The Issue Whether the Respondent's license as a Licensed Practical Nurse should be suspended or revoked for alleged violation of Sections 464.21(1)(b) and (d), F.S., as set forth in Administrative Complaint, dated August 3, 1978. The Respondent did not appear at the hearing. Notice of Hearing was issued by the Hearing Officer under date of October 25, 1978, to the address provided by Petitioner, 7124 Bay Drive No. 1, Miami Beach, Florida 33141. This is the address reflected on the envelope which enclosed Respondent's request for hearing on the Administrative Complaint sent to Petitioner under postmark August 28, 1978. It being determined that adequate notice had been provided to Respondent, the hearing was conducted as a uncontested proceed, pursuant to Rule 28-5.25(5), Florida Administrative Code. (Exhibit 5)
Findings Of Fact Respondent Michaela Fives holds License No. 27554-1 as a Licensed Practical Nurse and was so licensed in November, 1977. (Testimony of Johnson) On November 5, 1977, Detective Kenneth Valentine, Hialeah Police Department, was acting in an undercover capacity on an investigation of narcotics. Pursuant to his investigation, he met with Respondent at her apartment located at 5960 NW 38th Street, Apartment 210, Virginia Gardens, Miami, Florida. Lynn Sampson and Danny Cundiff were also present in Respondent's apartment at the time. Cundiff and Sampson wrote out a prescription of 60 300 mg. Quaalude tablets on a printed prescription form. The top of the form showed the name Lacy, Adler, M.D., P.A., followed by "Andrew P. Adler, M.D., Ray C. Lacy, M.D., 221 West Flagler Street, Miami, Florida 33130, Telephone: 887-9339." The prescription was handed to Valentine and Respondent gave him $15.50 to have it filled at the My Pharmacy, 1550 West 84th Street, Hialeah-Miami Lakes, Florida. By pre-arrangement with the pharmacist, Valentine had the prescription filled there and took the pills back to the apartment. Sampson divided them among Respondent, Cundiff and herself, and each of them ingested one tablet. Valentine purchased ten tablets from Sampson and Cundiff for $35.50. (Testimony of Valentine) On November 9, 1977, Valentine again met with the three individuals at Respondent's apartment and was provided another prescription for the same amount of drugs. It reflected the patient's name as Robert Southern, and registration number 178855. It was purportedly signed by "S. Adler, M.D." Prior to this meeting, the Hialeah police had determined that Doctors Adler and Lacy were not listed in the telephone book nor were they located at the address shown on the prescription form. They also determined that the phone number shown on the prescription form was a pay telephone located in Hialeah, Florida. After the individuals at the apartment discussed the fact that the pharmacist would probably call the phone number listed on the prescription form to verify its authenticity, Valentine took the Prescription to the My Pharmacy and had it filled, using his own money for the purchase. At this time, another police officer present at the pharmacy called the phone number listed on the prescription form to ostensibly verify the prescription. Lieutenant Paul Gentesse of the Hialeah Police Department had previously placed himself in a position to observe the pay telephone. He saw the Respondent answer the telephone and then followed her back to her apartment. When Valentine returned with the filled prescription, he gave it to Cundiff who divided the tablets among Respondent, Sampson and Valentine Valentine paid $30.00 for ten tablets. Other police officers then arrived at the apartment and Respondent, Cundiff and Sampson were placed under arrest. (Testimony of Valentine, Gentesse, Exhibit 3) The tablets taken from the possession of Respondent and the others were analyzed by a chemist in the Crime Laboratory of the Dade County Public Safety Department and were found to contain Methaqualone, a controlled substance under Chapter 893, Florida Statutes. Quaalude is a common tradename for Methaqualone. (Testimony of Lynn, Exhibit 2, supplemented by Exhibit 1) On January 9, 1975, Petitioner had suspended the license of the Respondent for period of two years as a result of prostitution charges. The record of that proceeding contained the testimony of Respondent that she had been involved In the illegal use of controlled drugs and had been attending a drug rehabilitation program for the treatment of drug abuse as a result of court order. Respondent thereafter petitioned for reconsideration of the suspension and, on June 29, 1976, Petitioner stayed its order of suspension and placed Respondent on probation for the remainder of the period of suspension. (Testimony of Johnson, Exhibit 4)
Recommendation That Respondent's license as a Licensed Practical Nurse be revoked for violation of Section 464.21(1)(d) , Florida Statutes. DONE and ENTERED this 2nd day day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Michaela Fives, L.P.N. 7124 Bay Drive No. 1 Miami Beach, Florida 33141
The Issue The issue is whether Respondent's license as a practical nurse should be disciplined for the reasons given in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Department of Health, Board of Nursing (Board), has alleged that Respondent, Sheila Key, a licensed practical nurse, failed to conform to minimal standards of acceptable nursing practice while employed as a practical nurse at Florida Christian Health Center (FCHC), in Jacksonville, Florida, in the Fall of 1999. Respondent holds license number PN 0792331 issued by the Board. The allegations against Respondent arose as a result of a routine Agency for Health Care Administration (AHCA) licensure survey of the facility on October 1, 1999. On that date, an AHCA survey team found an elderly resident with a head injury whose nursing notes had not been properly charted; a resident in the recreation area with blood on her gown and requiring medical attention; and a third resident with unattended sores on his ankles. All were under the direct care of Respondent. As to the first resident, the Board charged Respondent with failing to document the resident's head injury or condition in her nursing notes. In the second case, she was charged with failing to notify a physician or other responsible party in a timely manner about the injury and applying "steri-strips without a physician's order." Finally, Respondent was charged with failing and refusing "to comply with the surveyors' request" that she "remove [the patient's] socks so the ankle area on his feet could be observed." Each of these charges will be discussed separately below. Around 5:15 p.m. on September 30, 1999, A. B., an eighty-seven-year-old male resident at FCHC, acidentally fell and sustained an injury to his head that required emergency room treatment. A. B. returned to FCHC from the emergency room sometime after 9:00 p.m. Respondent reported for duty at 7:00 p.m. that same evening. Although good nursing practice dictated that Respondent promptly perform a neurological check on A. B. after he returned from the hospital, she failed to do so and did not perform one until 7:00 a.m. the next day (October 1). Even then, she failed to document any of her findings in the resident's nursing notes. By failing to document "the fall or his condition" in the nursing notes until the morning following the injury, Respondent failed to conform to the minimal standards of acceptable prevailing nursing practice. Around 7:40 a.m. on October 1, 1999, M. C. suffered a laceration on