The Issue Whether the Respondent discriminated against the Petitioner by failing to promote the Petitioner as set forth in the claim.
Findings Of Fact The Petitioner was an employee at the South Florida State Hospital (the Hospital) from October 15, 1979, until approximately October 31, 1998. On the latter date, a private company assumed full management of the hospital. From that time neither the Respondent nor its predecessor (Florida Department of Health and Rehabilitative Services) has maintained management or administration of the facilities. Prior to October 31, 1998, the Hospital was operated by a State of Florida agency. As of October 31, 1998, the Petitioner ceased to be a State of Florida employee. The Petitioner is a black female. On or about May 6, 1997, the Petitioner applied and interviewed for a job at the Hospital. She sought the position of Unit Treatment and Rehabilitation Director. At that time, the Hospital advertised two open positions for Unit Treatment and Rehabilitation Director. Three applicants were ranked for the open positions. Among the three, the Petitioner was ranked third by the selection committee. At or near the same time, the administrator of the Hospital received notice that he would have to cut positions from his budget. This slashing of employee positions was in response to budget demands created at the agency level. It had nothing to do with the job performances of employees at the Hospital. In fact, the Petitioner has always received favorable employee performance evaluations. She was a valued employee at the Hospital and was considered to be hard working by peers and supervisors alike. Nevertheless, when faced with the directive to cut positions, the administrator elected to eliminate open or unfilled positions. Pertinent to this case is the slot that the Petitioner would have filled had it not been eliminated. At least under one theory, the Petitioner would have been promoted to Unit Treatment and Rehabilitation Director had the position not been deleted. The promotion would have happened because one of the higher-ranked applicants for the job chose to reject the Hospital's offer of employment. Thus as the third-ranked applicant, the Petitioner would have been selected. Notwithstanding the foregoing, the Petitioner maintained she should have received the position of Unit Treatment and Rehabilitation Director that was filled by an individual named Driscoll. She maintains that although Driscoll was the highest-ranked applicant, she was equally or better qualified for the promotion. Driscoll is a white male. Prior to his employment at the Hospital, Driscoll had served as the director of a short-term residential facility. He had also been the director of case management for a hospital and had supervised other case managers and support staff. The Petitioner had no similar or equivalent supervisory experience. The Petitioner had never supervised employees to any level of supervision as demonstrated by Driscoll at the time of the selection process. The advertised opening sought an individual with "a bachelor's degree and four years of professional direct services experience in a social, rehabilitative or health care treatment program, two of which must have been in a supervisory capacity." The Hospital's consideration of the Petitioner's role as a "lead worker" was a generous allowance. Technically, the Petitioner did not meet the job description requirements. Additionally, the Petitioner's advanced degree did not qualify her for the position of Unit Treatment and Rehabilitation Director. The advertisement for the position of Unit Treatment and Rehabilitation Director provided that a: . . . masters degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for one year of the required [sic] nonsupervisory experience. A doctorate degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for the required [sic] nonsupervisory experience. The Petitioner did not hold either the referenced master's degree or doctorate degree. The Petitioner was not an equally qualified or a superiorly qualified applicant for the position of Unit Treatment and Rehabilitation Director. Nevertheless, when she was not chosen for the position the Petitioner wrote a memorandum to the Commission to complain about the selection of Driscoll. The memorandum stated: A blatant campaign of racism reigns at South Florida State Hospital. Most recently, the hospital advertised for the position of Unit Treatment and Rehabilitation Director. Two (2) positions were to be filled as a result of that advertisement. Qualified