Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent Eunice Lyles Nicholson is 53 years of age and has been a registered nurse since 1947. She moved to Florida in 1970 and went to work for Jess Parrish Memorial Hospital, where she remained until February of 1977. Since that time, she has been employed in private nursing jobs and at the Titusville Nursing and Convalescent Center. At all times relevant to the incidents which are the subject of the Administrative Complaint, respondent was the charge nurse for the second floor of Jess Parrish Memorial Hospital. Her employee evaluations at the Hospital between 1970 and 1976 were "very good" overall. On or about December 2, 1979, respondent destroyed an ampule containing 100 mg of Demerol, a controlled substance, in the presence of another nurse. She did not sign for the destruction at this time. Later, when the nurse who witnessed the event was out, respondent requested another nurse to sign the document stating that she had witnessed the destruction. It is not acceptable or prevailing nursing practice to request one who did not actually witness the event to sign a document stating that she had witnessed the destruction of a controlled substance. Between February 4, 1977, and February 17, 1977, a period of time in which the Hospital was busier than normal, various discrepancies, inconsistencies and insufficiencies were -noted in the charts and records of approximately six patients under respondent's care. These included incomplete and insufficient nurses notes on the patients' charts; failure to chart the administration of controlled susbstances on the patients' medical record; discrepancies between the nurse's notes, the patient's medication record and the narcotic control record; and the administration of medication at more frequent intervals then called for by the physician's orders. It was respondent's testimony that the charting errors were not intentionally made. She could not explain the errors and could only recall that the Hospital was very busy during that period of time. There was no evidence that any patient was harmed by the charting errors or that there was any similarity in the errors found. There was no evidence that respondent converted any controlled substance to her own use. On or about February 17, 1977, respondent was the head nurse on the 7:00 A.M. to 3:00 P.M. shift. After respondent left this shift, it was noticed that there were two extra ampules of Demerol 75 in the narcotic cart. Respondent was called at home and notified of the discrepancy. She returned to the Hospital. Rather than making an attempt to determine the reason for the narcotic count being incorrect, respondent simply destroyed the two extra ampules. Witnesses observed this event. It is the responsibility of the nurse in charge of each shift to account for, reconcile and verify the inventory of controlled substances with the narcotic records before she leaves her shift. The reason for the discrepancy was never determined.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board: find the respondent guilty of unprofessional conduct in violation of Florida Statutes, 464.21(1)(b); and impose a six-month suspension of respondent's registered nursing license; and suspend the enforcement of the suspended license and place the respondent on probation for a period of one (1) year. Respectfully submitted and entered this 5th day of September, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Carl Wasileski Post Office Box 1286 150 Taylor Street Titusville, Florida 32780 Geraldine Johnson Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA BOARD OF NURSING IN THE MATTER OF: Eunice Rae Lyles Nicholson 1813 Lilac Circle Titusville, Florida 32780 CASE NO. 79-623 As a Registered Nurse License Number 53804-2 /
The Issue Whether Petitioner's application for licensure as a practical nurse (PN) should be approved or denied.
Findings Of Fact At issue in this proceeding is the application for licensure by examination as a PN signed by Petitioner on August 6, 2012, and mailed to the Board for filing. This application will be referred to as the "August 2012 PN application." The purpose of an application for PN licensure by examination is to demonstrate that the applicant has the educational and background qualifications to be eligible to take the PN licensure examination. The Board uses the National Council Licensure Examination, commonly referred to as "NCLEX." The NCLEX is owned by the National Council of State Boards of Nursing, to which all state nursing boards, including Florida's, belong as members. There is an NCLEX for PN licensure (NCLEX-PN) and a separate NCLEX for RN licensure (NCLEX-RN). The August 2012 PN application stated that Petitioner obtained her nursing education from Lincoln Technical Institute in Fern Park, Florida, where Petitioner completed an LPN program from which she graduated on September 24, 2011. In the "examination history" section of the August 2012 PN application, Petitioner stated that she took the NCLEX-RN in Florida in November 2002 and passed. However, according to Mr. Spooner's credible testimony, Petitioner could not have taken and passed the NCLEX-RN in Florida in November 2002, as represented. The Board has no record of Petitioner ever having been approved to take the NCLEX-RN in Florida, much less having taken and received a passing score. As Mr. Spooner explained, in order for someone to take either the NCLEX-RN or the NCLEX-PN in Florida, that person must first submit an application to the Board for either RN or PN licensure by examination, and the application must be approved by the Board. If an application is approved, the Board then would send an "authorization to test" to the approved applicant. The Board would also transmit the applicant's name to the exam vendor, Pearson VUE, on a list identifying the applicant as eligible to take either the NCLEX-RN or the NCLEX-PN. Following the examination, the results would be transmitted by the exam vendor directly to the Board. In a section of the August 2012 PN application called "applicant background," Petitioner was asked a series of "yes-no" questions, asking whether she had "ever applied for" any of the following: RN licensure by examination in Florida; PN licensure by examination in Florida; RN licensure by endorsement in Florida; or PN licensure by endorsement in Florida. Petitioner did not answer either yes or no to any of these questions about prior applications in Florida. The "applicant background" section also asked Petitioner whether she has ever been licensed in Florida as an RN or a PN. Petitioner indicated that she had been licensed in Florida as an RN. Petitioner was required to list all nursing licenses she has held; and for any licenses that were no longer active, Petitioner was instructed to "state why and when" the license became no longer active. Petitioner listed her Florida RN license and offered the following as to why and when that license became no longer active: "lack of accreditation of the school (07-2007)." Evidence at hearing established that in the August 2012 PN application, Petitioner should have disclosed the following prior nursing applications filed in Florida: in May 2006, Petitioner applied for RN licensure by endorsement (May 2006 RN application); in October 2008, Petitioner applied for RN licensure by examination (October 2008 RN application); in January 2009, Petitioner applied for RN licensure by examination (January 2009 RN application); and in October 2011, Petitioner applied for PN licensure by examination (October 2011 PN application). The May 2006 RN application resulted in the issuance of an RN license to Petitioner. This was the RN license that Petitioner listed on the August 2012 PN application. However, the RN license was not rendered inactive for the reason stated by Petitioner ("lack of accreditation of the school"). Instead, the May 2006 RN application contained false information, misrepresenting that Petitioner graduated in 2002 from an ADN (associate degree in nursing) program at Laramie County Community College in Wyoming; that Petitioner had taken and passed the RN licensure exam in Wyoming in November 2002; and that in December 2002, the Wyoming Board of Nursing issued an RN license to Petitioner. Submitted with the May 2006 RN application was a falsified license verification form completed by someone identified as the director of Wyoming's Board of Nursing, verifying that Petitioner held an active RN license in Wyoming and providing the license number ostensibly corresponding to Petitioner's Wyoming RN license. The May 2006 RN application contained accurate personal information about Petitioner, including her social security number, date of birth, and her mother's maiden name. Some of the personal information was wrong, such as Petitioner's birth place. Petitioner's Orlando, Florida, home address was a bit garbled-- the street number and name were correct, but "Parkway" was left off of the street name and was, instead, put into the space for the city (so that the city was identified as Parkway instead of Orlando). However, the zip code was correct, so despite the garbled address