her neck while being transferred from her bed to a wheelchair. Respondent applied steri-strips to the wound, but she did not have a physician's order to do so. Also, she failed to document the neck wound or her treatment of the wound until 10:45 a.m., or more than three hours later. Finally, M. C.'s physician was not notified about the injury until around 12:15 p.m. FCHC has a written policy entitled "Changes in a Resident's Condition Status," which requires that the nurse promptly notify the resident, the resident's physician, and the resident's family of changes in the resident's condition. Thus, a nurse must notify the resident's attending physician and family whenever the resident is involved in any accident or incident that results in an injury. If the injury is of an emergency nature, such notification is required within thirty minutes to an hour. The evidence establishes that M. C.'s injury was of a type that required notification within this short time period. By waiting for almost five hours to notify M. C.'s physician about the injury, Respondent failed to conform with minimally acceptable nursing practices. She also violated the same standard by applying steri-strips to the injury without a doctor's order. Finally, she failed to conform to minimally acceptable nursing practices by not charting the injury in the nursing notes until more than three hours had elapsed. During the October 1, 1999, inspection, a member of the survey team asked Respondent to remove the socks and dressings on J. R., a resident. The request was made since the team could see a brown discharge on the inner aspects of his socks. Respondent would not do so, and eventually an assistant director of nursing performed that task. After the socks were removed, the survey team found old dressings through which drainage had soaked. They also observed sores that had thick yellow or serosanguinous drainage. Even though the sores had been there for at least a week or so, dressings had been previously applied, and the soaked socks were clearly visible, Respondent had failed to check the resident and was therefore unaware of his condition. Despite this omission, however, Respondent was only charged with failing and refusing "to comply with the surveyors' request," and not with inappropriate conduct with respect to the care of the resident. By failing to respond to a reasonable and legitimate request to remove the resident's socks so that a suspicious area could be observed, Respondent failed to conform to minimally acceptable standards of prevailing nursing practice. Respondent failed to admit responsibility for any of the foregoing violations. As to the resident with the neck wound, Respondent contended that the wound was not serious. However, it was serious enough that the resident's physician believed emergency room treatment was necessary. Respondent also contended that the assistant director of nursing (Widhalm) advised her that she (Widhalm) would call M. C.'s physician, an assertion which Widhalm credibly denied. Respondent further contended that she failed to chart A. B.'s nursing notes because the chart was in the hands of the surveyors. Under those circumstances, however, acceptable protocol requires that the nurse request the return of the notes so that essential information can be timely recorded. Finally, Respondent contended that the surveyor had told her that she could finish her "medication pass" before removing the socks and could do so whenever she had time. This assertion is not deemed to be credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Respondent is guilty of the violations described in the Administrative Complaint. It is further recommended that Respondent be fined $1,000.00, given a reprimand, and placed on probation for two years subject to such conditions as the Board deems appropriate. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of November, 2000. COPIES FURNISHED: Ruth R. Stiehl, PhD., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Diane K. Kiesling, Esquire Agency for Health Care Administration Building 3, Room 3231A 2727 Mahan Drive Tallahassee, Florida 32308 Sheila Key 3651 Dignan Street Jacksonville, Florida 32254 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Petitioner is a native of Haiti, where she graduated from the Université d'Etat d'Haiti, l' École Nationale des Infirmières, Haiti's national nursing school, in 1993. Since 1997, she has lived and received mail at a residence in North Miami Beach, Florida, having the following mailing address: 1120 Northeast 155th Street, North Miami Beach (or, alternatively, Miami), Florida 33162 (155th Street Mailing Address). In or about 2006 and 2007, Petitioner attended the Miami Lakes Educational Center's practical nursing program, but she never completed the program. Thereafter, Petitioner enrolled in and later completed (in or about June 2008) a "remedial" program of practical nursing coursework specifically designed for graduates of Haiti's national nursing school. The coursework was given at Miami-Dade College (North), under the directorship of Mariane Barrientos. On April 23, 2009, Petitioner filed with Respondent an Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (First Florida Application). On the completed application form, in the spaces provided for the applicant to indicate the "Nursing School Attended" and "Additional Nursing Program Attended," she wrote "Universite D'Etat Ecole Nationale Des Infirmières" and "Miami Dade College Remedial Theory & Clinical," respectively. By letter dated April 30, 2009, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the address she gave as her mailing address on her First Florida Application, Respondent advised Petitioner that it had received her First Florida Application and, upon review, had determined it to be "incomplete" because the following requirements had not been met: Graduates of schools outside the United States must have credentials evaluated by a Board approved credentialing service. . . . Evaluation results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. Graduates of schools outside the United States must provide proof of Board approved English competency. . . . Results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. After having received this letter, as well as follow-up written correspondence from Respondent dated August 12, 2009, also addressed to Petitioner's 155th Street Mailing Address (with "Miami" designated as the city), Petitioner withdrew her First Florida Application by completing a Respondent-created form (on which she gave her address as "1120 NE 155 St Miami Fl 33162") and submitting it to Respondent on October 27, 2009. Approximately two months later, in or around December 2009, Petitioner submitted an Application for License by Examination: Practical Nurse, to the Colorado Board of Nursing (Colorado Application). The application was accompanied by a money order (in the amount of $88.00) Petitioner had obtained to pay for the application fee. On the completed application form, under "Name of Professional Nursing Program Attended," "Miami Lakes Educational Center" was written; in the space provided for the applicant to indicate the "Date of Graduation," it was claimed, falsely, that Petitioner had graduated from this "[p]rofessional [n]ursing [p]rogram" in June 2009; and Petitioner gave her 155th Street Mailing Address (with "Miami" designated as the city) as her mailing address. At the end of the form was the following "Attestation," which Petitioner signed and dated