The Issue The issue in this case is how the Board of Nursing (Board) should discipline the Respondent’s registered nurse license for: pleading guilty to two counts of larceny-grand theft of a controlled substance, which were third degree felonies under section 812.014(2)(c)13., Florida Statutes1/; pleading nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor under section 893.147(1), Florida Statutes; pleading nolo contendere to larceny-petit theft, a second degree misdemeanor under section 812.014(3)(a), Florida Statutes; and failing to report the criminal violations to the Board within 30 days.
Findings Of Fact In April 2014, the Respondent became licensed to practice as a registered nurse in Florida. He holds license RN 9381249. He also has a certified nursing assistant license, which he has held since 2009. From November 2014 until January 2015, the Respondent was working as a registered nurse at Sarasota Memorial Hospital. While working there, he diverted controlled substances for his own use. Specifically, he was putting Percocet pills prescribed for, but not used by, patients in his pocket and taking them later himself for pain. The Respondent was found out, fired, arrested, and charged with criminal violations. In August 2015, the Respondent entered pleas of: guilty to two counts of larceny-grand theft of a controlled substance, third degree felonies in violation of section 812.014(2)(c)13.; nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor in violation of section 893.147(1); and nolo contendere to larceny-petit theft, a second degree misdemeanor in violation of section 812.014(3)(a). The Respondent was sentenced to a 14 month-long drug court program (which included random drug sampling), probation, fees and costs, and was prohibited from practicing as a nurse while he was on probation. Adjudication was withheld. The Respondent did not report his pleas and convictions to the Board in writing. He testified that he thought the Board had sufficient notice because an unidentified representative of the Board was present at the plea hearing and asked the judge to have the Respondent repeat the pleas so they could be properly and clearly recorded for use in a license discipline proceeding, and because he telephoned the Board soon after the incident and was told to stop practicing nursing. The Respondent successfully completed the drug court program and probation, and fulfilled all other conditions of his pleas and sentences. The Respondent acknowledged that his diversion of controlled substances from his place of employment was wrong, a mistake, and showed poor judgement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent guilty of violating sections 456.072(1)(x) and 464.018(1)(e); reprimanding him; fining him $500; requiring IPN evaluation and treatment, if necessary; and assessing the costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of February, 2017.
The Issue Whether Petitioner’s request for an exemption from disqualification pursuant to sections 408.809(6) and 435.07(3), Florida Statutes, should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings and grant exemptions for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 435, Florida Statutes. See § 408.809, Fla. Stat. (2010)1/ Petitioner holds a valid license as a licensed practical nurse from the Florida Department of Health, Board of Nursing (Department of Health). As part of an application for employment with a nursing home for a position other than as licensed practical nurse that does not require licensure or certification,2/ Petitioner underwent background screening which revealed the following criminal convictions: Petitioner’s guilty plea and adjudication of guilt on February 14, 2003, of two third degree felonies, including Organized Fraud of Less than $20,000 and Criminal Use of Personal Identification Information; and Petitioner’s plea of no contest to the first degree misdemeanor of contributing to the delinquency of a minor and adjudication of guilt on January 30, 2009. Each of the above-referenced criminal convictions revealed in Petitioner’s background check would make Petitioner ineligible to provide a service other than a service within the scope of her nursing license in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent pursuant to sections 408.809(6) and 435.07(3), Florida Statutes. Petitioner submitted an application for exemption in accordance with sections 408.809(6) and 435.07 to Respondent dated April 27, 2010, which Respondent received on May 3, 2010. The application for exemption submitted by Petitioner makes it clear that Petitioner sought, and is seeking in this proceeding, an exemption for employment with an assisted living facility or nursing home in a capacity other than as a licensed practical nurse for which she holds a license. The application for exemption submitted by Petitioner was on Respondent's pre-printed form. Petitioner selected the third box on page one of the pre-printed form. The pre-printed language corresponding to the third box provides: "I am a licensed or certified health care professional and I applied for employment with a health care provider in a position that does not require licensure or certification." The pre-printed language next to the third box further provides: "NOTE: If you are seeking an exemption to work as a CNA, RN, LPN or other licensed or certified position, please contact the appropriate licensing board." On page 2 of the pre-printed form, Petitioner checked boxes indicating that she had been denied employment with an assisted living facility and a nursing home and is seeking an exemption for positions providing a "Dietary" service or as an "Employee/Staff Person." At a telephonic hearing conducted by Respondent on May 26, 2010, Petitioner explained her version of the facts surrounding her arrests and convictions. In addition to Petitioner, the telephone hearing