The Issue The issue in this proceeding is whether Respondent committed the offences set forth in the Administrative Complaint and, if so, whether Respondent's nursing license should be disciplined accordingly.
Findings Of Fact The Agency for health Care Administration is the agency charged with the regulatory and prosecutorial duties related to nursing practice in the State of Florida. Respondent, Rachelle Chiaro Vaslowski, holds a nursing license number RN 2913542. Respondent's last known address is 240 Brookline Avenue, Daytona Beach, Florida 32118. Respondent was employed by the Coquina Center (the Center) from February 12, 1997, until her termination on January 7, 1998. On January 6 and 7, 1998, Respondent was working a day shift at the Center as a registered nurse, at 170 North Center Street, Ormond Beach, Florida. Respondent was under the supervision of Barbara Geyer, R.N., Unit Manager for the sub-acute care section of the nursing home. Respondent was assigned to care for patients which included the administration of their scheduled medications. Ms. Geyer testified regarding Respondent's performance of her duties. On Respondent's shift, patients, whom Respondent was caring for, had not received the medication that they were prescribed. Ms. Geyer also observed twenty to thirty cc' s of clear fluid on Respondent's medication cart when this was brought to her attention by Respondent. Respondent told Ms. Geyer, "I've just spilled a bottle of Roxanol, should I take the plunger and suck it back up again." Roxanol is a strong mixture of pain medication, consisting of Morphine and Demerol, used to medicate the terminally ill. Ms. Geyer advised Respondent that the medication had to be appropriately discarded and the correct documents completed regarding its wastage. Ms. Geyer, who has been an R.N. for many years, observed that Respondent had a very confused look on her face. Ms. Geyer went to her Director of Nursing, Kathy Johnson and advised her of the situation. Both women interviewed Respondent regarding the spilling of the narcotic. A hasty inventory also was conducted of Respondent's medication cart. Respondent was the only person on duty with a key to the cart. There were medications for which Respondent had received which were unaccounted for. Two and a half vials of Morphine and 14 Ambien were missing. They also found two vials marked as containing Roxanol. Since this was the medication that was supposed to have been spilled, Ms. Geyer questioned Respondent about it. Respondent replied, "What do you want, there is more than you need?" Ms. Geyer and Ms. Johnson both stuck their fingers in the supposed vials containing Roxanol. Both women testified that one had a bitter taste and the other had no taste at all. Ms. Geyer observed that, in addition to having a dazed look in her eyes, Respondent gave totally inappropriate responses to the questions she was asked when interviewed. Ms. Johnson, the head nurse, testified that she observed Respondent's nursing skills had declined. Respondent forgot to chart medications she administered. This became a pattern. Ms. Johnson identified Petitioner's Exhibit No. 5 as the complaint she had filed with the State against Respondent on February 20, 1998. Ms. Johnson was qualified as a nursing expert based on her education, training, and experience. She observed that Respondent, when interviewed following the spilling incident, was confused and dazed. Questions had to be repeated several times to her. Respondent appeared not to understand the questions. Ms. Johnson described that when Respondent was informed that they were going to do a narcotics count on Respondent's medication cart, Respondent grabbed her belongings and left the facility in haste. She did not clock out. She did not tell anybody she was leaving. She left the keys on the cart and she was out the door. Ms. Johnson opined that this was very unprofessional behavior. The Center's pharmacy policies and procedures were identified by Ms. Geyer. Ms. Geyer explained the policies and procedures regarding controlled substances. Respondent failed to follow the policy and procedure for disposing of controlled substances. As supervising nurse, Ms. Geyer, filled out a narcotics "wasting" report on Respondent spilling of Roxanol. The medication error report was signed by Barbara Geyer. Ms. Johnson also testified that it is a violation of nursing procedures to not account for narcotics properly when you administer or "waste" them. Further, she opined it was unprofessional conduct to work under the influence of narcotics, to take medications that are intended for patients, and not properly chart medications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Board of Nursing enter a final order suspending the license of Respondent to practice until she has satisfactorily completed the IPN program, and, thereafter, place her on a five-year probation to follow her practice. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of April, 2001. COPIES FURNISHED: Michael E. Duclos, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Rachelle Chiaro Vaslowski 240 Brookline Avenue Daytona Beach, Florida 32118 Ruth R. Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether or not medical expenses for a private hospital room and private duty nurses for three days are covered by the Employees' Self Insured Group Health Insurance Plan, as administered by Blue Cross and Blue Shield of Florida. BACKGROUND AND PROCEDURE On January 14, 1987, Dennis Nye, Chief, Office of Insurance, informed petitioner payment of his private hospital room and private duty nursing charges were denied because of a lack of documentation demonstrating that those charges were medically necessary. Petitioner timely submitted a Petition for Formal Administrative Hearing contesting the agency's action. The agency elected to request assignment of the case to a Hearing Officer of the Division of Administrative Hearings. At formal hearing, Petitioner testified on his own behalf and presented the oral testimony of his wife, Rosa L. Davis. Petitioner had admitted three exhibits. Respondent presented the oral testimony of William Seaton. Respondent had admitted three exhibits. No transcript was provided. Respondent timely submitted proposed findings of fact and conclusions of law which are ruled upon in the appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Petitioner waived the opportunity to file any post-hearing proposals.