applicants were interviewed from within the hospital. There were two (2) Afro-American and three (3) Anglo-Saxon applicants. Of the two (2) Afro-American applicants applying, I met all of the qualifications to fill one (1) of the positions. Over the dissent of others on the interviewing committee, Patricia Espinosa Thomson (acting hospital administrator) re-advertised the position(s). On September 12, 1997, the Commission acknowledged receipt of the Petitioner's Memorandum of June 27, 1997, and, in accordance with a Worksharing Agreement with the Equal Employment Opportunity Commission (EEOC), the complaint was forwarded to the Miami District Office of the EEOC. This complaint became the subject matter of the instant case. The Commission's notice to the Petitioner provided: Within 35 days of notice of EEOC's Letter of Determination regarding the above referenced complaint, you may request the FCHR to review the final finding and orders of the EEOC by requesting a Substantial Weight [sic] Review. There is no evidence regarding whether the Miami District issued a Letter of Determination. It is undisputed, however, that the Commission did not issue its Notice of Determination until October 9, 2001. The Notice of Determination represented that the Respondent was advised of the Petitioner's claim in January of 1998. The Notice of Determination also recognized that the Respondent had asserted that the claim was "time-barred" and that it would not provide information regarding the claim. Based upon the inference found in Rule 60Y-5.003(4), Florida Administrative Code, the Commission entered a determination of cause. The Commission apparently did nothing to timely investigate the complaint, did not act within 180 days of its filing, and did not notify the Hospital that its records should be maintained in connection with the allegations of this case. When the Hospital went to private management all public records that had been maintained were stored or destroyed according to agency rules. There was no effort to conceal or destroy records related to this matter. The Hospital administrators faced the daunting tasks of trimming the Hospital FTEs, preparing for and transitioning to the private company, and organizing records for storage. There was no effort to single Petitioner out for discriminatory purposes. When eventually questioned regarding this case, the Department elected not to participate in the investigation as under the then known precedent it was not required to do so. The Department's decision predated Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Both parties claim prejudice as a result of the delays in pursuing this cause. The Petitioner maintains that records that would have helped her assessment of the matter have been either lost or destroyed. The Respondent maintains that witness unavailability, loss of records, and the fact that it does not even manage the Hospital anymore compounds its inability to appropriately respond to the Petitioner's claim. What is certain is the fact that the Department cannot award the position to the Petitioner. Further, even at the time in question, the Hospital could not have awarded the position to the Petitioner since the position had been eliminated. The only way the Petitioner could have gotten the position would have been if Driscoll had been removed. And, as previously noted, the Petitioner was not equal to or superior to Driscoll in her qualifications for the position. In June 2002, the instant case was heard on a motion to dismiss. That motion was granted. The conclusions of law from the Recommended Order of Dismissal found that the Division of Administrative Hearings does not have jurisdiction over the subject matter of this proceeding. Despite that conclusion, the Commission entered an Order Remanding Petition for Relief from an Unlawful Employment Practice. Accordingly, this matter was re-opened and scheduled for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim. DONE AND ENTERED this 25th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Hearings 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 this 25th day of March, 2003. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy A. Fleischer, Esquire 4801 South University Drive, Suite 3070 Davie, Florida 33328 Sondra R. Schwartz, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
The Issue Whether Respondent failed to protect one of the residents of its facility from sexual coercion. Whether Respondent failed to report the alleged violation immediately to the administrator.