was attended by Respondent’s background screening manager, Sherri Ledbedder, and Respondent’s background screening consultants, Bob Wrightfinger, Bobbie Oday, and Pam Smith. Respondent’s file for Petitioner’s exemption request contains police reports, plea and conviction records, and a number of letters in support of Petitioner’s requested exemption, all of which were received into evidence in this proceeding as Exhibit R-1. In addition, a transcript of the telephonic hearing was received into evidence as Exhibit R-2. As noted above, after the telephonic hearing, Respondent preliminarily denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the final hearing in this case, Petitioner once again explained her version of the facts surrounding her arrests and convictions. Petitioner was attending nursing school at the time of her 2003 convictions. According to Petitioner, her convictions in 2003 were the result of her confessions to crimes that she knew about but did not actually commit. Petitioner explained that others used her home computer to purchase another computer by fraudulent use of identification information obtained from a hospital patient. Petitioner further explained that, although she did not actually commit the crimes for which she was convicted in 2003, she confessed in order to protect her friends and because the crimes were committed in her home using her computer. She explained that she felt responsible because she was aware of the crimes and had not timely advised authorities. As a result of her confessions and convictions in 2003, Petitioner was sentenced to six months in jail and three years of probation. Petitioner was released after four months and completed her probation, during which she successfully passed regular drug tests. Despite her convictions and incarceration, Petitioner completed her nursing education in 2004, and graduated with honors, receiving a diploma in Practical Nursing from Orange County Public Schools, Orlando Tech, on October 15, 2004. As a result of her felony convictions, Petitioner lost her civil rights. In 2007, Petitioner posted an application to the clemency board and her civil rights were restored on June 4, 2007. Since her felony convictions, Petitioner has started an organic soap company named “Planthead,” which is registered and operating in the United States and Jamaica. She also has a business interest in a taxi service in Jamaica. In addition, Petitioner had an ownership interest in a bar in Jamaica, which is now closed. As to her plea of no contest to the first-degree misdemeanor of contributing to the delinquency of a minor and adjudication of guilt on January 30, 2009, Petitioner explained that she pled nolo contendere on the ill-advised recommendation of a lawyer. Petitioner testified that she was living in a house with her mother and her mother’s boyfriend in November 2008, when the police came to the house at the request of Petitioner’s mother’s boyfriend to serve eviction papers on Petitioner and her mother. According to Petitioner, when the police arrived, they smelled marijuana and proceeded to search the house. Petitioner testified that her son was playing outside at the time. Then, according to Petitioner, the police fabricated a story that they had found marijuana in Petitioner’s possession and arrested her. Petitioner advised that she was arrested for possession of marijuana and child abuse. Petitioner said that she was afraid that she would lose her son. According to Petitioner, after she obtained a lawyer to represent her in the case, he persuaded her to plea nolo contendere to a lesser offense of contributing to the delinquency of a minor. Petitioner said she followed her lawyer's advice because he told her that, since he was an out- of-town lawyer, the judge would not be favorable to her and she could end up with a long prison sentence. As a result of her conviction, she received a 30-day sentence which was suspended on the condition that she complete 20 hours of community service, attend a parenting class, and undergo two random drug tests, to be completed by July 29, 2009. Petitioner successfully completed the conditions of her suspended sentence. Thereafter, Petitioner applied for an exemption from the Department of Health, Board of Nursing, regarding her convictions that are the subject of this proceeding. On February 11, 2010, the Board of Nursing granted the exemption, in a letter stating: Dear Ms. Longmore: The Florida Board of Nursing has completed the review of your Level 1 Criminal History report for licensed Practical Nurse licensure. Based on the information provided by the Florida Department of Law Enforcement (FDLE), you have been found guilty of, regardless of adjudication, or entered a plea of guilty or nolo contendre to the criminal offenses listed above in Section 435.03(2), F.S. It has been determined; you have demonstrated clear and convincing evidence you will not present a danger if employed within the healthcare field. This exemption is granted to cover Certified Nursing Assistants, Licensed Practical Nurses and Registered Nurses should you be employed or seek employment within a facility licensed under Chapter 400, F.S. If any disqualifying offense(s) are committed after the date of this letter, a new exemption is required. If your employer has received a background screening from the Agency for Health Care Administration (AHCA) or their website, which shows “pending” or “not ok” you may work with this exemption. However, you must also contact AHCA regarding information they may need. This exemption does not change your criminal history, but merely provides eligibility for employment; therefore the “not ok” will remain on their website regardless. Other than the letter granting the exemption itself, there was no evidence presented which explains or elaborates on the Board of Nursing’s rational for granting the exemption. There