Findings Of Fact At all times pertinent to the issues contained herein, Petitioner was the husband and eligible dependent of Rosa L. Davis, #127-26-459, an insured employee under the State of Florida Employees Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees. On June 9, 1926, Petitioner was admitted to the Good Samaritan Hospital, West Palm Beach, Florida, by his physician, Dr. Barry Rosenberg, with a diagnosis of acute cholecystitis. Cholecystitis is an inflammation of the gallbladder. Petitioner's gallbladder was markedly gangrenous requiring Petitioner to submit to a cholecystectomy, which is the surgical removal of the gallbladder. This operation was performed by Richard A. Lynn, M.D., who thereby became the primary treating physician. His clinical notes contained in the operative report indicate Petitioner was taken "urgently to the Operating Theatre for surgical intervention." His discharge summary reveals Petitioner was "taken immediately to the Operating Theatre because of physical findings as well as being an insulin diabetic." These documents were not objected to and are part of the Division's file, utilized in the initial decision to turn down the claim. The magic word "emergency" was not used by Dr. Lynn until his June 16, 1926 letter (P-1, p. 17) referred to in finding of fact 13. At admission, Petitioner was a 54 year old "quite obese and large" insulin dependent diabetic. Petitioner had an uneventful post-operative course and was discharged on June 13, 1986 to the care of Drs. Rosenberg and Lynn. Petitioner remained in the Intensive Care Unit of the Good Samaritan Hospital only during the first night following his surgery and was transferred immediately to a private room on the morning of June 10, 1926. Petitioner obtained the services of private duty nurses and a private room on June 10-13, 1926. Petitioner testified that his decision was reached based on the recommendation of his physician, Dr. Richard A. Lynn. On June 10, 1926, petitioner received "around the clock" services of private duty nurses at a daily cost of $256.00. Over the succeeding two days, June 11 and 12, 1926; Petitioner received private duty nursing care totaling $336.00. On the last day of his hospital stay, June 13, 1926, Petitioner was charged $256.00 for private duty nursing care. The private duty nursing care totaled $242.00. In addition to the more prosaic around the clock nursing available at the hospital, the private duty nurses stayed in the private room with Petitioner to monitor his post-operative condition, fed him in the very early stages of recovery when he could not feed himself, bathed him, administered respiratory therapy (pounded on his back to clear his lungs and had him breathing through a tube), administered medications, and got him up and walking on a regular therapy basis. Petitioner's private room rate ($199.00 per day)- exceeded the semi- private room rate ($169.00) by $30.00 per day. The total charge for Petitioner's private room was $90.00. The private room daily rate includes bed, board, and around the clock nursing services. No discount in the daily rate was made because of Petitioner's use of private duty nurses. By letter dated August 7, 1987; Petitioner was advised "the State Plan does not provide benefits for private duty nursing while a patient is admitted as an inpatient to a hospital facility." William Seaton, a Benefits Analyst of the Office of Employees' Insurance, Department of Administration, testified that the State Plan does cover private duty nursing care as well as private rooms, if they are medically necessary. This requirement of "medical necessity" is not specifically disclosed or defined in the synopsized informational summaries provided to insureds but is set out in its Benefit Document as covered in the following Conclusions of Law. The Benefit Document is available to insureds if they seek it out. Without objection, Petitioner offered the statements from Dr. Lynn, which are contained in a letter dated June 16, 1926 (P-1; p. 17). Respondent had admitted a December 16, 1926 letter of Dr. Lynn (R-2). These letters establish the medical necessity for the private room and special nursing services. Dr. Lynn stated in his June 16, 1926 letter that it was . . . at my recommendation and in my judgment as his physician and surgeon that private duty nurses and a private room were absolutely necessary . . . [they] aided in the well-being and post-operative care of the patient . . . it was my feeling that private duty nurses