on December 14, 2009: I state under penalty of perjury in the second degree, as defined in 18-8-503, C.R.S., that the information contained in this application is true and correct to the best of my knowledge. In accordance with 18- 8-501(2)(a)(1), C.R.S. false statements made herein are punishable by law and may constitute violation of the practice act. In support of the Colorado Application, the Colorado Board of Nursing received a fraudulent Miami Lakes Education Center transcript showing, falsely, that Petitioner had completed the nursing program at the school on June 29, 2009. The transcript purported to be signed (on December 11, 2009) by Dr. Angela Thomas-Dupree, who was an administrator at the Miami Lakes Education Center at the time. In fact, the signature on the transcript was a forgery: it was not Dr. Thomas-Dupree's, and she had not authorized anyone to sign her name on any transcript issued by the Miami Lakes Education Center.3/ In response to the Colorado Board of Nursing's request that she "verify [the] transcript" it had received (a copy of which the Board sent to her), Dr. Thomas-Dupree advised the Board, in writing (through a memorandum dated March 16, 2010), that (contrary to what the transcript indicated) Petitioner "[a]ttended [but] did not complete" the nursing program at the Miami Lakes Education Center. Thereafter, the Colorado Board of Nursing made its determination to deny Petitioner's Colorado Application on the ground that she had "attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact" in violation of Colorado law.4/ By letter dated June 25, 2010, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the Colorado Board of Nursing advised Petitioner that a decision had been made to "deny [her] request for a license." The body of the letter read as follows: Panel B of the State Board of Nursing ("Board") reviewed your application for a Practical Nurse license on June 23, 2010. After careful consideration of all of the information contained in your application file, it was the decision of the Panel to deny your request for a license based on C.R.S. §12-38-118 and §12-38-117(1)(a) and its determination that you: have procured or attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact; If you feel that you have additional information or documentation to submit that would change the outcome of the Panel's decision you may write a letter and request that your file and the supplemental information be re-examined by the Panel. Feel free to contact me if you have any questions regarding this process. Pursuant to sections §12-38-1-117, 12-38-118, and 24-4-104(9), C.R.S., you have the right to request a hearing regarding the denial of your application. In order to exercise this right, you must provide written notification to the Board at the above listed address within sixty days from the date of this letter specifically requesting a hearing. In the event that you do not make a timely request for a hearing, the denial will become final. At the end of the letter was a Certificate of Service, signed by the letter's author, certifying that the letter: was sent First Class Mail from Denver, Colorado, this 25th day of June 2010, addressed as follows: Benita S. Jean-Noel 1120 NE 155th Street Miami, FL 33162[5/] Petitioner received the Colorado Board of Nursing's June 25, 2010, letter,6/ but did not request a hearing on the decision to "deny [her] request for a license." The decision therefore became final, as the letter indicated it would. From approximately December 2011 to December 2012, Petitioner took additional nursing coursework at Sigma Institute of Health Careers (Sigma). On November 5, 2012, before graduating from Sigma, Petitioner filed with Respondent a second Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (Second Florida Application). Her signature (dated September 5, 2012) was affixed on the line provided for the "Applicant's Signature" on the penultimate page (page 17) of the completed application form, and it was immediately preceded by a statement reading, in pertinent part, as follows: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. At the time she filled out and signed the application form, Petitioner knew that she had applied for licensure as a practical nurse in Colorado and that her application had been denied on the grounds that she had "attempted to procure [the applied-for] license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact." Nonetheless, wanting to keep this damaging information from Respondent, in response to Question 6A on page 13 of the form, which was, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country?," she checked the "No" box, knowing her answer to be false. Question 6A was one of four questions in the "Disciplinary History" section of the form, at the end of which was the following directive: If you answered "Yes" to any of the above questions, please send a written letter of self explanation. You must contact the Board(s) in the State(s) in which you were disciplined. You must request official copies of the Administrative Complaint and Final Order be sent directly to the Florida Board of Nursing. Consistent with her having answered Question 6A in the negative, Petitioner did not, along with the submission of her completed Second Florida Application, "send a letter of self explanation" concerning the denial of her Colorado Application.7/ Despite Petitioner's nondisclosure, in its investigation of Petitioner's application, Respondent found out about the Colorado Board of Nursing's denial of her application in 2010, and it obtained a copy of the June 25, 2010, denial letter that Petitioner had received from the Colorado Board of Nursing. Thereafter, by letter dated November 15, 2012, addressed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city), the address she gave as her mailing address on her Second Florida Application, Respondent directed Petitioner to, among other things, "[r]equest that the Board(s) in the state[s] where [she was] previously denied send official copies of the final order to the Florida Board of Nursing" and to also "[s]ubmit a self explanation in reference to the denial(s)." In response to this request, Petitioner wrote Respondent a letter in which she denied, falsely, ever even having applied for a license in any state, including Florida, in the past. Respondent, however, knew better. On February 15, 2013, it issued the Notice of Intent to Deny set out in the Preliminary Statement section of this Recommended Order. The Notice's Certificate of Service reflects that it was mailed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city) on February 18, 2013. In response to the Notice, Petitioner wrote a letter to Respondent, dated March 4, 2013, claiming, falsely, that she "never applied to the Colorado Board of Nursing"8/ and expressing her "read[iness] to challenge any misconception or any misunderstanding regarding the matter." Respondent treated Respondent's letter as a request for hearing and, on March 12, 2013, referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing. The assignment was made, and the hearing was held, as noted above. The foregoing Findings of Fact are based on the evidence received at that hearing and the record as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order denying Petitioner's pending application for licensure as a practical nurse on the grounds alleged in the Board's February 15, 2013, Notice of Intent to Deny.12/ DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of June, 2013.