Findings Of Fact Petitioner is the state agency charged with licensing and regulating nursing homes in Florida, under state and federal statutes. Respondent is a licensed nursing facility located in Orlando, Florida. Respondent is a small not-for-profit facility, overseen by a voluntary board of directors. Resident 2 is a Hispanic male, 57 years of age, who speaks English and Spanish fluently. He was a self-admitted resident at Respondent's nursing home facility during the relevant time period. Respondent is a small, not-for-profit facility, overseen by a voluntary board of directors. Respondent receives its funds to operate through various types of sources such as United Way, City of Orlando, Orange County, and many foundations. At all times material hereto, Petitioner is the state agency charged with licensing of nursing homes in Florida and the assignment of a licensure status. The statute charges Petitioner with evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, Petitioner is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities. Pursuant to the statute, Petitioner must classify deficiencies according to the nature and scope of the deficiency when the criteria established under the statute are not met. The classification of any deficiencies discovered is determinative of whether the licensure status of a nursing home is "standard" or "conditional." The evaluation, or survey, of a facility includes a resident review and, depending upon the circumstances, may consist of record reviews, resident observations, and interviews with family and facility staff. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services Form 2567, titled "Statement Deficiencies and Plan of Correction" and is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation and indicates the federal scope and severity of the noncompliance. Agency surveyors use the "State Operations' Manual," a document prepared by the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services, as guidance in determining whether a facility has violated 42 Code of Federal Regulations (C.F.R.), Chapter 483. In March 2003, Petitioner conducted a survey to investigate a complaint that Respondent failed to protect a resident from sexual coercion. The allegation of the deficient practice was based upon an incident involving Resident 2. Pursuant to 42 C.F.R. Section 483.13(b), a nursing facility must assure that a resident has the right to be free from verbal, sexual, and mental abuse. Failure to do so constitutes a deficiency under Florida Statutes. At hearing, Petitioner presented the testimony of Jane Woodson, nursing program specialist, employed by Petitioner. Woodson testified that she does state and federal surveys in both state and federal licensure and federal institutions to identify or define any noncompliance. She visited Respondent's facility on or about March 26, 2003, and prepared a 2567 form based on her observations, interviews, and record review. It details the results of her investigation, including her interviews with the director of nursing, the administrator, the social worker, the compliance officer, a licensed practical nurse (LPN), and the assistant director of nursing. She also toured the total facility, observed its residents and also observed Resident 2. Woodson observed that Resident 2 was a well-dressed, alert male, and she spoke to him about the incident on March 15, 2003. Woodson did not have an interpreter present at any time when she interviewed Resident 2, nor did she consider it necessary to do so. At no time did she have any concern that Resident 2 was not mentally competent to understand her when she interviewed him. Woodson was not aware that Resident 2 signed his own financial responsibility forms, patient's rights statement, or that he voluntarily checked himself into the facility. She was not aware that Resident 2 made his own medical decisions in the facility. Following her investigation, Woodson conducted an exit interview with the administrator, the director of nursing, the assistant director of nursing, the social worker, and the compliance offer. Woodson included in her report a document filled out by Sharon Ebanks (Ebanks), registered nurse (RN), but she did not personally interview Ebanks. She also did not interview Marilyn Harrilal, LPN, nor did she interview the employee involved in the incident. She advised the administrator of her finding a Class II deficiency and provided a correction date of April 17, 2003. She also concluded that this was an isolated incident. Ebanks was the weekend charge nurse on March 15, 2003, and was in charge of the facility on that date. Ebanks was working on the north wing when she was called by Mr. Daniels, a LPN working on the south wing. Daniels told Ebanks about the alleged incident between Resident 2 and the staff person. Ebanks then called Resident 2; the employee, Marcia Dorsey (Dorsey); and the certified nursing assistants (CNAs), Ms. Polysaint and Ms. Mezier (first names not in the record), who had witnessed the incident, to the green room. She also asked Harrilal to act as a witness to her interviews with the individuals involved. Ebanks first spoke to Resident 2 and Dorsey, both of whom stated that nothing had happened. She then questioned the two CNAs about what they