and a private room were essential in the patient's management and eventual outcome and it was at my request rather than the patient's that this be enacted. In This December 16, 1926 letter, Dr. Lynn emphasized much of the foregoing and further stated, I totally believe that it was with this outstanding nursing that his course was uneventful and expedited being therefore cost effective in allowing his hospitalization to be shortened. The nurses assisted in his ambulation at the time and with his diabetes management. It is my unequivocal feeling that this again aided in his rapid recovery. Respondent's witness, Mr. Seaton, was not qualified as a medical physician to render expert evidence as to "medical necessity." He deferred to Dr. Dever, the Plan's medical reviewer. The only letter from Dr. Dever merely amounts to a request for more information (R.3). Petitioner has demonstrated no entitlement for $8.00 in copying costs attendant upon submission of his claim.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Administration enter a Final Order paying the claimed benefits in the respective percentages allowed as "medically necessary." DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, 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 1st day of October, 1987. APPENDIX Petitioner submitted no proposals. The following rulings are made upon Respondent's proposed findings of fact (FOF): Covered in FOF 1. Covered in FOF 2. Covered in FOF 4. Covered in FOF 5. Rejected and modified to conform to the evidence as a whole in FOF 6. The introductory clause is rejected as giving a false impression of cause and effect as discussed in FOF 5, 8, and the Conclusions of Law. The remainder of the proposal is accepted. Covered and expanded to conform to the evidence as a whole in FOF 8. Covered in FOF 9. Covered in FOF 10. Covered in FOF 11. 711. Covered in FOF 12. 12. Rejected as covered in FOF 13-14 and the Conclusions of Law which correctly reflect the evidence as a whole and the weight to be afforded that evidence. COPIES FURNISHED: Richard S. Davis 3901 36th Court, Apt. 212 West Palm Beach, Florida 33407 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether Petitioner is entitled to reinstatement of his license as a registered nurse in the State of Florida.
Findings Of Fact Petitioner is a nurse licensed by the Florida Board of Nursing, having nursing license number RN 2651872. On June 3, 1998, an Administrative Complaint was filed against Petitioner in Case No. 1998-00739, asserting that Petitioner engaged in unprofessional conduct in violation of Section 464.018(1)(8), Florida Statutes. The parties entered into a Settlement Agreement and on March 3, 2000, a Final Order was filed by the Board of Nursing approving the Settlement Agreement and imposing one year of probation. Pursuant to an Order to Show Cause, Petitioner appeared before the Board of Nursing in August 2000. By Order filed September 25, 2000, the Board of Nursing extended Petitioner's probation for six months and required him to obtain an evaluation coordinated by the Intervention Project for Nurses (IPN) within six months. On approximately March 29, 2002, an Administrative Complaint was filed against Petitioner in Case No. 2001-12091, alleging that Petitioner had engaged in unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, and violated the terms of the Final Order in Case No. 1998-00739, in violation of Section 456.072(1)(q), Florida Statutes. On October 28, 2003, the Board of Nursing entered a Final Order with respect to Case No. 2001-12091. The Final Order reprimanded Petitioner; suspended Petitioner's license for a period of three years; required him to undergo an evaluation coordinated by PRN; and imposed a $1,000.00 administrative fine. Specifically, the Final Order provided: The license of Hubert H. Herring is hereby reprimanded. The licensee, Hubert H. Herring, is suspended for three (3) years and thereafter until she/he personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing. That demonstration shall include at least an in-depth psychological evaluation coordinated through the Intervention Project for Nurses, with an MMPI or other appropriate testing from a psychiatrist, psychologist, or other licensed mental health counselor experienced in the treatment of addiction. The licensee shall supply a copy of this Order to the evaluator. The evaluation must contain evidence that the evaluator knows of the reason for referral. The evaluator must specifically advise