The Issue Petitioner seeks licensure by examination as a registered nurse in the State of Florida. The issue for disposition here is whether her application should be granted.
Findings Of Fact Vergella Joseph Anicet was born in Haiti on July 26, 1957. After high school and university studies she attended the National School of Nursing in Port-Au-Prince, Haiti, from 1982- 1985, and graduated in 1985. Ms. Anicet emigrated to Miami, Florida, in November 1985. After approximately a year she moved to Central Florida and now is residing in Orlando. In 1990, Ms. Anicet applied for licensure as a registered nurse in Florida. Upon her request, the nursing school in Haiti sent a transcript directly to the Board of Nursing. The Board approved her to work as a graduate nurse until she could take the licensing examination. After she failed the examination Ms. Anicet lost her graduate nurse permit but qualified for licensure as a certified nursing assistant. In 1993, she passed the licensed practical nurse (LPN) examination and has been employed as an LPN since then. Ms. Anicet applied again for licensure as a registered nurse by examination in February 1999. As part of the process of that application she requested the nursing school in Haiti to send her transcript to the Board of Nursing. The nursing school sent Ms. Anicet's transcript directly to the Board. However, the transcript sent in 1999 varied in many material aspects from the version that the Board received from the school in 1990. The discrepancies are in the described courses, numbers of hours completed, and in the clinical practice experiences described in the two transcripts. From the record it is impossible to determine which is the correct transcript. In response to a request by Ms. Anicet's attorney, the National School of Nursing in Port-Au- Prince sent a letter to the Board of Nursing in October 1999, in an attempt to explain the two transcripts. As best as can be determined, the school revised its curriculum in November 1997 and somehow readjusted the official transcript to conform to the revisions. However, there is no key to how the adjustments were made. The differences are not attributable to different translations, French to English, of the two documents.¹ There is no evidence of any fraud by Ms. Anicet. The peculiar documents came directly to the Board from the school in Haiti. The Board has had problems verifying the coursework of other applicants who are graduates from this same school. The evidence establishes that Ms. Anicet graduated from nursing school but does not establish the courses or program which she completed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Board of Nursing enter its final order denying Ms. Anicent's application without prejudice to her right to reapply when she is able to obtain an appropriate credentialing report. DONE AND ENTERED this 18th day of October, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 18th day of October, 2000.
The Issue Whether or not the Respondent, Hermine Ledoux Lane, is guilty of a violation of 464.21(1)(a), (1)(b), based upon a revocation of her license to practice as an licensed practical nurse, in the State of Vermont, effective January 14, 1976, after a hearing on December 3, 1975, in which it was concluded that the Respondent had on several occassions signed her name on a patient's clinical record and used the letters "R.N." after said signature and had on three occassions signed her name on a billing form using the initials "R.N." following her signature, when in fact the Respondent was not a registered nurse in the State of Vermont. The Vermont State Board of Nursing concluded this showed the Respondent was guilty of unprofessional conduct in willfully and repeatedly violating Vermont's statutes governing the practice of nursing, in that she did practice professional nursing without being duly licensed.
Recommendation It is recommended that the charges placed against Hermine Ledoux Lane, L.P.N., under license no. 05372-1 be dismissed. DONE and ENTERED this 11th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Life Building Jacksonville, Florida 32202 Hermine Ledoux Lane 51 North Union Street Burlington, Vermont 05401
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In mid-January of 1978, the Bureau of Records Administration of the Department of Professional and Occupational Regulation mailed some 90,000 notices of license renewal to nurses currently licensed in the State. These notices contain the information that the nurses' current license expires on March 31, 1978, that failure by the licensee to renew before the expiration date automatically terminates the license, and that the license may be reinstated upon the payment of a fee and evidence that the licensee meets the current standards for practice. The notice further states that the current qualifications include the completion of high school or its equivalent. When the renewal cards and fees were returned to the Bureau of Records Administration, if postmarked on or before March 31, 1978, the Bureau mailed to each individual a renewal certificate for the year commencing on April 1, 1978. Processing time by the Bureau was generally two weeks, though it could take from four to six weeks. After the close of the renewal period, a lapse list was prepared and sent to the Board of Nursing to indicate those individuals who had not renewed their licenses. In 1978, some 4,000 to 5,000 names were on the lapse list. The only acceptable proofs of timely payment of the $6.00 renewal fee was actual receipt of the fee in the Bureau's office, signed certified mail, postmarks bearing a date of March 31st or before, or the tendering of cancelled checks. An application and notice of renewal was mailed to respondent Oliff, who has been a licensed practical nurse since 1968. A renewal certificate was not issued to her by the Bureau because the Bureau did not receive the $6.00 fee. The Bureau prepared and forwarded to the Board of Nursing a lapse card indicating respondent's failure to renew her license. Had the Bureau received respondent's renewal application and fee, it would have issued a renewal certificate to her. Respondent Oliff received the renewal notice and information from the Bureau. She was aware that her LPN license expired on March 31, 1978, and that her failure to renew the same would terminate her license. She was also aware that if her license were terminated, she would have to apply for reinstatement or reregistration with the requirement that she meet current qualifications, among