had witnessed. Ebanks concluded, after interviewing both the participants and the witnesses, that the incident was not abuse, but rather, was inappropriate behavior on the part of both Resident 2 and the employee. She based this conclusion on the fact that Dorsey is a trainable Dows Syndrome individual, who was supposed to be working when the incident occurred. Ebanks concluded that Resident 2 had not been abused or hurt in any manner and had participated voluntarily. Ebanks noted that Resident 2 makes his own medical decisions, is considered to be mentally competent, has never been adjudicated mentally incompetent and has not had a legal guardian appointed for him. Ebanks concluded that Resident 2 had not been abused. Ebanks testified that she completed a Resident Abuse Report on March 20, 2003, concerning the incident, after being asked to do so by Respondent's compliance officer. The resident abuse report was admitted into evidence as Respondent's Exhibit 1. At the time of the initial investigation of the incident, Ebanks asked Harrilal to accompany her to the green room. While there, Harrilal listened as Ebanks first questioned Resident 2 and then Dorsey. Both stated that nothing happened. Harrilal then witnessed Ebanks question the CNAs, Polysaint and Mezier. Woodson did not interview Harrilal during her investigation. Ann Campbell, RN, a nurse for more than 38 years, was functioning in the role of assistant director of nursing on March 15, 2003. She was not in the facility on that day and was not made aware of the incident on the date of its occurrence, but became aware when she returned to work. Campbell is familiar with Resident 2. He was initially admitted with a diagnosis of alcohol abuse and dementia. She observed that he was a little confused and forgetful when first admitted, but has since became more alert and responsive. Michael Annichiarico, administrator of the facility and custodian of records, including medical records and personnel files, reviewed the personnel file of the employee, Dorsey. There were no disciplinary actions or counseling prior to the incident of March 15, 2003. Annichiarico is familiar with Resident 2 and has interacted with him. Annichiarico testified that, according to the resident's medical record, Resident 2 has never been declared mentally incompetent and that he makes his own medical and financial decisions. The Progress Note of Gideon Lewis, M.D., dated October 9, 2003, with transcription, was admitted into evidence as Respondent's Exhibit 2 and indicates that Resident 2 is mentally competent and is responsible for his actions as his cognitive functions are intact. Patricia Collins, RN, testified as an expert in the areas of nursing, long-term care, nursing home rules and regulations, and survey procedures. Collins is a RN, currently working in consulting work. She reviewed documents related to the incident. She went to the facility on two different occasions and interviewed the staff. She also reviewed the documents contained in the report of Woodson's survey. Collins interviewed the two CNAs, Ebanks, Resident 2, the medical records custodian, the director of nursing, the social worker, and Harrilal. She spent approximately four to five hours in the facility. After speaking with Resident 2, Collins concluded that he was cognitively intact and very alert. He appeared to be mentally competent. Before interviewing Resident 2, Collins reviewed his resident chart and the documents used to sign himself into the facility. She also reviewed physician's orders for medication, progress notes, nurses' notes, the MDS and the care plan. Collins testified that she reviewed the resident's financial responsibility statement and patient's rights statement, both of which were signed by the resident himself. The resident had no legal guardian. Collins concluded that during the incident of March 15, 2003, there was some inappropriate behavior that needed to be addressed and that this behavior was properly addressed by staff. The inappropriate behavior was the observation of hugging and kissing between Dorsey and Resident 2 in an empty resident's room while the employee was on duty. Collins was of the opinion that the behavior was mutual and not abuse. Collins found no reason to conclude that any harm had been done to Resident 2. Collins testified that a nursing home resident has the right to associate with whomever he desires. He also has the right to have voluntary and willing sexual contact with other people. The inappropriateness in this incident was due to the fact that Resident 2 had involvement with someone with mental deficits. The incident was inappropriate on the part of the employee as well, since she was participating in it during her working time. Collins disagrees with the findings of Petitioner's surveyor. Collins testified that the investigator should have determined the abuse allegation was unfounded. According to Collins' expert testimony, the facility staff acted appropriately. The CNA who initially observed the activity called another CNA as a witness. They then went to their supervisor, who then went to the ranking nurse at the facility at that point in time, which was Ebanks. Ebanks questioned the employee, Resident 2 and the witnesses. She had the presence of mind to