this Board that the licensee is presently able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained. The licensee must also submit prior to appearance before the Board a reentry plan, proof of continued treatment and counseling if recommended in the psychological evaluation, and demonstration of two years of documented continuous drug free/alcohol free living. The Board reserves the right to impose reasonable conditions of reinstatement at the time the licensee appears before the Board to demonstrate her/his present ability to engage in the safe practice of nursing. Petitioner appealed the Final Order and on January 28, 2005, the First District Court of Appeal affirmed the Final Order in Case No. 1D03-5084. The mandate of the district court issued February 15, 2005. See Herring v. Department of Health, 891 So. 2d 1167 (Fla. 1st DCA 2005). No stay of the penalty was sought during the pendency of the appeal. On November 18, 2004, the Department of Health filed an Administrative Complaint against Petitioner in Case No. 2004- 01520, alleging a violation of the Final Order in Case No. 2001- 12901. On or about June 29, 2005, the Board of Nursing filed a Final Order in Case No. 2004-01520, revoking Petitioner's license. Petitioner appealed this Final Order. The Department of Health requested the First District Court of Appeal to relinquish jurisdiction to the Board of Nursing because the penalty of revocation was outside the Board's disciplinary guidelines. The Court granted the Motion to Relinquish Jurisdiction and on January 10, 2006, the Board vacated the Final Order revoking Petitioner's license. On that same day, the Board issued a new Final Order in Case No. 2004- 01520, that reprimanded Petitioner's license; fined him $250 and imposed investigative costs of $1,592.21; and suspended Petitioner's license until he made payment of the fine and costs of the most recent Final Order and "demonstrates compliance with each and every term of the Final Order in Case No. 2001-12091 filed on October 28, 2003." On February 20, 2006, the First District Court of Appeal dismissed the appeal as moot in light of the vacation of the Final Order being appealed. Petitioner has not been authorized to practice nursing in the State of Florida since October 28, 2003, some four and a half years ago. No evidence was presented at hearing to show whether Petitioner has attended continuing education courses during this time or taken any steps to keep his nursing skills and knowledge up to date. Petitioner submitted the deposition of Dr. Bernard, a physician with whom he worked prior to the suspension of his license. He also presented the testimony of Karen Clark, the staffing coordinator at Tandem Rehabilitation Center. Ms. Clark served in that capacity from December 2002 through August 2004, and knew Mr. Herring during her employment there. According to her testimony, Mr. Herring was a nursing supervisor and was still employed at Tandem when she left in August 2004. She considered him a good, "team player" employee.1/ No testimony was presented, however, regarding his current ability to practice with reasonable skill and safety. Mr. Herring petitioned the Board for reinstatement of his license. His re-entry plan "is simple, to go back to work and provide for my family." He submitted information showing he had paid his fines, renewed his license, and sought evaluation from IPN providers. He stated, however, that he could not and would not be involved with IPN, both because of cost and what he considered to be "extreme prejudice" to him. Two evaluations from IPN providers were presented to the Board of Nursing. The first, prepared by Dr. Selah of the Center for Medicine and Psychiatry, Inc., indicates that in Dr. Selah's view, Petitioner was not safe to practice nursing with reasonable skill and safety. The second, prepared by Dr. Judy Rivenbark, stated that Petitioner would be safe to practice nursing only if he obtained therapy, entered into and complied with an IPN contract and demonstrated that he was current and up to date on his nursing skills. Although considered by the Board of Nursing, no testimony was presented at hearing from either professional. The Board considered his request and on December 27, 2006, entered an Order on Petition for Reinstatement denying his request.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request for reinstatement of his nursing license. DONE AND ENTERED this 22nd day of April, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2008.