which was the completion of high school or its equivalent. Ms. Oliff did not then and does not now possess this qualification. Nursing is the respondent's sole means of support, and she is also responsible for the support of her retarded daughter, a grandchild and her mother. It was Ms. Oliff's testimony that, on or about February 12, 1978, she wrote a $6.00 check made payable to the Board of Nursing, placed the check in the return envelope which was provided in the renewal notice and placed the stamped envelope in the United States mail. This testimony is substantiated by a copy of respondent's check register and by the testimony of Ms. Frances Fisher, a friend who was with respondent when she prepared the envelope and when she took it to the post office in St. Petersburg. Respondent Oliff did not become particularly concerned when she did not receive her renewal certificate before March 31, 1978, because in two previous years she had not received her renewed license. On those occasions, she had been able to obtain her license by showing the cancelled checks. Respondent came to Tallahassee on the evening of March 31, 1978, on other business. On the first working day thereafter, April 3, 1978, she went to the Department of Professional and Occupational Regulation and inquired about her license. It was at this time that respondent learned that her license had been terminated because the Department had not received her check or renewal form. Respondent tendered a $6.00 check to the Board of Nursing. This check was returned to her with the explanation that her license could not be renewed for $6.00. She was advised to place a tracer on her original renewal application and check and was informed that if she provided proof of the proper postmark or of a cancelled check, the renewal would be issued. A tracer or mail nondelivery report was placed by respondent with the U.S. Postal Service. Respondent was advised that the Postal Service was unable to locate the letter. Respondent applied for reinstatement. This was denied by the Board of Nursing on the grounds that respondent did not meet the current qualifications for a licensed practical nurse; to wit: the completion of an approved four year high school course of study or equivalent thereof.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that: The Board of Nursing deny respondent's reinstatement application for failure to meet current standards for practice; and The Board of Nursing issue a renewal license for 1978-79 to the respondent upon the respondent's tender of the renewal fee and completed application. Respectfully submitted and entered this 29th day of November, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 COPIES FURNISHED: Judson M. Chapman Horne, Rhodes, Jaffry, Stephens, Bryant, Horne and Chapman Post Office Drawer 1140 Tallahassee, Florida 32302 Julius Finegold 1107 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson State Board of Nursing 6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Karen J. Workman Oliff P.O. Box 3121 CASE NO. 78-1337 St. Petersburg, Florida 33731 As a Licensed Practical Nurse License Number 20183-1 (Terminated) /
The Issue Whether Respondent is guilty of unprofessional conduct, possessed a controlled substance for other than a legitimate purpose, and/or made a false report, knowing same to be false.
Findings Of Fact Respondent, at all times relevant here to, was a licensed practical nurse in the State of Florida, having been issued license no. PN 0702091, and she was employed at Oak Manor Nursing Center in Largo, Florida. Respondent was assigned to the care of terminally ill patient M. G., whose physician's orders called for administration of Demoral, 50 mg. every four hours as needed for pain. Upon reporting for duty at 3 p.m. on June 17, 1989, Respondent checked the narcotics for which she would be responsible on the 3-11 shift with the nurse being relieved and found all properly accounted for. Respondent had possession of the key to the narcotics locker on her wing. At approximately 4:45 p.m. on June 17, 1989, Respondent took four of five ampules of Demoral in a package that had been crushed to Ray Grondin, R.N., her supervisor. Grondin observed what appeared to be small needle holes in the crushed ampules and made arrangements to have the next shots administered by Respondent monitored and to have urine samples of Respondent and the patient taken for analysis. At 6:40 p.m. on June 17, 1989, Respondent administered what purported to be Demoral to patient M. G. This injection in the buttocks was witnessed by Rosemary Griffin, L.P.N. Griffin testified to no apparent change in M. G. immediately following the injection which would indicate relief from pain. Some four hours later, urine specimens were take from patient M. G. and Respondent, labeled and placed in a refrigerator from which these specimens were subsequently removed for laboratory testing. A lab report on the specimen marked as taken from M. G. was subsequently returned to the nursing center, and this report showed no evidence of Demoral. The specimen placed in the refrigerator labeled to be from Respondent disappeared some time between the time it was placed in the refrigerator and the return of the lab report to the nursing center. No chain of custody was established for these specimens, the refrigerator in which they were stored was apparently unlocked and available to anyone in the vicinity, and no one could testify with certainty that the lab report (Exhibit 4) was on the urine sample taken from patient M. G. Respondent denied any misuse of Demoral by her. In her answers to request for admissions (Exhibit 2), she state that R. N. Grondin was in the medication room when the hypodermic was prepared for the 6:40 p.m. injection, and that the urine specimens remained in the refrigerator several days before being picked up by the lab. At the hearing, L.P.N. Griffin, who witnessed the injection, testified that she did not observe the hypodermic syringe being filled. Grondin's testimony did not address this issue.
Recommendation It is recommended that a Final Order be entered finding Respondent not guilty of all allegations in the Administrative Complaint filed March 9, 1990. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0752 K. N. AYERS 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 27 day of November, 1990. Sherri Lynne Hartley 5821 90th Avenue North Pinellas Park, FL 34668 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether Petitioner's nursing license should be reinstated.