are a number of favorable letters of recommendation in Respondent’s file in support of Petitioner’s requested exemption. Those letters were received into evidence as part of Exhibit R-1, and were considered in preparing this Recommended Order. While Petitioner's versions of the facts surrounding her convictions of disqualifying offenses are plausible, they conflict with her confessions and pleas of those crimes and are therefore less than clear and convincing. In addition, while there is favorable evidence supporting Petitioner's request for exemption, based upon the period of time since the disqualifying felony violations, the seriousness of those offenses, the nature of harm caused to the victim, and Petitioner's relatively recent conviction of contributing to the delinquency of a minor, which is also a disqualifying offense, it cannot be said that Petitioner proved by clear and convincing evidence that she is entitled to receive the exemption she seeks from Respondent. In sum, Petitioner failed to meet her burden of proving by clear and convincing evidence that she is entitled to an exemption issued by Respondent for a position providing a service that is not within the scope of her license as a licensed practical nurse.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order, consistent with these findings and conclusions, denying the application for an exemption submitted by Petitioner in this case. DONE AND ENTERED this 23rd day of March, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 23rd day of March, 2011.
The Issue Whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant hereto, Respondent, Diahann James, held license numbered 1266532 as a registered nurse (RN) and held license numbered 36309-1 as a practical nurse (PN). Both of these licenses had been issued to Respondent by Petitioner and entitled Respondent to engage in the practice of nursing within the scope of her licensure in the State of Florida. Respondent's RN license was, at the time of the formal hearing, suspended following Petitioner's order of suspension entered December 13, 1990. This suspension was based on Respondent's alleged failure to comply with the terms of her previously established probation. Respondent's PN license has been on an inactive status since April 1, 1983. Respondent has until April 1, 1993, to seek reactivation of her PN license pursuant to Rule 210-14.005(1), Florida Administrative Code. Unless reactivated, her PN license will permanently expire after April 1, 1993. On February 15, 1985, Respondent's RN license was suspended pursuant to an order entered by the Board of Nursing (Board) as the disposition of the Department of Professional Regulation's (DPR) Administrative Complaint Number 0051651. On June 23, 1986, Respondent's RN license was conditionally reinstated pursuant to an order of the board, contingent upon Respondent's submission of a favorable psychological evaluation. On August 11, 1986, Respondent submitted a satisfactory psychological evaluation and her license was reinstated effective August 27, 1986. Upon reinstatement, Respondent's RN license was placed on probation for a period of two years subject to specific terms and conditions. Respondent did not submit the quarterly reports required by the terms of her probation and the Board filed a complaint with DPR against Respondent on April 22, 1988, based on her failure to comply with the terms of her probation. On October 18, 1988, DPR filed Administrative Complaint 0098524 against Respondent based on the complaint the Board had filed on April 22, 1988. On April 1, 1989, Respondent's RN license 1266532 became inactive due to Respondent's failure to apply for renewal. In May 1989, Respondent applied for reactivation of her RN license. Accompanying this application was an affidavit that Respondent had executed on April 3, 1989. This affidavit affirmed that she had earned the continuing education hours during 1987-89 to meet the requirements set by DPR for renewal of her license. At the Board's request, Respondent submitted copies of continuing education certificates from Psycho- Awareness Continuing Education Provider as documentation that she had met the continuing education requirements as represented by her affidavit dated April 3, 1989. The continuing education certificates submitted by Respondent had been altered to reflect her participation and attendance at these continuing education programs in 1988. Respondent attended these programs not in 1988 (which would have met the continuing education requirements), but in 1986 (which would not meet the continuing education requirements). The affidavit Respondent signed on April 3, 1988, was false, and the certificates she submitted in support of that affidavit were altered. Respondent's submitted continuing education certificates were deemed to be forgeries by the Board. On June 23, 1989, Respondent was advised that her continuing education certificates were unacceptable, that her license remained on an inactive status, and that she was not entitled to work as a nurse. In July 1989, Respondent worked as a registered nurse at Cedars Medical Center, Miami, Florida. Respondent did not inform the Board's probation supervisor of her employment at Cedars Medical Center, even though the terms of her probation required her to do so. Respondent answered "no" on the Cedars Medical Center employment application to the question of whether her license had ever been revoked, suspended, or placed on probation. At no time during the term of her employment at Cedars Medical Center did she reveal that her licensure was on an inactive status and on probation. During the course of her employment at Cedars Medical Center on July 11-12, 1989, and on July 25-26, 1989, (these events occurred during the night shift) Respondent wrote telephone orders, allegedly from physicians, for various medications for several different