in the application form, the Board got the address straightened out and was able to correspond with Petitioner about the application during its processing. Petitioner described the background leading up to the May 2006 RN application. Petitioner was born in Haiti. She said that she was a nurse in Haiti before moving to Florida. Petitioner offered no details regarding any formal education received or regulatory approvals to practice nursing held in Haiti. There was no evidence establishing when Petitioner moved to Florida, except that it was sometime before 2002. Once in Florida, she sought to take the steps needed to be allowed to practice nursing in Florida. Petitioner testified that based on her "accreditation" from her country, she was allowed to take an "online program" of some kind offered by the International School of Nursing, which she described as based in Wyoming, with "school" branches in Hallandale, Florida, and Nigeria. According to Petitioner, she successfully completed the online program in 2002; she understood that the purpose of the program was to allow her to "sit for the exam here in Florida." Petitioner testified that her online school took "them" (presumably Petitioner and other students) to Miami, Florida, to "the exam" in 2002. When asked what exam she took, Petitioner testified as follows: "When I go in the computer it says NCLEX, NCLEX exam."1/ Petitioner said that someone at the online school called her to tell her that she passed the exam, but she never saw the results. Petitioner said that she was told by the online school that she could not get a nursing license until she paid the school the rest of the money she owed for the online program. Petitioner testified that she paid off the debt between 2002 and 2006, at which point the school prepared the May 2006 RN application and filed it for Petitioner. Petitioner's testimony was not forthright about the May 2006 RN application. Petitioner claimed that she had no knowledge whatsoever about the contents of the May 2006 RN application, because the application was handled entirely by the online school. At first, Petitioner claimed that all she knew was that the school submitted the application for her, and the next thing she knew, she received her license. She claimed that she did not question the license when it appeared, because she thought she qualified for the license. However, Petitioner ultimately admitted that she was involved in the application process, because the Board corresponded with her at her home address and Petitioner responded to the Board's requests. The Board wrote to Petitioner to confirm receipt of her RN "endorsement application," but noted that she had omitted the filing fee; the filing fee was then paid by Petitioner. The Board then wrote to Petitioner to confirm receipt of the filing fee payment, but noted that Petitioner needed to get fingerprinted and have the fingerprint cards submitted for a background check; Petitioner followed those instructions. Petitioner admitted that she did not go to nursing school at a community college in Wyoming, did not take the NCLEX-RN in Wyoming, and never held an RN license in Wyoming. Petitioner denied signing the May 2006 RN application and noted that the signature is not even her name. Indeed, with the benefit of that testimony, if one stares at the signature long enough, the cursive scrawl takes on the appearance of the name of the street where Petitioner lives. However, the scrawled signature is far from legible; the letters are not distinct. At a quick glance, one could just as reasonably discern something approximating Petitioner's first initial and last name, instead of the name of Petitioner's street; those two alternatives are about the same length and end in the same letters ("on"). For someone expecting to see Petitioner's name and not studying the signature with the benefit of Petitioner's testimony, it is not so obvious that the signature is not Petitioner's name. Petitioner did not directly accuse someone from the online school of taking it upon himself or herself to submit for Petitioner a fraudulent application for RN licensure by endorsement without Petitioner's knowledge or permission, but that was the implication of Petitioner's testimony claiming that she had no idea what was in the May 2006 RN application. Petitioner's testimony is difficult to credit, especially since Petitioner did not identify who would have done such a thing or what that person's motive could possibly have been. Moreover, Petitioner's claimed ignorance of the application is not borne out by the evidence. At the very least, Petitioner knew that an application for RN licensure by endorsement was filed in her name, because she received the Board's letters acknowledging receipt of her "endorsement application," and she actively participated in the processing of that application by responding to the Board's requests. An application for licensure by endorsement means that the applicant has an active license in another state, which was obtained after the applicant took and passed that state's licensure examination, either the NCLEX or the State Board test pool. Thus, Petitioner knew, or certainly should have known, that she was not eligible for RN licensure by endorsement because she did not hold an RN license in another state. See § 464.009, Fla. Stat. (2006)(addressing the requirements for RN or PN licensure by endorsement). As Petitioner acknowledged, applicants for nursing licenses in Florida are required to know the licensure laws and rules. Despite not qualifying under Florida law for RN licensure by endorsement, Petitioner accepted the RN license issued by the Board on the basis of the falsified May 2006 RN application and practiced as an RN for several months. In early 2007, the Board received a "fraud list" from the National Council of State Boards of Nursing, identifying names of possible fraudulent applicants. As a result, the Board investigated Petitioner's May 2006 RN application. Using the Wyoming online licensure-look-up tool, the Board searched for Petitioner and found no nursing license history, a fact later confirmed to the Board in an affidavit from a Wyoming Board of Nursing representative. Using the same tool, the Board searched the records by the license number identified in the license verification form filed with Petitioner's May 2006 RN application. The results of that search showed that the license number did not correspond to an active RN license issued to Petitioner following successful examination in Wyoming. Instead, the license number corresponded to an RN license by endorsement that had been issued to a different person, not Petitioner, but that had expired in 2004. The Board's investigation also confirmed that the person identified as the director of Wyoming's Board of Nursing, who completed Petitioner's license verification form, was not the Wyoming Board of Nursing's director. On June 22, 2007, the Department of Health (Department) issued an emergency suspension order (ESO), suspending Petitioner's RN license. The ESO contained a detailed recitation of the facts regarding the May 2006 RN application, including the fact that it was an application for RN licensure by endorsement, which required verification that Petitioner held an active RN license in another state and that to address this requirement, a license verification form attested to Petitioner's RN license in Wyoming. The ESO set forth the results of the Board's investigation, by which it determined that the May 2006 RN application contained material misrepresentations and was supported by a falsified license verification form. The ESO concluded that because Petitioner's RN license was procured by knowing misrepresentations, when the actual facts showed that Petitioner was not qualified for the license issued to her, it was necessary to immediately suspend Petitioner's license. Petitioner did not contest the ESO. Petitioner testified that she did not fight the ESO, because she had no money to hire a lawyer. However, Petitioner also admitted that she did not have grounds to fight it, because she did not, in fact, qualify for RN licensure by endorsement. The Department issued an administrative complaint against Petitioner's RN license based on the same allegations as in the ESO. In lieu of further proceedings on the administrative complaint, Petitioner agreed to voluntarily relinquish her RN license, which the Board accepted by Final Order rendered December 24, 2007. As with the ESO, Petitioner attempted to explain her choice not to contest this action as a financial decision. However, Petitioner ultimately conceded that she could not have successfully fought to retain her RN license that she received by endorsement, because she was not qualified for licensure by endorsement. Petitioner claimed to not understand until sometime recently, when the Board sent her a copy of the May 2006 RN application, that fraudulent information and documentation were submitted to enable her to obtain an RN license. Petitioner claimed to have been "shocked" when she saw the application. Petitioner's testimony in this regard was not credible. Petitioner may have