Findings Of Fact Petitioner was first licensed as a registered nurse on March 28, 1977. Throughout, Petitioner has renewed her license by paying her bi-annual license fees. Petitioner's renewals have included times when her license was suspended. At the time of the hearing, Petitioner's license was active but suspended. The license was also delinquent for Petitioner's failure to pay her 1998 bi-annual renewal fees. The license was not inactive. Since the hearing, Petitioner's license has been nullified. In her teens, Respondent suffered a serious and permanent injury to her neck and back in an automobile accident. The injury caused and still causes chronic pain, including migraines and neck pain. Because of her pain, Petitioner was prescribed opiates in her teens. By her twenties, Petitioner was addicted to those opiates. Petitioner's drugs of choice were Demerol and Dilaudid. She has been advised that her neck pain will get worse over time. Subsequent to Petitioner's initial licensure, Petitioner accumulated an extensive criminal history related to her drug use. Her criminal history includes petty larceny, attempting to obtain dilaudid by fraud, attempting to obtain a controlled substance by fraud, possession of a controlled substance, smuggling drugs into a prison, and smuggling drugs into a rehabilitation facility. On April 15, 1977, less than a month after her initial licensure, the Department of Professional and Occupational Regulation filed an Administrative Complaint against Petitioner (DOAH Case No. 77-0782), which alleged that Petitioner forged four prescriptions for a controlled substance and that Petitioner admitted to abusing Demerol. Following a hearing on the Administrative Complaint, the Hearing Officer found Petitioner in violation of Sections 464.21(1)(b) - unprofessional conduct, (c) - habitual intemperance or addiction to the use of controlled substances (d) - engaging in the possession of controlled substances for other than legitimate purposes, (f) - exhibiting behavior which the board has reason to believe is due to poor physical or mental health and which creates an undue risk that the person would cause harm, and (g) - willfully or repeatedly violating any of the provisions of Chapter 464, or the laws of this state, Florida Statutes (1977). Upon consideration of the Recommended Order, the Board entered an Order revoking Petitioner's license on August 27, 1977. On August 6, 1980, the Board considered Petitioner's first application for reinstatement of her license. The Board denied reinstatement until Petitioner appeared before the Board and documented her present fitness to safely engage in the practice of nursing. On December 4, 1981, the Board considered Petitioner's second application for reinstatement. Petitioner appeared before the Board and submitted a psychological evaluation and supporting correspondence attesting to her rehabilitation. The Board reinstated Petitioner's license on two years' probation. The probationary terms included random blood and urine drug screens, continued rehabilitation counseling with periodic progress reports, and quarterly employee reports. The IPN had not been created at that time. On October 14, 1983, Petitioner executed a Petition For and Notice of Voluntary Relinquishment of License pursuant to Case Nos. 0022916, 0024200, 0028839, and 0031766. Petitioner relinquished her license in the face of charges for allegedly being on duty while under the influence of drugs, introducing controlled substances into a correctional or penal institution by possession of controlled substances, abandoning patients, failing to obey a lawful order of the Board, and being incapable of practicing nursing with reasonable safety to patients by virtue of mental illness, drunkenness or use of drugs. This relinquishment coincided with the first time Petitioner went to prison on drug-related charges. On April 17, 1984, the Department of Professional Regulation filed an Administrative Complaint in Case Nos. 0022916, 0024200, 0028839, and 0031768 alleging failure to comply with probation because the required periodic reports had not been submitted, Petitioner's refusal to submit to a drug screen, testing positive for Dilaudid without a prescription, abandoning patients on two occasions, possession of controlled substances, and use of Demerol while on duty. The Administrative Complaint charged Petitioner with violation of Sections 464.018(1)(f) - unprofessional conduct, (g) - engaging or attempting to engage in the possession of a controlled substance for other than legitimate purposes, (h) - being unable to practice nursing with reasonable skill and safety to patients by reason of use of drugs, and (i) - failing to report to the Department any person whom the licensee knows is in violation of this chapter, Florida Statutes (1981). The Petition for Voluntary Relinquishment not having been presented to the Board, in consideration of the Administrative Complaint on October 19, 1984, the Board again revoked Petitioner's license. The order of revocation was vacated on June 5, 1986, and the voluntary relinquishment entered nunc pro tunc. In 1989, Petitioner had begun methadone treatment for her drug addiction. Methadone is a schedule II controlled substance. At certain therapeutic levels, methadone does reduce or eliminate a person's craving for drugs. However, at non- therapeutic levels, methadone is a potent hallucinogenic and narcotic which does impair the user's abilities and judgment. IPN was started in 1984. IPN serves as an alternative to discipline for nurses with impairments. Impaired nurses are referred to IPN by employers, nurse executives, human resource people, and the Board of Nursing. The first step in entering IPN is an evaluation with an IPN-approved evaluator. IPN does not provide evaluation or treatment. Administrative rules outline the criteria for the minimum standards for providers. An IPN-approved evaluator is required to ensure the evaluator has a background in addictions or mental health, and understandably safety-sensitive issues related to impaired health care practitioners. The evaluator makes a recommendation on the type of treatment or intervention appropriate to the individual nurse. The recommendation takes into account complicating issues such as chronic pain. Chronic pain is an issue because use of other mood-altering chemicals puts the nurse at risk for relapse into addictive disease. Treatment decisions are made by the evaluator, not IPN. Upon receipt of the evaluation, IPN coordinates with the individual nurse to set him or her up in the recommended treatment until treatment is complete. The nurse returns to IPN for monitoring. The terms of monitoring are based on the recommendations of the evaluator or treatment provider. The evaluation also addresses fitness to practice. Fitness to practice is critical and is monitored on an ongoing basis after the initial evaluation. Using the recommendations, IPN formulates an Advocacy Contract which includes the evaluator/treatment provider recommendations, such as individual psychotherapy, as well as standard provisions of