemeanors and felonies, even if adjudication was withheld. Driving under the influence (DUI) or driving while impaired (DWI) is not a minor traffic offense for purposes of this question.

   
   

3. In July 2000, Petitioner was found guilty of simple assault, a misdemeanor, in the Circuit Court of Fairfax County, Virginia. She was fined $300, and ordered to pay costs. Two hundred dollars of the fine were suspended, conditioned upon her good behavior for a period of one year and upon the condition that she have no contact with the victim or the victim's cat. The conviction did not have any connection with Petitioner's work. Rather, it involved an altercation with a woman whose cat was discovered at Petitioner's home.

4. In 2006, Petitioner was attending school at Howard University, taking classes toward her RN degree. She began to have auditory hallucinations and was unable to sleep. At one point, Petitioner went for two days without no sleep whatsoever. At her husband's encouragement, Petitioner sought medical assistance and was admitted to a hospital for inpatient treatment. Petitioner was diagnosed as having bipolar disorder. After one week of inpatient treatment, Petitioner spent a month in Chicago with her brother, who is a licensed psychiatrist, and discontinued her nursing program because it was too stressful. Petitioner did not work for a three-month period as a result of her illness.

5. Since September 2006, Petitioner has been treated at the Adult Behavior Health Center of the United States Army hospital in Fairfax, Virginia. According to the memorandum provided to the Board of Nursing by Odita Asuncion, M.D., her diagnosis was bipolar disorder with psychotic features. Dr. Asuncion described Petitioner as being in remission, and stated that her prognosis is fair with medication and regular follow-up.

6. Petitioner takes Seraquel and Trazadone to control her condition. At the time Dr. Asuncion provided information to the Board of Nursing, Petitioner was also taking Lamictal, a mood stabilizer, but according to Petitioner this medication was discontinued three months before the hearing. While Petitioner claims the auditory hallucinations have ceased, she continues to have problems concerning her ability to sleep.

7. Petitioner currently works at a home health care agency in Virginia. Petitioner presented evidence to show that she has worked for a home health care agency, however, there is no evidence regarding the environment in which she works, the duties she performs, the amount of supervision provided or whether her employer is satisfied with either the quality of her work or her stability on the job.

8. Although she is taking her medication as prescribed at this time, Petitioner does not agree with her diagnosis. Neither does her husband. Petitioner believes that she was sick, sought

   treatment and is now well, with the exception of still having trouble sleeping.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

10. Petitioner is an applicant for licensure. As such, it is her burden to show that she is qualified for licensure. Espinoza v. Department of Business and Professional Regulation, 739 So. 2d 1250 (Fla. 3d DCA 1999); Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

11. The Board of Nursing is authorized to deny licensure under certain circumstances pursuant to Section 464.018, Florida Statutes, which states in pertinent part:

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       * * *

       
       

       1. Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime which

          directly relates to the practice of nursing or to the ability to practice nursing.

          
          

       2. Being found guilty, regardless of adjudication, of any of the following offenses: [8 enumerated crimes under Florida law];

       3. Having been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under s. 435.03 or under any similar statute of another jurisdiction; or having committed an act which constitutes domestic violence a defined in s. 741.28.

       
       

       * * *

       
       

       (j) Being unable to practice nursing with reasonable skill and safety to patients by eason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental illness or physical condition. . . .

       
       

12. The 2000 conviction for simple battery is not a conviction that serves as a basis for denial pursuant to Section 464.018(1)(c), (d) or (e). No evidence was presented to show that that it was related to the practice or to the ability to practice nursing. The conviction occurred under Virginia law, and thus is not a violation under Subsection 464.018(1)(d). The incident giving rise to the battery conviction did not constitute an offense prohibited under Section 435.03, Florida Statutes, because the victim of the battery was not a minor as required for battery convictions under Subsection 435.03(2)(j). Similarly, the conviction does not constitute an act of domestic violence as defined in Section 741.28, Florida Statutes, because the victim was not a member of Petitioner's household.

13. The more troubling issue is whether Petitioner is unable to practice with reasonable skill and safety by reason of a mental illness, as contemplated in Section 464.019(1)(j), Florida Statutes. The preponderance of the evidence submitted at

    hearing is that Petitioner suffers from a mental illness which has been diagnosed as bipolar disorder with psychotic features. While her psychiatrist described her condition as in remission, she also indicated that her prognosis was fair with medication, counseling and regular follow-up.

14. The diagnosis of bipolar disorder, standing alone, only means that Petitioner has been diagnosed with a mental illness. The issue is whether Petitioner is unable to practice with reasonable skill and safety as a result of that mental illness. In this case, Petitioner does not agree with the diagnosis and is convinced that the auditory hallucinations are a thing of the past. With this failure to acknowledge the ongoing nature of her illness, the undersigned cannot be confident that Petitioner will continue to comply with treatment necessary for her illness and thus cannot be confident she will stay in remission.

15. Most importantly, Section 464.018(1)(j), Florida Statutes, contemplates not only that Petitioner be able to work, but that she able to work with reasonable skill and safety to patients. Here, Petitioner testified that she took a leave of absence while seeking treatment but that she is back at work at a home health agency in Virginia. While there is no doubt that she is working, no evidence was presented to show that she is working with reasonable skill and safety. There was no evidence from her employer, other than pay information, to indicate the quality or

type of her work, the level of supervision required, or the level of confidence in her ability to make decisions and carry out the duties of a licensed practical nurse. Absent some evidence of this nature, Petitioner has not sustained her burden to show that is qualified for licensure in the State of Florida at this time.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered denying Petitioner's application for a license as a practical nurse in the State of Florida.

DONE AND ENTERED this 10th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 April, 2008.

COPIES FURNISHED:

Theodora Koko Patten 10162 Oakton Terrace Road Oakton, Virginia 22124

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

Rick Garcia, Executive Director Board of Nursing

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Patricia Dittman, Chair Board of Nursing Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

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

Josefina M. Tamayo, General Counsel Department of Health

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

Dr. Ana M. Viamonte Ros, 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.

PATRICIA DITTMAN CHAIR BOARD OF NURSING

DEPT OF HEALTH

4052 BALD CYPRESS WAY TALLAHASSEE FL 32399-1701

R S POWER AGCY CLK DEPT OF HEALTH

4052 BALD CYPRESS WAY BN A02 TALLAHASSEE FL 32399-1701

DR ANA M VIAMONTE ROS SEC DEPT OF HEALTH

4052 BALD CYPRESS WAY BN A00 TALLAHASSEE FL 32399-1701

RICK GARCIA EXE DIR BD OF NURSING

DEPT OF HEALTH

4052 BALD CYPRESS WAY TALLAHASSEE FL 32399-1701

Docket for Case No: 08-000083

Orders for Case No: 08-000083