have a witness there as well, which was Harrilal. Ebanks made the determination, based on her nursing judgment and in her authority as nurse in charge of the facility on that day, that there was inappropriate behavior on behalf of Resident 2 and the employee. She put a care plan in place as to Resident 2, separated the employee and Resident 2, and sent the CNAs back to work. Collins testified there was no need to report the incident to the Department of Children and Family Services because there was no evidence of abuse or harm to Resident 2. Collins' testimony is found to be credible. Based on all the evidence, it is found and determined that an incident occurred at Respondent's facility on Saturday, March 15, 2003, at approximately 11:00 a.m., involving Resident 2 and a staff employee of Respondent, Dorsey. Resident 2 and the employee were seen by staff employees sitting on a bed hugging and kissing each other in a resident's room that was not being used at the time. Two CNA employees witnessed and reported the incident to the charge nurse. Ebanks was the charge nurse on duty on March 15, 2003. Ebanks was advised of the incident shortly after it occurred and interviewed both Resident 2 and the employees involved, as well as the employees who witnessed the incident. The interviews were conducted in the presence of Harrilal. She completed a Resident Abuse Report on March 20, 2003, at the request of the risk manager within four business days of the incident, and the administrator was advised of the incident on the first business day after the incident. Resident 2 was alert and oriented on the date of the incident. Although he had a low level of dementia, he was mentally competent at the time of the incident. He does not meet the definition of an "elderly person" or "vulnerable adult" under Chapter 415, Florida Statutes.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order of dismissal of the Administrative Complaint be entered in this case. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004. COPIES FURNISHED: George F. Indest, III, Esquire The Health Law Firm Center Pointe Two 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact On and after May 29, 1978, respondent Patricia Bose Haischer has been licensed by petitioner as a licensed practical nurse. She holds license No. 0482051. On May 1, 1981, an information was filed in the Circuit Court for the Sixth Judicial Circuit in Case No. CRC 8103052 CFANO (Pinellas County) charging respondent with "knowingly. . .commit[ting] a lewd and lascivious act in the presence of Yvonne Moir, a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the presence of. . .Yvonne Moir. . .but without intent to commit sexual battery upon. . .Yvonne Moir." Petitioner's Exhibit No. 2. On her plea of guilty, respondent was adjudicated guilty of violating Section 800.04, Florida Statutes (1981), on August 19, 1981; and, on the same date, respondent was sentenced to twelve years' imprisonment. At the time of the hearing, respondent was confined at the Florida State Prison for Women. According to respondent's uncontroverted testimony, elicited in petitioner's case, she never fondled Yvonne Moir but was present and undressed while her husband had sexual intercourse with the child; she acted under the domination of her husband (who is now himself incarcerated for sex offenses) and was not altogether well emotionally at the time. Yvonne Moir was not in respondent's care as a nurse when these events transpired. Respondent's misbehavior evinced a disregard for Yvonne Moir's emotional health and reflects adversely on respondent's ability to practice nursing, for that reason. This opinion was expressed by a nurse with eighteen years' experience who testified for petitioner without objection from respondent. As a nurse, respondent has never harmed a patient or put a patient in jeopardy. She has had good recommendations from anybody who has ever supervised her, and one supervisor called her "trustworthy and dependable." During her imprisonment, respondent has visited a psychologist on a regular basis. She feels better and more confident about herself than she did at the time of the offense.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent suspend petitioner's license for two (2) years. DONE AND ENTERED this 20th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 April, 1982. COPIES FURNISHED: Patricia B. Haischer Box 202 F.C.I. Lowell, Florida 32663 William R. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING IN RE: PATRICIA MARIE B. HAISCHER, L.P.N. CASE NO. 0017303 License No. 0482051 DOAH NO. 81-3149 /
Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
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