participation. Standard provisions of participation include after-care following treatment, participation in weekly nurse support groups, participation in self-help groups such as AA or NA, and random urine drug screens. The standard provisions are based on a national standard. The purpose of the nurse support group is twofold: to provide support to the individual nurse, in such areas as with problem-solving and nursing related issues, and to keep IPN abreast of possible relapse behaviors by participants and the consequent safety to practice issues. On June 14, 1990, the Board considered Petitioner's third application for reinstatement, including evaluations by Randall Greene, D.O. Dr. Greene recommended that, given Petitioner's personality characteristics and the severity and progression of Petitioner's discipline she would never be able to return to clinical nursing without risk of relapse, and would need to be on probation throughout her professional career. Based on Dr. Greene's evaluations, the Board reinstated Petitioner's license under a stayed suspension. The stay of suspension was conditioned on entry into and participation in the IPN. Failure to remain in and successfully complete IPN would result in lifting of the stay and require Petitioner to appear before the Board and document her safety to practice nursing. Pursuant to IPN procedures, on June 19, 1990, Petitioner was evaluated by Molly Webb-Beatty at Vista Pavilion in Gainesville. Ms. Webb-Beatty's prognosis for a relapse-free recovery was extremely guarded due to Petitioner's 20-year opiate dependency and reported chronic back pain. Ms. Webb- Beatty reported that Petitioner chose to continue the slow dose reduction of methadone use as prescribed by her methadone treatment provider. Petitioner would contact Vista Pavilion when she neared the 20 milligram-level for possible detox and treatment with IPN. Petitioner entered into an Advocacy Contract with IPN. At that time the standard Advocacy Contract period was two years. Petitioner's Advocacy Contract specifically stated that participation dates in IPN would be set after Petitioner detoxed off methadone at a dose reduction of one to two milligrams per week. In 1990, IPN had an abstinence based policy. IPN did not recognize Methadone treatment as a legitimate alternative treatment for drug dependency. Therefore, Petitioner was required to be in the detoxification process to enter IPN. The Board's and IPN's 1990 abstinence policy was based on the American Society of Addiction Medicine's (ASAM) national standard of treatment for chemical dependency. ASAM is a nationally recognized authority in the area of addiction and addiction treatment. It certifies physicians in addiction medicine and sets treatment standards. Currently, the policy of ASAM is that the goal of addiction treatment is generally abstinence. However, methadone treatment is recognized as a legitimate alternative to abstinence in exceptional cases. IPN approved Petitioner to practice nursing in a non- clinical setting within six months of entering IPN. On July 11, 1990, Petitioner requested an appearance before the Board on the grounds that IPN was unaware of or did not understand her methadone treatment. By a Final Order on Reinstatement filed October 24, 1990, the Board of Nursing reinstated the relinquished license of Petitioner on a stayed suspension. The stay was conditioned upon Petitioner's participation in the IPN. Failure of the Petitioner to remain in IPN would result in lifting of the stay and imposition of the suspension. Petitioner proceeded with the detoxification process for several months until she became pregnant, at which time detoxification was stopped. After delivery of her child, Petitioner started the detoxification process again, but became uncomfortable and resistant to the idea of detoxification. As a result, IPN arranged in 1992 for a new evaluation to address the methadone issue. IPN sent Petitioner to Dr. Ken Thompson, certified as an addictionist by ASAM. Dr. Thompson expressed concern about the stability of Petitioner's recovery program and recommended that Petitioner participate in IPN until she was fully off methadone for two years, no clinical nursing practice until fully tapered off methadone (although it would be a clinical decision by her treating physician whether tapering off methadone is appropriate), and continued evaluation. IPN approved Petitioner to continue practice in a non- clinical setting. In 1993, IPN offered Petitioner another opportunity for evaluation of her methadone maintenance status and a possible return to clinical nursing. IPN sent Petitioner to Dr. Michael Sheehan. Dr. Sheehan, who is certified in addiction medicine, evaluated Petitioner on August 18 and December 13, 1993. Dr. Sheehan agreed with Dr. Thompson and Dr. Greene that Petitioner was unable to pursue unsupervised nursing, and should not have access to narcotic medications. He also recommended continued participation in IPN and an indefinite probation due to her continued use of a Schedule II controlled substance. Dr. Sheehan believed that Petitioner could enter clinical nursing practice with these restrictions, even with continued methadone maintenance. Dr. Sheehan did also offer, as an alternative, very slow reduction in methadone in and effort to detox Petitioner. Dr. Sheehan's evaluation was the first time any evaluator or treatment provider had suggested Petitioner should remain on a methadone maintenance program rather than detoxifying to total abstinence. The opinion was given at a time when attitudes toward methadone treatment was changing both nationally and in Florida. Subsequent to this evaluation, Linda Smith, Executive Director of IPN, began researching the issue of clinical practice by persons maintained on methadone. She contacted authorities within the state. She also researched other states to determine what their methadone policies were. Ms. Smith found that only New York was permitting health care practitioners to continue methadone maintenance while practicing health care. IPN also brought the issue of clinical practice to the Board of Nursing in 1994. At that time, the Board's position was an IPN should be abstinence-based due to safety to practice issues. Over time, Petitioner became less and less compliant with the provisions of her IPN Advocacy Contract. She was transferred to a new nurse support group due to the lack of tolerance of her treatment modality in her original group. During 1994, Petitioner refused to attend her nurse service group for several weeks at a time. For example, Petitioner did not attend in December and missed most of January 1995. IPN attempted to work with Petitioner regarding attendance at nurse support groups. When an issue of negative attitude with regard to methadone surfaced, IPN approved a transfer to a new support group and talked to the new group facilitator to make sure it would not be an issue. Petitioner complained about the difficulty in coordinating schedules between the support group and her work. IPN discussed options with her for working out her schedule, but insisted that she would