patients. Respondent signed at least two of said telephone orders with the name of "L. Hemingway", a coworker. Respondent submitted these telephone orders to the pharmacy and obtained various medications, including controlled substances. The physicians named by Respondent on the telephone orders denied giving Respondent authorization to order those medications on the dates specified, and none of said orders were an existing part of the patients' records. On July 28, 1989, Respondent was confronted by her superiors regarding the numerous discrepancies that had been discovered through the pharmacy regarding her deviation from the normal procedure for obtaining and administering medications. Respondent denied any diversion of drugs and further denied writing the fraudulent telephone orders. Respondent was then asked to submit to a urine test, and she submitted a urine sample under controlled conditions. The urine sample was thereafter tested using appropriate methodology and equipment. Her urine tested positive for cocaine, meperidine (Demerol, a schedule II controlled substance, and pentazocine (Talwin, a schedule IV controlled substance). Respondent did not produce any valid prescriptions to account for the positive results of her urinalysis. On August 1, 1989, Respondent's employment at Cedars Medical Center was terminated. On July 28, 1989, the Board filed a Final Order in DPR case 0098524, the case DPR had filed against Respondent's RN license on October 18, 1988. This Final Order extended Respondent's existing probation for a period of two years and imposed conditions of probation similar to those initially imposed on August 27, 1986. On August 27, 1989, Respondent's RN license, which had been on an inactive status since April 1, 1989, was reactivated, but remained on probationary status. In December 1989, Respondent was employed at Doctors Hospital, Coral Gables, Florida, as a registered nurse. Respondent failed to inform her probation supervisor of her employment as a nurse, though she was required to do so by the terms of her probation. On December 4-5, 1989, Respondent worked the 11 p.m. to 7 a.m. shift at Doctors Hospital. The narcotic records on which Respondent signed out for narcotics for patients under her care and the medication record on which she charted the medication for these patients were falsified to reflect that these patients had received more narcotics than had actually been administered to them. These false records, for which Respondent was responsible, permitted Respondent to obtain excess narcotics from the hospital's pharmacy. On January 18, 1990, Respondent rendered a urine specimen for drug analysis pursuant to the terms of her probation. The subsequent analysis tested positive for propoxyphene (Darvone, a schedule IV controlled substance). Respondent provided no valid prescription to account for the positive result of her urinalysis. On March 1-2, 1990, Respondent was employed at Coral Gables Hospital, Coral Gables, Florida. Respondent failed to inform her probation supervisor of her employment, although she was required to do so by the terms of her probation. While working the 11 p.m. to 7 a.m. shift at Coral Gables Hospital, on March 1, 1990, Respondent admitted to her nursing supervisor that she had self-administered 150 mg. of Demerol. Respondent was accompanied to the Emergency Room where she received medical assistance. The nursing supervisor immediately began a review of Respondent's patients' charts. From this review, it was established that Respondent had obtained 250 mg. of Demerol, and that the patients for whom Respondent had signed out the narcotics did not possess physicians' orders for same. Respondent falsely charted on the medical records of two patients the administration of Demerol. On March 8, 1990, Respondent rendered a serum sample for drug analysis at the request of Coral Gables Hospital. Said specimen subsequently tested positive for the presence of Demerol. On July 15, 1990, Respondent rendered a urine specimen for drug analysis, pursuant to the terms of her probation. The preliminary results of that testing detected the presence of certain controlled substances and were classified as presumptive positive. The specimen Respondent had given was not of sufficient quantity to permit the completion of testing, and the preliminary findings were not confirmed. On December 13, 1990, Respondent's R.N. license was suspended due to her failure to comply with the terms of her probation. Based on the expert testimony presented at the formal hearing, it is found that Respondent is an impaired individual suffering from chemical dependency; that Respondent's practice of nursing is below the minimum standard of safe patient care for the State of Florida; and that Respondent is unable to practice nursing with reasonable skill and safety to patients because of her chemical dependency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which revokes Respondent, Diahann James's license as a registered nurse (number 1266532) and which revokes her license as a practical nurse (number 36309-1). DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1991. APPENDIX The proposed findings of fact submitted on behalf of the Petitioner are adopted in material part by the Recommended Order. The only post-hearing submittals by Respondent were in the form of two brief letters addressed to the undersigned, one filed May 8, 1991, and the other filed May 30, 1991. To the extent that either letter is construed to contain proposed findings of fact, those proposed findings are rejected as being either irrelevant, unsupported by the record, or contrary to the findings made. COPIES FURNISHED: Tracey S. Hartman, Esquire Roberta Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Diahann L. James 676 N.W. 48th Street, No. 4 Miami, Florida 33127 Judie Ritter, Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.