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In 1975, when she was 36 years of age, Petitioner was dating a married man. When the man's wife found out about her husband's extramarital affair, she began to harass Petitioner and members of Petitioner's family. On March 4, 1975, Petitioner was sitting in her vehicle with her then 17-year old son in the driveway of her home. She was about to leave to take her son to work when her boyfriend's wife drove up and blocked the driveway. Petitioner's son got out of the car and asked the wife to move her vehicle. The wife responded by making what Petitioner perceived to be an "ugly" gesture that was directed to Petitioner's son. Petitioner reacted in anger to the wife's response. She exited her vehicle and physically attacked the wife, bloodying the wife's nose. Police officers arrived on the scene and arrested Petitioner. Petitioner was charged with, and on April 22, 1975, convicted of, aggravated assault as a result of this March 4, 1975, incident. As punishment for committing this crime, she was directed to pay a $50.00 fine and court costs. Petitioner recognizes that her physically aggressive behavior on March 4, 1975, was inappropriate. She is remorseful and repentant. Petitioner has not committed any similar unlawful acts of violence in the more than 22 years since the March 4, 1975, incident. In 1980, Petitioner was arrested and charged with two counts of resisting a law enforcement officer without violence after she had intervened in an altercation involving her son and several police officers, but the charges against her were ultimately dismissed. Petitioner is a certified nursing assistant. She began working as nursing assistant approximately 30 years ago. As a nursing assistant, Petitioner has assisted individuals (in their homes and in institutional settings) needing help in performing their activities of daily living. She has provided such assistance without incident, notwithstanding that she has had to care for some individuals who have been quite difficult, including certain residents of South Florida State Hospital, a state-operated mental health facility, where she worked from 1981 through 1991 (as an employee of two different private nursing agencies with whom the hospital had contracted to provide nursing assistant services) and from January 24, 1997, to July 23, 1997 (as an employee of the hospital).2 There were occasions during the time she worked at South Florida State Hospital that residents would become physically aggressive toward her. On these occasions, Petitioner reacted, not in kind, but rather with restraint and in a professional manner. On July 23, 1997, after a background screening investigation conducted by the Department had revealed that she was not qualified to serve in her position at South Florida State because of her 1975 conviction for aggravated assault, and following the Department's preliminary denial of her request for an exemption from such disqualification, Petitioner was terminated from her position at the hospital. Petitioner has been unemployed since July 23, 1997. Although she has been unable to find work as a nursing assistant, Petitioner still continues to perform nursing assistant services (without compensation) for her elderly aunt, for whom she has cared for the past five years. Based upon Petitioner's history since the March 4, 1975, incident that led to her arrest and conviction for aggravated assault, it appears that she has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.
The Issue Whether Mr. Ross' license as a practical nurse in the State of Florida should be issued conditioned on a 1 year period of probation?
Findings Of Fact Mr. Ross applied for licensure by examination as a licensed practical nurse in 1986. By Order dated January 13, 1987, the Board denied Mr. Ross' application. The Board denied the application based upon its conclusion that Mr. Ross was guilty of violating Section 464.018(1)(c) and (h), Florida Statutes. In its Order of January 13, 1987, the Board indicated that it would reconsider Mr. Ross' application in 6 months, upon the request of Mr. Ross. Mr. Ross requested an informal hearing pursuant to Section 120.57(2), Florida Statutes, to contest the Board's Order of January 13, 1987. The informal hearing was held on February 5, 1987. At the request of the Board, Mr. Ross submitted a psychological evaluation conducted by Philip R. Yates, Ph.D. Mr. Ross also submitted an additional psychological evaluation conducted by A. de la Torre, M.D. Based upon the Board's review of the evaluations performed by Dr. Yates and Dr. de la Torre, the Board again concluded that Mr. Ross was guilty of violating Section 464.018(c) and (h), Florida Statutes. The Board, therefore, denied Mr. Ross' application. The Board agreed, however, that it would reconsider Mr. Ross' application upon submission of a satisfactory third evaluation by a Board-certified psychiatrist specializing in psychosexual counseling. The person selected to perform the third evaluation was to review the previous evaluations of Dr. Yates and Dr. de la Torre. In order for the Board to reconsider its denial of Mr. Ross' application, the Board indicated that the third evaluation would have to resolve the conflicts between the first two evaluations and include a recommendation that Mr. Ross is able to engage in the safe practice of nursing. Mr. Ross submitted a third evaluation. The evaluation was conducted by William M. Hunt, III, M.D. Following the submission of the third evaluation, the Board issued an Order dated May 18, 1987. Paragraph 3 of the May 18, 1987, Order provides the following: 3. Applicant has submitted a satisfactory third psychological evaluation which reflects that the evaluating psychiatrist had reviewed the previous reports, which resolves the conflicts between the two previous evaluations, and