failed to previously obtain a copy of the application that she knew was submitted in her name. However, at least by mid-2007, Petitioner was informed, with great specificity set forth in the ESO and administrative complaint, of each aspect of false information and falsified documentation that the Board found in connection with her May 2006 RN application. Petitioner knew, from the ESO and administrative complaint, that her application for RN licensure by endorsement could only be approved if there was evidence that she had an active RN license in another state. Petitioner knew, from the ESO and administrative complaint, that her application was submitted with a falsified license verification form attesting to the RN license she supposedly held in Wyoming, when Petitioner knew she never had any such license. Although Petitioner denied completing and signing the May 2006 RN application, she admitted that she completed, signed, and filed the other applications enumerated in Finding of Fact 9, above. The October 2008 RN application was an application for licensure by examination by which Petitioner sought permission to take the NCLEX-RN. To demonstrate that she qualified for the educational requirements for RN licensure by examination, Petitioner reported that she had graduated in 2002 from an ADN program at the International Nursing School in Hallandale, Florida. This was the online school previously described as the International School of Nursing. The October 2008 RN application stated that Petitioner took the RN licensure exam in Florida in November 2002 and passed. As previously noted, Mr. Spooner credibly testified that Petitioner could not have taken the NCLEX-RN in Florida without first applying for RN licensure by examination, obtaining Board approval, and receiving an authorization to test from the Board, which she did not do before November 2002 (or at any other time). On October 31, 2008, the Board notified Petitioner that it was unable to approve her application for examination, because the school attended by Petitioner for the ADN program did not offer a Board-approved program of nursing education. Petitioner's January 2009 RN application was another attempt to obtain Board approval to sit for the NCLEX-RN. This application identified a different nursing school attended for Petitioner's nursing education. According to the application, Petitioner completed the ADN program at Valencia Community College, in Orlando, Florida, graduating on July 1, 2008. However, contrary to the application's representation, Petitioner did not "graduate" from an ADN program; instead, Petitioner took an online continuing education course called "RN Refresher 1" and received a certificate of participation on July 1, 2008. The January 2009 RN application also represented that Petitioner had taken and passed the RN licensure exam in Florida in May 2008. At hearing, Petitioner did not attempt to explain this reference, nor was there any other evidence to suggest that Petitioner took and passed the NCLEX-RN in Florida in May 2008 (or at any other time). Once again, the Board notified Petitioner that her January 2009 RN application could not be approved, because Petitioner failed to demonstrate that she met the educational qualifications necessary for RN licensure by examination. The Board noted that Petitioner's continuing education participation certificate was not adequate to meet the educational requirements for RN licensure. At hearing, Petitioner attempted to cast blame on staff persons at the Board who fielded her telephone calls asking how she could get relicensed following her relinquishment of the RN license. Petitioner testified that unnamed persons told her either that she needed to go back to school; or that she needed to go to an accredited school; or that all she needed to do was to take a refresher course. Petitioner's unsubstantiated testimony did not help establish that Petitioner's August 2012 PN application should be approved. In any event, the suggestion that Petitioner was told a refresher course was sufficient to meet educational requirements for RN licensure is rejected as lacking credibility. Petitioner may have been told that she had to graduate from a Board-approved ADN program to apply for RN licensure, which would explain why Petitioner represented in her January 2009 RN application that she graduated from an ADN program. However, as Petitioner admitted, she was never told that she should misrepresent the facts on her applications. After Petitioner's unsuccessful attempts to apply for RN licensure, Petitioner changed course and enrolled in a Board-approved PN program at Lincoln Technical Institute in Fern Park, Florida. She completed the program in September 2011, and then submitted the October 2011 PN application, seeking Board approval to sit for the NCLEX-PN. In the October 2011 PN application, Petitioner answered "no" to the question asking whether she had ever applied for RN licensure by examination in Florida (despite two prior applications), but Petitioner answered "yes" to the question asking whether she ever applied for RN licensure by endorsement in Florida, acknowledging the May 2006 RN application. Petitioner identified the RN license she received in 2007, but in response to the query, "[i]f no longer licensed, state why and when," she falsely stated that the "license expired." In the examination history section of the October 2011 PN application, Petitioner stated that she took and passed the NCLEX-RN exam in Wyoming, in February of either 2002 or 2006 (both years are written on top of each other; it appears that 2006 was written first, and then was changed to 2002, although it could be the other way around). The October 2011 PN application was considered by the Board at a public meeting in February 2012. Petitioner appeared and testified, although she said that she was not given enough time to explain about the May 2006 RN application and the relinquishment of her RN license. The Board issued a notice of intent to deny the October 2011 PN application based on misrepresentations in the application.2/ The Board referred to the fraudulent May 2006 RN application and relinquishment of Petitioner's RN license (contrary to the application's representation that Petitioner's RN license had expired). The Board also referred to the application's statement that Petitioner took and passed the NCLEX-RN in Wyoming in 2002, which was contrasted with Petitioner's testimony before the Board, when she "testified both that she did and did not take the NCLEX-RN in Wyoming." Petitioner did not request a DOAH administrative hearing to dispute the facts in the Board's notice of intent to deny the October 2011 PN application. Instead, Petitioner took the option offered in the Board's notice for an informal hearing before the Board "[i]f you do not dispute any material fact[.]" That hearing was held at a public meeting of the Board on June 7, 2012, but Petitioner did not appear. By Final Order rendered June 20, 2012, the Board denied the October 2011 PN application. The Final Order summarized the reasons previously recited in the notice of intent to deny, including the fact that the May 2006 RN application was fraudulent and resulted in the relinquishment of Petitioner's RN license, and including Petitioner's testimony before the Board in February 2012 that she did not sit for the NCLEX-RN in Wyoming as represented in the October 2011 PN application. The Final Order concluded that Petitioner "is in violation of Section 456.072(1)(f) and (h) and 464.018(1)(a) by attempting to obtain or obtaining a nursing license by bribery, misrepresentation or deceit." As authorized by sections 464.018(2) and 456.072(2), Florida Statutes (2011), the Board denied Petitioner's application. The August 2012 PN application repeated the same essential problems as the October 2011 PN application, which was denied by Final Order. Petitioner again misrepresented the reason why her Florida RN license was no longer active, although this time, instead of saying that the RN license had expired, Petitioner changed her response to "lack of accreditation of the school." Petitioner again misrepresented her NCLEX examination history, although this time, instead of saying that she took and passed the RN licensure examination in Wyoming in February 2002 or 2006, Petitioner said that she took and passed the RN licensure examination in Florida in November 2002. Petitioner was given the chance to explain the inconsistencies apparent from a side-by-side review of the applications she acknowledged having prepared and filed. Petitioner offered no explanation. The implication of the unexplained inconsistencies is that Petitioner intentionally gave false answers out of fear that the Board would deny her applications if the true answers were given and that Petitioner kept changing her false answers out of hope that a different (false) answer would lead the Board to approve the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Rose Fenelon's, application for practical nurse licensure by examination. DONE AND ENTERED this 25th day of March, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2013.