Findings Of Fact In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent. ENTERED on December 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant. 6-12 (first sentence): adopted or adopted in substance. 12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate. 16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance. 19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate. 24: rejected as subordinate. 25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance. 29: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-3 (first sentence): adopted or adopted in substance. 3 (first sentence)-4: rejected as subordinate and irrelevant. 5-6: adopted or adopted in substance, although not as to the identify of the other nurse. 7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence. 8-14: rejected as subordinate. 15-18: adopted or adopted in substance. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Robert E. Tardif, Jr. Duncan & Tardif, P.A. P.O. Drawer 249 Ft. Myers, FL 33902 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
The Issue Whether disciplinary action should be taken against the Respondent's license to practice nursing, based upon alleged violations of Sections 464.018(1)(h), 464.018(1)(I), 464.018(1)(j), and 455.227(1)(q), Florida Statutes, and if so, what discipline is proper.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.42, Florida Statutes; Chapters 455 and 465, Florida Statutes. The Respondent, Fred Leon London, III, a 48-year-old male, and at all times material to this matter, holds active nursing license numbers PN 1089021 and RN 2804642. Respondent has been a registered nurse for approximately five years. In October of 1995, Respondent was employed as a registered nurse at Columbia Park Medical Center in Orlando, Florida, working the 3:00 p.m. to 11:00 p.m. shift. On October 4, 1995, the hospital, at which Respondent worked, had a discrepancy with one of its narcotic systems called the Phyxis machine. The discrepancy was reported by Respondent. A search was conducted to locate the missing drugs and the narcotics could not be located at that time. It was determined that Respondent and one other nurse were the last two nurses who operated the machine. Pursuant to hospital policies, the Respondent and the other nurse were asked to submit to a urine screen for the purpose of determining if they had ingested any drugs. The Respondent submitted to a urine screen as requested by his employer on October 5, 1995. The urine screen was performed by Smith Kline Beecham Laboratories. The test results performed on behalf of the hospital and the subsequent voluntary test taken by Respondent on October 13, 1995, cannot support a finding of fact, since the reports are uncorroborated hearsay. Following the in-house investigation, the Respondent was terminated from his employment and a report was filed with the Board of Nursing. The missing narcotics were subsequently located the following day. They had been misplaced, but not tampered with. They were returned to inventory. Respondent was referred to the Intervention Project for Nurses (IPN). Respondent participated in a psychosocial assessment on October 12, 1995. Respondent has no prior criminal or disciplinary history and denies that he used marijuana or any other controlled substance on October 4 or 5, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty as to Counts I, II, III, and IV of the Administrative Complaint, dated August 4, 1997, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 8th day of April, 1998, at Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Craig A. McCarthy, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Dr. Xavier C. Pinellas Qualified Representative 211 Broadway, Suite 115 Kissimmee, Florida 34741 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