which includes a recommendation that the Applicant is able to engage in the safe practice of nursing. Based in part on the evaluation of Dr. Hunt, the Board concluded that Mr. Ross' application should be approved. Because of the Board's conclusion that Mr. Ross was guilty of violating Section 464.018(1)(c), Florida Statutes, the Board concluded that "a period of probation is necessary to protect the public..." The terms of Mr. Ross' probation included requirements that Mr. Ross not violate any law, or rule or order of the Board, that he submit written reports to the Board quarterly, that he report any change in residence address, name, employer or place of employment or arrest and that he cause reports to be furnished to the Board by his employer. The period of probation was 1 year. The Board's conclusion that Mr. Ross is guilty of violating Section 464.018(c), Florida Statutes, is based upon Mr. Ross' conviction of exhibition of sexual organs in 1978 and his conviction of an unnatural and lascivious act in 1979. On December 7, 1978, Mr. Ross plead guilty to exhibition of sexual organs in violation of Section 800.03, Florida Statutes. He was found guilty of the offense and fined approximately $117.00. On December 31, 1979, Mr. Ross plead nolo contendere to an unnatural and lascivious act in violation of Section 800.02, Florida Statutes. He was found guilty of the offense and sentenced to thirty days in the Duval County Jail. His sentence was suspended and he was ordered to pay court costs. Mr. Ross was 18 or 19 years of age at the time of his offenses in 1978 and 1979. Mr. Ross was 27 years of age at the time of the formal hearing of this case. Mr. Ross is currently employed as a licensed practical nurse by Kimberly Nurses. Mr. Ross was employed by Kimberly Nurses as a nursing assistant prior to his licensure. Mr. Ross has not experienced any difficulty in his employment as a result of the conditions of probation imposed by the Board. Although Mr. Ross has not sought employment elsewhere, he has not done so because of his concern with the conditions of his licensure. He would like to seek a more permanent position but will not do so until this proceeding is concluded. Mr. Ross' convictions arose as a result of his sexual preference. Mr. Ross is "gay" and at the time of his convictions he frequented public places as a way of meeting others of his sexual persuasion. Although Mr. Ross realizes that he violated the law and accepts the fact that he will always be gay, he has abandoned the "gay life style" of his younger years. The evaluation of Mr. Ross performed by Dr. Hunt resolved the conflicts between the report of Dr. Yates and Dr. de la Torre. Dr. Hunt made the following observations, among others, about Mr. Ross: The evaluation provided no evidence that would indicate that Mr. Ross suffers from any diagnosable mental disorder, according to DSM III criteria. The activities in 1978 and 1979 can best be seen as involving an identity disturbance of late adolescence, a very common condition. Since that time Mr. Ross's history, corroborated with clinical interview, provides evidence of significant personality maturing since that time, and no indications of a pattern of aberrant behavior overtime [sic] that would warrant a diagnosis of a passive-aggressive personality disorder or any other personality disorder. Mr. Ross's approach to the entire licensure process, including his approach and manner during my interview all suggested a fairly high level of personality organization and integration, in spite of his sexual preferences. There is no history, at least in the past seven years, that would indicate any increased probability that Mr. Ross's performance as a nurse would not be in the best interests of the nursing profession nor the patients he serves. Although Dr. Yates's report makes reference to some concerns about his ability to modulate his anger and avoid acting out in problematic, passive- aggressive way [sic], as well as some statements regarding unresolved psychosexual issues, it should be noted that the statements were in the context of the understanding by Dr. Yates at that point of what was meant by having abandoning [sic] life style. In the context of my current evaluation this information was finally judged by me to be similar to a false positive laboratory test. In summary, after what I determined to be an adequate evaluation, I recommend that the applicant, Mr. Ross, is able to engage in the safe practice of nursing and that the board favorably consider his application for licensure in nursing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a license as a licensed practical nurse in the State of Florida be issued to Samuel D. Ross without restriction. DONE and ENTERED this 5th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3123 The Board has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 1-3. 2 4-6 and 12-13. 3 7. 4 9-10. 5 12. 6 13. 7 5-9. 8 10 and 15. 9 16. COPIES Samuel FURNISHED: D. Ross 2583 Minosa Circle North Jacksonville, Florida 32209 Susan Tully Proctor Assistant Attorney General Board of Nursing Suite 1602 - The Capitol Tallahassee, Florida 32399-1050 Judie Ritter Executive Director Department of Professional Regulation 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