The Issue Whether Respondent engaged in unprofessional conduct and, if so, what disciplinary action should be imposed on her nursing license.
Findings Of Fact The Department of Health is the state agency charged with regulating the practice of nursing pursuant to Chapter 464, Florida Statutes. At all times relevant to this proceeding, Respondent was a licensed practical nurse in the State of Florida, holding license no. PN 0986101. Respondent has been so licensed since 1990. At all times relevant to this proceeding, Respondent was employed in the office of Dr. David Flick, M.D., an oncologist. On October 17, 1995, Dr. Flick wrote a prescription for Fiorinal for Katherine Filan, who on that date, was an employee of Dr. Flick. The prescription authorized one refill. On or about January 12, 1996, in response to an inquiry from a pharmacy, Respondent approved a refill of the prescription for Fiorinal for Katherine Filan, without first consulting Dr. Flick. According to Dr. Flick, at all times pertinent to this proceeding, the general policy in his office was that he approved all refills. This policy was unwritten and was not effectively communicated to employees. Respondent and one other licensed practical nurse, formerly employed as a nurse in Dr. Flick's office, provided credible testimony that nurses in Dr. Flick's office were allowed to refill prescriptions, except for narcotics. However, when nurses authorized such refills, the policy was that the refills were to be documented and charted. Respondent believed that her action of authorizing the refill of Ms. Filan's prescription was consistent with the practice and policy of Dr. Flick's office. Moreover, Respondent believed that her approval of the refill was permitted because Dr. Flick had expressly authorized one refill on the original prescription he had written. No evidence was presented that Ms. Filan had refilled the prescription prior to January 12, 1996. After Respondent authorized the refill of the prescription for Ms. Filan, she failed to record the refill authorization on the any medical records. Respondent maintains that her failure to document the refill was inadvertent and was the result of her being extremely busy that day. On the day that Respondent authorized the refill, she was the only chemotherapy nurse on duty, was taking care of patients, and taking incoming nurse's calls. Except for this proceeding, Respondent has never been the subject of a disciplinary proceeding related to her nursing license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is REOMMENDED that the Department of Health, Board of Nursing, enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 17th day of February, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 17th day of February, 1999. COPIES FURNISHED: Sam Power, Agency Clerk Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency of Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Howard M. Bernstein, Esquire Agency for Health Care Administration General Counsel's Office Medical Quality Assistance Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Michele L. Schrembs DeGrolier, pro se 1501 Carlos Avenue Clearwater, Florida 33755
Recommendation Revoke the license of Respondent Mary Katherine Mitchell. DONE and ORDERED this 31st day of January 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Life Building Jacksonville, Florida 32202 Mary Katherine Mitchell, L.P.N. Route 7, Box 314 Milton, Florida 32570
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed. DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Linda Sears Gibson 2003 Southwest Seventh Street Ocala, Florida Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner's application for multistate registered nurse licensure by endorsement should be denied for the reasons given by Respondent in its Notice of Intent to Deny, or whether Petitioner met his ultimate burden of persuasion that his application should be approved.
Findings Of Fact Stipulated Facts Mr. Fernandez pled nolo contendere to and was convicted of assault with a deadly weapon on June 26, 2001, in Dade County, Florida. Mr. Fernandez's nursing license was revoked by Final Order issued on January 16, 2014, for violating sections 464.018(1)(n) and 464.018(1)(h), Florida Statutes, and Florida Administrative Code Rules 64B9-8.005(2)(c) and 64B9-8.005(1)(e). Additional Facts Based upon the credibility of the witnesses and evidence presented at the final hearing, matters deemed admitted, and matters officially recognized, the following additional facts are found: Petitioner was licensed in Florida as an RN by the Board on April 11, 2001. The matters giving rise to the stipulated facts above occurred at the beginning and near the end of the span of time during which Petitioner held an RN license in Florida. No evidence was presented regarding Petitioner's professional employment or activities during that time span, with the exception of very limited facts surrounding the matters addressed in the two stipulated facts above. Permanent Revocation of Petitioner's RN License by the Board In November 2009, an Administrative Complaint was issued against Mr. Fernandez, charging him in three counts with violations of section 464.018(1)(n) (failing to meet minimal standards of acceptable and prevailing nursing practice), rule 64B9-8.005(2)(c) (misappropriating drugs), section 464.018(1)(h) (unprofessional conduct), and rule 64B9-8.005(1)(e) (committing acts of negligence, by omission or commission). Petitioner, represented by counsel, elected an informal proceeding not involving disputed issues of material fact, choosing not to contest the allegations and opting to address mitigating/aggravating circumstances in a hearing before the Board. On January 5, 2011, the Board issued a Final Order concluding that Mr. Fernandez committed the violations charged, and permanently revoking his RN license as the penalty. Mr. Fernandez retained a different lawyer (who was his counsel of record in this case) to appeal the 2011 Final Order. The appeal was resolved by opinion in Fernandez v. Department of Health, Board of Nursing, 82 So. 3d 1202 (Fla. 4th DCA 2012) (Fernandez I). As described in the opinion, the only issues raised on appeal were the penalty assessments for Counts I and II. Accordingly, the court affirmed Count III without discussion. The court reversed the penalty assessments for Counts I and II. As to Count I, the court held that the 2011 Final Order was deficient for failing to explain the reason(s) for increasing the penalty above the penalty range in the Board's penalty guidelines rule. As to Count II, the court held that no penalty could be assessed for the violation found, because the Board had failed to adopt penalty guidelines for that violation. The court therefore remanded the case to allow the Board to reconsider the penalty assessed for just Counts I and III. The court acknowledged the Board's statutory authority codified in section 456.072(2)(b) to impose the penalty of permanent revocation, which was not challenged by Mr. Fernandez. However, the court held that if the Board chose to impose that penalty, it had to explain its reason(s), since permanent revocation exceeded the penalty guidelines. In Fernandez I, Mr. Fernandez did not challenge the fairness of the proceedings based on his election of an informal hearing. As the court pointed out: "Fernandez elected an informal hearing. By doing so, Fernandez admitted the factual allegations, seeking only to mitigate the penalties that might be imposed." Fernandez I, 82 So. 3d at 1203. On August 29, 2012, the Board issued a second Final Order, again permanently revoking Petitioner's RN license. To address the court's directives in Fernandez I, the 2012 Final Order set forth five reasons justifying an upward deviation from the penalty guidelines rule to impose the penalty of permanent revocation. Mr. Fernandez appealed the 2012 Final Order, arguing that none of the five reasons given for imposing the penalty of permanent revocation was supported by competent substantial evidence. As to one of the five reasons, the court agreed. But as to the other four reasons for increasing the penalty, the court rejected Mr. Fernandez's challenge to the adequacy of supporting evidence. Once again, the court recognized that the Board had the authority to increase the penalty based on reasons supported by the record evidence. However, the court could not determine whether, without considering the one reason found insufficiently supported, the Board would have imposed the same penalty. Therefore, the court remanded the case to the Board to reconsider the penalty based on the four reasons upheld