Findings Of Fact Margie Leverson, petitioner, was registered with the Florida State Board of Nursing in 1978 as a licensed practical nurse holding license number 13107-1. On the evening of March 9, 1978, petitioner was assigned to work the 11 p.m. through 7 a.m. shift in the critical care unit of Palm Springs General Hospital, Homestead, Florida. An audit of administration records at the Hospital disclosed that petitioner failed to properly chart medications administered to a number of patients, that she failed to complete the nurses' notes of patients under her care, and that she did not sign the medication administration profile sheets or nurses' notes for any of the patients under her care during the time at issue. The importance of conforming to these requirements is to assure that all medications have been given when scheduled and to assure continuity in evaluating a patient's illness. With critically ill patients, it is necessary to be able to ascertain when a condition or problem was noted and how it was treated. Otherwise, continuity is lost, and it is possible that decisions as to treatment may not be accurately made, and the nurse in charge cannot in every case be identified unless her signature appears on the documents. Failure to chart medications administered to patients. On two occasions, petitioner failed to chart medications administered to patients. Specifically, Juan Pinera was to receive 2 million units of penicillin intravenously every four hours, including twice during the time he was in petitioner's care. However, the prescribed medication was not charted as having been given to the patient during this time. Another patient, Peter L. Garcia, was scheduled to receive ampycillin 500 mg. at midnight and 6 a.m., and garamycin 40 mg. at midnight. Such administrations, if given, were not charted by petitioner. Failure to adequately and properly chart the nurses' notes of patients in the nurse's care. In the case of four patients under the care of petitioner, no nurses' notes were kept. (Exhibit Nos. 1, 2, 5, & 6). For the other three patients, the notes were of minimal, if any, value because they did not provide any evaluation or explanation of the problems noted. (Exhibit Nos. 3, 4 & 7). Petitioner herself acknowledged that the words were written in her hand writing and were of no value to anyone attempting to determine the patient's condition. Failure to sign medication administration profile sheets and nurses' notes. The petitioner failed to sign the medication administration profile sheets and nurses' notes for any of the patients under her care during the time at Issue. In mitigation, petitioner had earlier completed a 3 p.m. through 11 p.m. shift at another hospital on the same date. She arrived on duty at the Hospital around 11:30 p.m. Because of an argument with a co-worker, she was transferred by her supervisor to another unit around 1:00 a.m. and claims she cannot be held accountable for the failures as to the seven patients who were under her care. Petitioner stated she ultimately left the hospital on leave around 3:00 a.m. due to a pinched nerve in her back.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED the application of Margie Leverson for reinstatement of her license as a licensed practical nurse be granted subject to the conditions set forth in conclusion 14 above. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Margie Leverson 4030 Northwest 190th Street Opa Locka, Florida 33055 Frank A. Vickory, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
The Issue Whether the statement that "The injection of Botox is not within the scope of practice for registered nurses and does not constitute the administration of medication," ("the Botox statement") constitutes an unadopted rule in violation of section 120.54(1), Florida Statutes (2014).1/
Findings Of Fact The following facts are found, as stipulated, admitted, or officially recognized (duplicates have been set forth only once): Stipulated Facts Ms. Shelley Kay Hill is a registered nurse in the state of Florida, license number RN 9317251. The Department of Health (DOH) is a state agency charged with regulating the practice of nursing pursuant to section 20.43, chapter 456, and chapter 464, Florida Statutes. Section 464.018(1)(h) provides that unprofessional conduct as defined by Board of Nursing rule constitutes grounds for disciplinary action. Florida Administrative Code Rule 64B9-8.005(13) provides that unprofessional conduct includes practicing beyond the scope of the licensee's license, educational preparation or nursing experience. Ms. Hill is licensed pursuant to chapter 464 and is a health care practitioner as defined in section 456.001(4). Botox is a medication. It is within the scope of practice for registered nurses in the state of Florida to administer medication. As of October 17, 2014, the Florida Board of Nursing website located at