by the court as adequately supported with record evidence. Fernandez v. Dep't of Health, Bd. of Nursing, 120 So. 3d 117 (Fla. 4th DCA 2013) (Fernandez II). The 2014 Final Order was the Board's third and last Final Order. The 2014 Final Order set forth the four reasons to increase the penalty that were upheld in Fernandez II, and again imposed the penalty of permanent revocation of Petitioner's RN license. Mr. Fernandez did not appeal the 2014 Final Order. The permanent revocation of his RN license is therefore the outcome of the disciplinary action, and the findings of fact, conclusions of law, and penalty are binding on Petitioner, as well as the Board. The 2014 Final Order adopted the allegations of fact in the Administrative Complaint, which were not disputed by Mr. Fernandez. The admitted facts relevant to Counts I and III were as follows: At all times material to this Complaint, Respondent was employed at Sunrise Home Health Care (SHHC), located in Miami, Florida. Respondent was assigned to provide home health services to various clients of the agency. On or about February 16, 2009, Patient MS, a 68 year old female, was a patient of SHHC. Patient MS, a female, had a prescription for Heparin Lock Flush: Flush catheter with 3-5mL of Heparin after last saline flush. Heparin is used to prevent blood clots from forming in people who have certain medical conditions or who are undergoing certain medical procedures that increase the chance that clots will form. Heparin is also used to stop the growth of clots that have already formed in the blood vessels, but it cannot be used to decrease the size of the clots that have already formed. Heparin is also used in small amounts to prevent blood clots from forming in catheters (small plastic tubes through which medication can be administered or blood drawn) that are left in veins over a period of time. Heparin is in a class of medications called anticoagulants ('blood thinners'). It works by decreasing the clotting ability of the blood. Respondent is not an employee of Miramar Memorial Hospital and does not have rights to practice medicine at Miramar Memorial Hospital. On or about March 18, 2009, Patient RM, a 44 year old female was a patient at Miramar Memorial Hospital, located in Miramar, Florida. Patient RM was known to the Respondent. On or about March 18, 2009, patient RM gave birth to twin female babies. On or about March 19, 2009, Respondent was at Miramar Memorial Hospital visiting Patient RM. On or about March 19, 2009, Respondent administered one or more syringes of Heparin (5cc each), belonging to Patient MS, to Patient RM via catheter. The syringes were found in the garbage can of Patient RM by her assigned nurse MB, an employee of Miramar Memorial Hospital. On or about March 19, 2009, Patient RM did not have a prescription or physician's order for the use of Heparin. On or about March 20, 2009, Respondent was interviewed by the Miramar police and admitted administering one syringe of Heparin to Patient RM, without a physician's order. After adopting as its findings of fact the allegations in the Administrative Complaint, the Board made additional findings of aggravating facts in the 2014 Final Order: The Board finds aggravating facts as follows: Respondent practiced nursing in a facility where he was not employed. Respondent administered medication that belonged to another patient to RM, who was not his patient. The medication that was administered to RM was brought into the hospital from Respondent's car. Respondent administered medication to RM that was not ordered by RM's treating physician. Respondent failed to advise hospital staff that he administered medication to RM. Respondent administered heparin to RM to flush a foley catheter, which is not proper protocol for flushing a foley catheter. Respondent has practiced nursing for 13 years. The 2014 Final Order then set forth the Board's Conclusions of Law that Mr. Fernandez violated section 464.018(1)(n) (as charged in Count I, for failing to meet minimal standards of acceptable and prevailing nursing practice by misappropriating drugs) and section 464.018(1)(h) (as charged in Count III, for engaging in unprofessional conduct through negligence, by administering the medication Heparin to RM, who was not his assigned patient, without physician's order and without any knowledge of the patient's current medical treatment). The 2014 Final Order next addressed the penalty for those violations, as follows: The Board is empowered by Sections 464.018(2) and 456.072(2), Florida Statutes, to impose a penalty against the licensee. The Board finds that a penalty harsher than the penalties stated in Rule 64B9-8.006 is warranted for the following reasons: The danger to the public represented by Respondent's actions. The length of time Respondent has practiced nursing. The deterrent effect of the penalty being imposed. The failure of Respondent to correct the violation. Based on those four reasons, the Board permanently revoked Mr. Fernandez's RN license, effective upon the filing of the 2014 Final Order with the Department of Health's Agency Clerk (which was on January 16, 2014). Despite permanent revocation of his RN license, Mr. Fernandez filed an application with the Board in 2020 for multistate RN licensure by endorsement. The Board voted to deny the application at a noticed meeting. Mr. Fernandez did not appear at that meeting. The Board exercised its authority under sections 456.072(2) and 464.018(2) to refuse to certify the applicant for licensure because of the 2014 permanent revocation of Mr. Fernandez's RN license, and also because Mr. Fernandez's application disclosed that he had pled nolo contendere and was convicted for felony aggravated assault with a deadly weapon in 2001.2 The Board found that the crime was related to the practice of nursing or the ability to practice nursing. Mr. Fernandez requested a disputed-fact administrative hearing to contest the proposed denial of his application. He raised as the only disputed fact whether the 2001 conviction was directly related to the practice of nursing. He asserted that it was not, and contended that the applicable statutes and rules require that a criminal conviction must be directly related to one's professional practice. Based on his argument directed to one of the two reasons cited in the Notice of Intent to Deny, Mr. Fernandez contended that the Board should approve his application for RN licensure. Mr. Fernandez's hearing request did not take issue with, or address, the other basis for the Board's refusal to certify the applicant for approval— that the Board had permanently revoked Mr. Fernandez's RN license by the 2014 Final Order. At the hearing, although Petitioner sought to dispute the 2 "Road rage" was the term used by Petitioner's attorney in his opening statement to describe the incident underlying the 2001 nolo plea and conviction for felony aggravated assault with a deadly weapon. That description is apt, based on the evidence. facts on which the 2014 Final Order was predicated, he offered no argument as to why he should be permitted to contest those facts now, or why he should be permitted to apply for an RN license in Florida at all, following the permanent revocation of his RN license. Evidence Related to Whether Petitioner Proved Entitlement to Licensure Assuming, arguendo, that the permanent revocation of Petitioner's RN license does not act to bar him from applying anew for an RN license, the next question is what evidence supports Mr. Fernandez's qualifications to meet the requirements for the license for which he has applied. As the license applicant, at the final hearing Mr. Fernandez presented his case first. Mr. Fernandez did not offer his 2020 license application into evidence. The only document identified as a potential exhibit for Petitioner in the parties' Pre-hearing Statement was Mr. Fernandez's resume, but his resume was not offered into evidence. Although Petitioner did not offer his 2020 application in evidence, Respondent did so, presenting as a composite exhibit what was described as Petitioner's 2020 application file.3 Neither Petitioner nor Respondent addressed, through evidence or argument at the hearing or by post-hearing submittal, whether the evidence supports a finding that Petitioner made a preliminary showing of compliance with the requirements for multistate RN licensure by endorsement. The application form completed by Petitioner and signed on September 10, 2020, reflects that Petitioner is seeking multistate RN licensure by endorsement based on having successfully applied for and obtained RN licensure by examination in Florida in 2001. 3 The portions of the application that are Mr. Fernandez's own statements can be considered admissions when offered against him, but statements recounting what others said or statements submitted by others are hearsay that cannot be the sole basis for findings of fact. See § 90.803(18)(a), Fla. Stat. (statements of a party offered against the party are admissible as exceptions to the hearsay prohibition). Petitioner's application reflects that he has held one, and only one, nursing license in any state, and that is the Florida RN license number 9177203, issued on April 11, 2001, which was permanently revoked by the 2014 Final Order. At the time Mr. Fernandez submitted his 2020 application, he did not hold an active license to practice nursing in another state. No evidence was offered at the hearing to prove that Mr. Fernandez has ever held a license to practice nursing in another state. No evidence was offered to prove that Mr. Fernandez has actively practiced nursing in another state for two of the last three years, as would stand to reason in the absence of evidence that he holds a license to practice nursing in another state. Mr. Fernandez designated the state of Florida as his "home state" for purposes of seeking a multistate license, and acknowledged that he does not hold a multistate license in any other state. In separate application sections asking about the applicant's criminal history and disciplinary history, Mr. Fernandez disclosed his felony conviction for the road rage incident and the Board's revocation of his Florida RN license. These disclosures triggered requirements in each section that the applicant provide: (1) a self-explanation describing the circumstances; (2) attach documentation (court records for the criminal history; complaint and Final Order for the disciplinary history); and (3) three "current (written within the last year) professional Letters of Recommendation." (underline and bold in original). Petitioner's Response to Permanent Revocation Per 2014 Final Order In his 2020 application, Mr. Fernandez took the opportunity in his self-explanation of the 2014 Final Order to dispute the findings and conclusions, and offer his own version of what happened. Mr. Fernandez began his self-explanation by characterizing his actions as a "BIG mistake." Mr. Fernandez's self-explanation to the Board went on to describe his visit to the hospital to see RM, FV's wife, who had given birth to twins. Mr. Fernandez described FV as an old friend who was also the owner of the home health agency where he worked. He said his friend/boss, FV, had called three times urging him to come visit to see the babies. Mr. Fernandez described being in RM's hospital room while RM's assigned nurse was tending to the patient and inserting a foley catheter. He described how thereafter, he and his friend/boss became concerned about the patient's status, called the assigned nurse "more than 4 times" and suggested that she take action that they thought was needed, but the nurse disagreed. According to Mr. Fernandez, he and FV "were there asking and begging her [the assigned nurse] for proper nurse implementations, we talk [to] her many times … but she never implements" what they were urging. The nurse contacted the patient's physician, who gave orders for medication, which was administered by the patient's assigned nurse. Mr. Fernandez said that after the nurse had implemented the doctor's orders, both RM (the patient) and FV (his friend/boss) asked Mr. Fernandez to help the patient, "knowing that I have on my car saline flushes Syringes [sic]." He said he asked the nurse one more time to take the step he thought was needed, but she did not. He and FV then went to the parking garage to Mr. Fernandez's car. Mr. Fernandez claimed he intended to get some saline syringes that he uses to flush his home health patients' catheters. Mr. Fernandez claimed that "fatally within those saline syringes flush Bag there were 2 heparin flush syringes," and he assigned blame to the home health office for putting the heparin syringes in the saline syringe bag by mistake. He admitted he took the bag with him to RM's room and performed the foley catheter flush. He also explained that "due to the rush of the situation and the effect of [FV] requesting my help (my home health boss) I had a poor judgment and flushed the [RM] Foley Cath, no realizing at that moment she was not my patient." (errors in original; emphasis added). Mr. Fernandez added in his self-explanation that RM's assigned nurse found two heparin flush syringes in the patient's garbage can (confirming that Mr. Fernandez did not tell the assigned nurse or anyone else that he had administered to RM what he claimed he thought were saline flushes, but instead were heparin flushes), and the assigned nurse called the police. Mr. Fernandez claimed he volunteered to the police that he was the one who administered the heparin flushes only because the police thought FV had tried to kill his wife after finding the two heparin flush syringes in her garbage can. He expressed regret for telling the truth: "And I blame my self- telling police the true." Mr. Fernandez proceeded in his self-explanation to accuse both RM and FV of lying to the police by saying they never asked Mr. Fernandez for help. As Mr. Fernandez put it, when RM was interviewed by the police, "she denies THE TRUTH, she lied, she say NO to an important question done by the police, at that moment she denies requesting my help, the police asks her 3 times and 3 times she denial asking me for help that day." (errors in original). Mr. Fernandez then blamed his friend/boss, claiming RM later told him that "she lied to policeman following advice from her husband [FV], (who for fear or afraid of being discovered stealing from Medicaid and Medicare on his agency decided to lie to the police, [FV] the person who was my friend and the one who call me to the hospital that day willing to know my opinion about [RM's] poor condition, the same who asked me for help, the owner of community care home health nursing agency in which I usually worked under his orders. He instructed [RM] to lied to police)." (errors in original). Mr. Fernandez's self-explanation ended with one final accusation— that the attorney he hired to represent him in the disciplinary case also lied: "I hired and lawyer Office for a formal hearing in from of board of nursing but they also lied to me and sent papers requesting an informal hearing … . In a formal hearing true will clarified the incident and the final result again my RN license it could have been different but the malpractice and bad representation from my lawyer requesting an informal hearing in from of the board of nursing [d]on't allow me to dispute the charges on the administrative complaint." (errors in original). As noted above, though, Mr. Fernandez retained a different lawyer— his counsel of record in this case— to appeal the first two Final Orders, and no issue was raised in Fernandez I or Fernandez II with regard to the propriety of the election or the resulting informal hearing. At the hearing, Mr. Fernandez addressed the permanent revocation of his RN license by attempting to dispute the facts that he was deemed to have admitted (as stated by the court in Fernandez I). He offered testimony that was somewhat similar to his self-explanation, although there were several notable inconsistencies. Mr. Fernandez went into detail in describing the patient's condition, in an attempt to justify the appropriateness of what he did, although he offered no medical records to prove what he described. He offered largely hearsay testimony regarding what he was told by RM and FV, but offered no non-hearsay evidence (such as the testimony of FV, whom Mr. Fernandez continued to describe as his best friend). He offered some of the same accusations directed to RM's assigned nurse, although again, he offered no medical records to support his description of RM's condition, nor did he offer non-hearsay testimony to prove alleged conversations with the nurse. He repeated his claim that RM and FV begged him for help, omitting any reference to the different story they apparently told the police (which he characterized in his self-explanation as lies). Again, no corroborating non- hearsay testimony was offered, such as testimony from FV, his "best friend." In the self-explanation, Mr. Fernandez only said that he and FV asked the assigned nurse multiple times to implement the procedure they thought was needed, and that in the rush and pressure of being asked for help by his friend and boss, he did not even realize that RM was not his patient. And rather than attempt to justify