http://floridasnursing.gov/general-faqs states that a practical or registered nurse may not inject Botox as it is not within the scope of practice for practical or registered nurses. As of October 17, 2014, the Florida Board of Nursing website located at http://floridasnursing.gov/general-faqs states that Botox injection does not constitute the administration of medication. Petitioner's Requests for Admission served on Respondent DOH on October 17, 2014, in this case include an Exhibit "A" which is a printout of the "General FAQs" from the Board of Nursing's website on October 17, 2014. The scope of practice for a registered nurse licensed in the state of Florida includes the administration of medications. Injection is a form of administration of medication. Registered nurses are allowed to inject medications within the scope of nursing practice in the state of Florida. As of October 17, 2014, the Florida Board of Nursing website (located at http://floridasnursing.gov/general-faqs), under the section "General FAQs," states: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. Petitioner's Amended Requests for Admission include Exhibit RFA-1, served on Respondent DOH on October 20, 2014, which is an accurate copy of a printout from the Florida Board of Nursing's website (http://floridasnursing.gov/general-faqs) under the Section "General FAQs," as it existed on October 17, 2014. Proposed Exhibit P-5, a copy of the proposed exhibit attached to Petitioner's Amended Requests for Admission as "RFA- 1" that was served on Respondent DOH on October 20, 2014, is authentic. Proposed Exhibit P-5, the exhibit attached to the Petitioner's Amended Requests for Admission as "RFA-1" that was served on Respondent DOH on October 20, 2014, is admissible. Injection is one of the methods of administration of a medication. There has been no Florida Law Weekly notice regarding rulemaking as it relates to the injection of Botox by nurses. The definition of "registered nurse," as stated in section 464.003(22), is as follows: "'Registered nurse' means any person licensed in this state to practice professional nursing." Botox is a drug. The Florida Department of Health and the Florida Board of Nursing have disciplined registered nurses for administering Botox by injection, as indicated in Final Order No. DOH 12-2134- S-MQA in Department of Health vs. Debra Ann Leckron, R.N., DOH Case No. 2012-01979, filed October 11, 2012. (Order entered Nov. 20, 2014). The Florida Department of Health and the Florida Board of Nursing have disciplined registered nurses for administering Botox by injection, as indicated in Final Order No. DOH 14-0617- S-MQA in Department of Health vs. Maritza Novas, R.N., DOH Case Nos. 2013-05848 and 2013-06561, filed April 18, 2014. (Order entered Nov. 20, 2014). The Board of Nursing's statements regarding the injection of Botox by nurses are statements of general applicability to nurses. Admissions There is no Florida Administrative Code rule that specifically prohibits the administration of Botox. The Florida Board of Nursing has made no declaratory statements regarding the administration of Botox by nurses. Officially Recognized Facts On October 24, 2014, the official website of the Florida Board of Nursing, on its "General FAQs" (Frequently Asked Questions) web page, contained the following question and answer: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. On October 24, 2014, the official website of the Florida Board of Nursing, on its Search Results web page, when the term "Botox" was searched, yielded the following results: Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. On October 28, 2014, the official website of the Florida Board of Nursing, in its "Help Center" web page, contained the following question and answer: Help Center/Can a practical or registered nurse inject Botox? The injection of Botox is not within the scope of practice for practical or registered nurses and does not constitute the administration of medication. Botox is approved by the U.S. Food and Drug Administration (FDA). Ultimate Facts The Botox statement constitutes a rule within the definition of section 120.52(16). The Botox statement, or a substantially similar statement, has not been adopted as a rule under chapter 120 procedures. The Board of Nursing did not show that it is not practicable or feasible to adopt the Botox statement as a rule.