giving heparin to RM that was prescribed for one of his home health agency patients, without knowing RM's medical background and without doctor's orders, Mr. Fernandez claimed that the home health agency put the heparin in the wrong bag by mistake. In marked contrast, at the final hearing Mr. Fernandez expanded his hearsay testimony to claim: that he asked other hospital staff members for help, to no avail; that the patient's condition required administration of heparin; and that he only took matters into his own hands as a last resort to address what he believed to be an emergency situation.4 His embellishments lacked credibility, were inconsistent with his self-explanation (which also suffered from credibility questions5), and relied almost exclusively on hearsay that cannot be considered. What Mr. Fernandez did show, by his testimony and self-explanation, was that he accepts little to no responsibility, and instead, continues to blame and accuse everyone else for his actions. Even if he had offered credible, non-hearsay evidence, Mr. Fernandez is bound by facts found in the 2014 Final Order permanently revoking his license. His testimony cannot be accepted, because it was contrary to facts he is not entitled to relitigate. These include the finding that he "administered heparin to RM to flush a foley catheter, which is not proper protocol for flushing a foley catheter." 2014 Final Order at 2, aggravating fact 6. Mr. Fernandez is also bound by the reasons found by the Board to increase his penalty, including the first reason: "The danger to the public represented by [Mr. Fernandez's] actions." 2014 Final Order at 3. He had his opportunity to challenge the sufficiency of the evidence supporting that finding, and the court rejected that challenge in Fernandez II. Mr. Fernandez offered no evidence to prove that he should no longer be considered a danger to the public. No evidence was offered to prove what Mr. Fernandez has been doing since the 2014 Final Order was issued. He 4 Mr. Fernandez claimed he was told criminal charges filed against him would be dropped because he was acting as a Good Samaritan. This blatant hearsay cannot be considered. 5 Mr. Fernandez's claims that he did not intend to administer heparin and that he did not realize RM was not his patient are, quite simply, unbelievable. offered no proof of rehabilitative steps taken, professional activities, educational endeavors—nothing. The record is devoid of evidence to overcome the negative implications from the 2014 Final Order and the findings therein. Petitioner's Response to Felony Conviction for Road Rage Incident Nineteen days after Petitioner's Florida RN license was issued, on April 30, 2001, Petitioner committed an episode of "road rage." He was charged with aggravated assault with a deadly weapon, a third-degree felony. He pled nolo contendere and was convicted of this charge. For his crime, in addition to a probationary term, Petitioner was required to take an anger management course. In his 2020 application, Mr. Fernandez included a short self- explanation to the Board, along with the court records, as required. In his self-explanation, he said that he thought another vehicle cut him off, and instead of getting an apology from the driver, the driver gestured with her middle finger. (Petitioner described the driver of the other vehicle as a male, but the court records he provided clearly identified the other driver as a female.) Petitioner admitted that he reacted to the gesture "with anger." He accelerated, made a U-turn, and forced the driver to pull off the road so he could confront her. (Petitioner did not describe what he did as forcing the other driver off the road; instead, he said that he accelerated and did the U- turn so that, once he was alongside the other driver, they could have a "discussion" through her car window. Yet, the only way it would have been possible to have a "discussion" with the driver through the window is if Petitioner was able to get the other vehicle to pull off the road so he could also stop his vehicle, approach the other vehicle, and have the so-called discussion with the other driver through the window.) Petitioner admitted that his acceleration and U-turn were observed by a police officer. The eyewitness police officer completed a police report in affidavit form, which provided additional details corroborating and supplementing Petitioner's 2020 self-explanation. According to the police report, the officer observed an initial close encounter between Mr. Fernandez's vehicle and the "victim's" vehicle. After the initial close encounter, in which no contact was made, Mr. Fernandez "began to spin his wheels and make a 180[-degree] aggressive turn to go after victim. While doing so and on his cellular phone, he jumped the concrete median and began to chase the victim." The police officer followed the two vehicles. The officer observed Mr. Fernandez pull his 2000 black Ford Expedition alongside of the victim and then swerve to cut off the victim's vehicle, forcing the victim to veer her vehicle off the road to avoid a collision. When Mr. Fernandez had successfully maneuvered the victim to stop her vehicle, he also stopped, exited his vehicle, and confronted the victim in her vehicle. The victim put her window down, whereupon Mr. Fernandez began to scream obscenities at the victim in both English and Spanish. At that point, the officer intervened. The officer directed the victim to sit on the curb and he interviewed her. The officer observed the victim to be visibly shaken. Mr. Fernandez was placed in custody and transported to the police station. The eyewitness officer summarized his observations as follows: "[Mr. Fernandez] displayed a wanton disregard for the safety of other motorists (running red light, jumping median, cutting victim['s] vehicle off)." He concluded the police report with the following addition: "Det[ective] E. Garcia conducted interview of [Mr. Fernandez]. [Mr. Fernandez] admitted to purposely swerving his vehicle into the victim's path to stop the vehicle." In Petitioner's self-explanation to the Board, he characterized his actions as follows: "I made a mistake and accelerated my car toward the [other vehicle] looking for an apology from him [sic]." "I made a mistake when I decide to chase the [other vehicle] and started a discussion with that person. I should no confront him [sic], I should have to continue my way[.]" At the hearing, Petitioner, through counsel, offered two arguments for why the Board should not consider the felony conviction for the road rage incident as a reason to deny Petitioner's application. First, through argument only, counsel asserted that the nolo plea and conviction for felony aggravated assault with a deadly weapon did not involve a crime that is related to the practice of nursing or the ability to practice nursing. Second, Petitioner's counsel raised for the first time6 the argument that the Board should be estopped from asserting the felony conviction for the road rage incident as a reason to deny Petitioner's 2020 application. Counsel argued that Petitioner would have had to disclose the crime on every biannual license renewal application, in 2003, 2005, 2007, and 2009, until his license was revoked, and the Board should be estopped from raising this crime now because the Board purportedly knew about the crime and did not attempt to revoke or otherwise discipline Petitioner. Petitioner did not offer any testimony regarding whether felony aggravated assault with a deadly weapon is, or should under the circumstances be considered, a crime related to the practice of nursing or the ability to practice nursing. Respondent presented testimony of Lisa Johnson, accepted as an expert in the practice of professional nursing. Ms. Johnson offered the opinion that Petitioner's road rage crime was related to the practice of or the ability to practice nursing. Her opinion was credible, was not refuted, and is credited. Ms. Johnson based her opinion on two separate rationales. First, she explained that, based on her review of Petitioner's application, including the police report, Petitioner's conduct was "very disturbing." She opined that Petitioner's extreme reaction out of anger upon being upset by another driver, endangering other motorists, was contrary to the character and qualities required for the practice of professional nursing. She explained the importance of nurses always keeping a level head. Nurses must always 6 Consistent with his hearing request, Petitioner stated his position in the joint Prehearing Statement in a single point, as follows: "Mr. Fernandez [sic] conviction for aggravated