The Issue Whether one or more of the following penalties should be imposed on Elizabeth Worden: revocation or suspension of the Ms. Worden's practice, imposition of an administrative fine, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact Elizabeth Worden is, and has been at all times material hereto, a licensed practical nurse in the State of Florida. Ms. Worden holds State of Florida license number 0739611. Her license lapsed on April 1, 1987, and remained lapsed at least through September 20, 1988. On September 11, 1985, Ms. Worden was arrested and charged with one count of driving under the influence (hereinafter referred to as "DUI") and five counts of possession of controlled substance. On February 24, 1986, Ms. Worden was found guilty of DUI. Additionally, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered based upon a plea of nolo contendere by Ms. Worden to the five counts of possession of controlled substance. Ms. Worden was placed on three years probation for the charge of possession of controlled substance and was placed on a year of probation (to run concurrently with the sentence for possession of controlled substance), ordered to pay a fine, perform community service and had her drivers license suspended for six months for the charge of DUI. During at least part of 1986 and 1987, Ms. Worden was employed as a licensed practical nurse at the Ocala Geriatrics Center (hereinafter referred to as the "Center"). Ms. Worden was one of three licensed practical nurses at the facility during the 11:00 p.m. to 7:00 a.m. shift and was in charge of the patients on one floor of the facility. While on duty at the Center Ms. Worden retired to room 5 in the east wing of the Center almost every night to sleep. She generally went to the room at about 2:00 a.m. and remained in the room until approximately 6:00 a.m. While Ms. Worden slept, she left the certified nurses aides in charge of patient care and assigned duties to the aides which should have been conducted by a licensed nurse. Ms. Worden told the aides to wake her only if a patient needed medication, if another nurse appeared on her floor, and at 6:00 a.m. On three occasions Ms. Worden left the Center while she should have been on duty, leaving certified nurses aides in charge of patient care. On these occasions Ms. Worden was gone from fifteen to thirty minutes carrying out personal errands. Ms. Worden admitted on one occasion to a certified nurses aide that she had consumed a couple of beers before coming to work. Ms. Worden's breath often smelled of alcohol and the room in which she slept also smelled of beer on occasion. During 1987, Ms. Worden entered the Intervention Project for Nurses. She was dismissed from the program in August, 1987, for noncompliance with the program's requirements. On May 18, 1987, Ms. Worden was arrested and charged with DUI and resisting arrest without violence. She was adjudicated guilty of both offenses on July 13, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Elizabeth Worden be found guilty of having violated Sections 464.018(1)(c) and (g), Florida Statutes, as alleged in Count One and Count Three of the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Worden is guilty of having violated Sections 464.018(1)(f) and (h), Florida Statutes, as alleged in the second Count One and Count Three of the Administrative Complaint be dismissed. It is further RECOMMENDED that Ms. Worden's license as a practical nurse be suspended until the later of the end of a five (5) year period from the date of the final order issued in this case or the date that Ms. Worden provides proof acceptable to the Petitioner of her successful completion of a rehabilitation program acceptable to the Petitioner. DONE and ENTERED this 18th day of November, 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 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2548 The Petitioner 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 Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3-4 2. 5 3-4. 6 5. 7 7. 8 9. 9 10. 10 10-11. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth Worden 412-A Clark Street St. Charles, Missouri 63301 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter Executive Director Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent was a licensed practical nurse holding license number 11005-1. On April 8th and 9th 1975, respondent was employed at St. Vincent's Medical Center in Jacksonville, Florida. As required by federal law and the normal course of the business of pharmacy, the pharmacist of the Center maintains and retains narcotic control records which chart the withdrawal and disposition, of controlled substances. The narcotic control records introduced into evidence as Exhibit 2 record the disposition of various dosages of meperidine ampuls. Demerol is the trademark name of the generic drug meperidine, which is a controlled substance under Ch. 893 of the Florida Statutes. St. Vincent's Medical Center has specific procedures to be followed when withdrawing and administering narcotic drugs. When a nurse withdraws a narcotic drug for a patient, it is her duty to fill out the narcotic control record showing the date, the time, the dosage, the patient to whom the drug is to be administered, the treating physician and the signature of the person withdrawing and administering the substance. The substance should then be administered to the patient within minutes of the withdrawal time, and the time of administration and dosage should immediately be noted or charted on that portion of the patient's medical record entitled "Nurses Notes." From the testimony adduced at the hearing, and by comparing the narcotic control records with the "Nurses Notes" on several patients; it is clear that on April 8th and 9th, 1975, respondent did not chart or note as having administered a substantial quantity of the drugs withdrawn by her. Furthermore, many that she did chart were not specific as to the time administered or the time charted was a half hour or more from the time listed on the narcotic control record. There was no evidence that respondent was using these drugs for her own purposes or that the patients, in fact, did not receive their medication after it was withdrawn by respondent. It was respondent's testimony that the discrepancies existing between the narcotic control sheets and the "Nurse's Notes" resulted from either errors in charting on another patient's chart or mistakenly forgetting to chart the administration due to being so busy or short-staffed. Respondent denied taking any of the narcotic drugs herself.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing find respondent guilty as charged in the administrative complaint and suspend respondent's license for a period of six (6) months. Respectfully submitted and entered this 9th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Geraldine Johnson Florida State Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211 Mr. Juluis Finegold 1130 American Heritage Life Building Jacksonville, Florida 32202 Ms. Dorothy M. Hall Cobb 1720 West 13th Street Jacksonville, Florida 32209