assault was not related to the practice of nursing." critically think, and make decisions that are educated and informed, rather than driven by emotion. She added that one of the most surprising things was that the felony occurred just 19 days after Petitioner's RN license was issued, when he had just taken the oath and the expectations of the nursing profession were still fresh in his mind. Ms. Johnson also pointed to the background screening laws applicable to a Level 2 screening, which Petitioner would have to undergo in order to work as an RN in health care facilities and virtually all other health care settings. Petitioner's nolo plea and conviction for felony aggravated assault with a deadly weapon is a disqualifying offense, meaning that Petitioner would be disqualified from working as a nurse in a hospital, nursing home, assisted living facility, home health agency, health care clinic, or other health care settings (such as nurse registries) that are required to conduct background screening of persons who provide personal care or services directly to patients/residents/clients. Petitioner would have the option of applying to the Board for an exemption from disqualification, and in such an application, he would have to provide clear and convincing evidence that he is rehabilitated. No evidence was offered by Petitioner to indicate that he ever sought and obtained an exemption from disqualification from the Board because of his disqualifying offense, as should have been necessary for him to be providing patient care to home health agency patients. No evidence was offered by Petitioner to support the claim that the Board was aware of the crime, as the predicate for counsel's new estoppel argument. The only testimony from Petitioner about this subject was that he renewed his nursing license every two years, and at the time he renewed his application in 2003, "the department was aware" of his crime. (Tr. 17, emphasis added). He referred vaguely to having "sent in all the paperwork" and every two years they allowed him to continue working as a nurse. Petitioner did not testify that the Board had knowledge of the road rage incident or resulting nolo plea/conviction at any point before the application he filed in 2020 at issue in this case. No evidence was offered by Petitioner of: (1) his actual RN license renewal applications; (2) whether the RN license renewal applications were submitted to the Department of Health (as he seemed to suggest) and not to the Board7; or (3) the extent to which he did or did not disclose the felony conviction, submit a detailed self- explanation, or submit the court records, including the police report, as he did in the 2020 application at issue here. Petitioner's testimony falls short of proof as to what, if any, disclosures he made to the Board prior to 2020. There is no evidentiary basis to support a finding that the Board had prior knowledge of the road rage incident or felony conviction resulting from that incident. Requirement for Recent Professional Recommendations In response to disclosures of disciplinary history and criminal history in his 2020 application, the Board required Petitioner to submit three recent professional letters of recommendation. "Recent" was defined as "written within the last year." In the de novo administrative hearing, it was incumbent on Petitioner to offer non-hearsay evidence serving the same purpose as the Board's requirement to submit recent professional letters of recommendation: to overcome the implication from the disciplinary history and criminal history that Petitioner is unfit for licensure. Completely lacking at the hearing was any evidence regarding why Mr. Fernandez should now be trusted to not react with anger or rush into action based on emotions, as he did at the beginning and the end of his RN licensure tenure in Florida. In 2014, the Board determined that Petitioner's rash actions represented a danger to the public. No evidence was presented 7 Respondent confirmed in its PRO that RN license renewal applications are submitted to and processed by the Department of Health, not the Board. regarding what Mr. Fernandez has been doing since his license was revoked, to overcome the finding made in the 2014 Final Order. No character witnesses were offered. Mr. Fernandez did not present testimony, for example, of the three authors of the letters of support submitted with his application, to provide non-hearsay testimony offering recent positive professional support to potentially show rehabilitation despite his prior RN license revocation and his prior felony conviction.8 Ultimate Findings of Fact Mr. Fernandez did not meet his burden of presenting evidence to demonstrate his qualifications for multistate RN licensure by endorsement for which he has applied. 8 The three letters in Petitioner's application are hearsay and cannot be considered in this proceeding. Even if their hearsay nature were not an impediment, there are serious questions as to their reliability as "recent" letters. For example, one letter appears to be a recommendation for a job as a First Surgical Assistant (which presumably would require an active license that Mr. Fernandez has not had for at least seven years). In it, the author stated vaguely that "I have known Manuel Fernandez for the past number of years" and that Mr. Fernandez "has been working for Sunrise Home Health Care, Inc. for the past years as a RN with excellent evaluation." The letter was typed in its entirety except for the signature and the date, 6/20/2020, which was handwritten at top—a very curious form for a professional letter of recommendation. As of June 2020, it had been many years since Mr. Fernandez worked at the home health agency as an RN. Either the author was intentionally misleading by describing what sounded like Mr. Fernandez's current and recent experience as an RN, or the letter was written many years ago. Similarly, in another letter, the author described "Nurse Fernandez" as caring of his patients and dedicated to his job. The author stated she has known Nurse Fernandez for four years. The letter was typed, including the word "Dated:" typed just above the signature. However, the date itself was not typed; instead, 7/12/2020 was handwritten next to the typed "Dated:." But if the letter was written in July 2020, the author could not have vouched for "Nurse Fernandez" or described him as caring of his patients, because the author stated she only knew him for four years and Mr. Fernandez was not licensed to practice nursing or care for patients between July 2016 and July 2020. Here too, the impression from the letter's contents is that the letter was written many years ago, and the handwritten date was a fabrication. So too, the third letter was typewritten except for the date, 9/10/2020, added in handwriting. The third letter described Mr. Fernandez as a joy to work with, well-liked by his nursing colleagues, and a resource for "other" nurses to help with difficult cases. The description is in the current tense, as if Mr. Fernandez was currently working as a nurse at the time the letter was written. Once again, the handwritten date is incongruous, both as to form of a professional letter of recommendation, and as to the substance, since Mr. Fernandez could not have been practicing nursing in September 2020 or at any time for years before then. The Board proved that Petitioner had his RN license permanently revoked based on violations of Florida law, for actions that represented a danger to public. The Board proved that Petitioner pled nolo contendere and was convicted of a felony crime related to the practice of nursing or the ability to practice nursing. Mr. Fernandez did not prove that the Board had prior knowledge of his nolo plea and conviction. Mr. Fernandez offered no evidence to overcome the fitness concerns from his disciplinary history and criminal history. Instead, he continued to argue with the prior determinations, and demonstrated a lack of candor and deflection of responsibility to others in so doing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing issue a final order denying the application of Manuel Fernandez for multistate registered nurse licensure by endorsement. DONE AND ENTERED this 9th day of July, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2021. COPIES FURNISHED: Lawrence E. Besser, Esquire Samek and Besser, P.A. 1200 Brickell Avenue, Suite 1950 Miami, Florida 33131 Marlene Katherine Stern, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399 Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 Deborah McKeen, BS, CD-LPN Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399-3252