have to take responsibility for implementing such arrangements since there were no other support groups available in her area. Petitioner was also required to submit urine drug screens to IPN. Until 1994 Petitioner's drug screens were collected at Quad County, Petitioner's methadone treatment location. In 1994, IPN changed its system for random urine drug screens to standardize the screens in terms of collection and the number of drugs for which the screen would be tested. Prior to that time, each participant dropped urine samples for screening at a location to be determined on an individual basis. The locations were not standardized, and the screens often did not test for Demerol, the number one abuse opiate. In 1994, participants were required to have a comprehensive health care practitioner screen done, which included Demerol, the most commonly abused opiate, as well as drugs the literature indicated were increasing in abuse, such as Vicodan, Dilaudid and Ultra-Sound. Drug screens would be done at a facility approved by IPN which ensured the chain of custody of the tests, and allowed IPN to receive the screens within 48 hours in the IPN offices. The new policy brought IPN in line with the national standards for randomized drug screens. Ms. Smith was familiar with the drug screens being done at Quad County, which were not comprehensive enough to meet IPN standards. In addition, the drug screens were not received contemporaneously in the IPN office, so IPN was not aware of Petitioner's continued legitimate use of Darvocet. Petitioner refused to comply with the standardized drug screen system. Petitioner failed to show for her drug screen tests on June 8, 1995, July 28, 1995, September 11, 1995, and October 24, 1995. Petitioner testified that she refused to participate in the standardized drug screen system on the advice of her lawyer. In 1995, IPN again brought the issue of clinical practice to the Board of Nursing. At that time the Board agreed that there may be individual nurses whose preferred treatment modality was methadone rather than abstinence; however, those nurses could only work in a non-clinical setting. On November 3, 1995, Petitioner was dismissed from IPN for non-compliance with the requirements of the impaired practitioner program. On November 8, 1995, IPN notified the Board that Petitioner was dismissed from IPN due to a pattern of noncompliance during her IPN participation, with an extensive summary of Petitioner's participation in the program. She was not dismissed because of her refusal to detoxify from methadone. In February 1996, Petitioner appeared before the Board, represented by attorney A. Bice Hope, on IPN's recommendation to lift the stay of suspension. By a Final Order No. AHCA 96-00405, filed April 3, 1996, the Board lifted the stay of suspension and suspended Petitioner's license. Again the suspension would be stayed if Petitioner entered and participated in IPN. Petitioner filed an appeal of Final Order No. AHCA 96- 00405. The Final Order was affirmed per curiam by the First District Court of Appeals in McCall v. Agency for Health Care Administration, Board of Nursing, Case No. 96-01678, Opinion filed March 11, 1997 and Mandate dated April 24, 1997. At the hearing, Petitioner attempted to dispute the issue of whether or not she was in compliance with her IPN Advocacy Center at the time of her suspension in 1996. However, the issue of whether she was in violation of the Board's order by failure to comply with her advocacy contract has already been decided by the First District Court of Appeal in its per curiam affirmance of the Board's final order. On October 8, 1997, the Board considered Petitioner's fourth application for reinstatement of her license. Petitioner requested that her license be reinstated without IPN participation, and that she be permitted to practice in clinical nursing. The Board found that the probation proposed by Petitioner was not a reasonable alternative to participation in IPN, and further found that she had not demonstrated she was capable of practicing nursing with reasonable skill and safety. Therefore, the request for reinstatement was denied. In 1998, Dr. Sheehan testified that methadone treatment does not eliminate the risk of relapse for a person addicted to narcotic drugs. He was unable to say definitely that a person not on methadone has a higher risk of relapse than a person being maintained on methadone. Indeed, the risk of relapse is always present for any addict regardless of treatment. However, Petitioner's chronic pain makes it more likely that she may relapse. Dr. Sheehan recommended that Petitioner continue participation in a 12-step program (e.g. Narcotics Anonymous) for the rest of her life. It is reasonable under these circumstances for the Board to require reports from a treatment provider. It is reasonable to require monitoring as long as Petitioner is in a clinical practice setting, with ongoing evaluation of her performance and reports to IPN or the Board on a monthly or bimonthly basis. Random urine drug testing through IPN is appropriate for Petitioner. In addition, Dr. Sheehan recommends participation in a nurse support group, particularly if Petitioner is in clinical nursing, to obtain support from Petitioner's peers. However, that group should be a group which accepts methadone treatment. IPN, on the other hand, has a clinical staff that includes individuals with master's degrees in nursing or mental health qualified employee fitness program professionals and certified addictions professionals. All of the clinical staff has experience in addiction and mental health, which is a job requirement. Facilitators for IPN nurse support groups are expected to understand the issues of addiction, mental health, and group process. Facilitators also receive training in relapse prevention. Because of IPN's expertise in impairment issues of nurses that the Board relies on IPN. The Board's requirement that IPN be involved in Petitioner's treatment and reinstatement is reasonable. Again in 1998, IPN presented the issue of methadone maintenance and clinical practice to the Board. While formulating a policy in this regard, Ms. Smith discussed the policy with Dr. Thompson who had previously evaluated Petitioner and recommended that Petitioner not engage in clinical practice unless she met with certain conditions. Those conditions included monitoring by an addiction specialist; participation in other aspects of a recovery program not solely those for methadone treatment, including therapy, similar groups, and urine drug screening; and performance evaluation. Dr. Thompson did not change his recommendation of indefinite monitoring. These recommendations reflect the changed attitude among addiction professionals regarding methadone maintenance. In August 1998, the Board and approved the new IPN policy on methadone maintenance. The policy incorporated the ASAM policy that abstinence should be the goal of choice for chemical dependency, but may not be feasible for all opiate- dependent persons. Further, the policy required that methadone maintenance treatment include behavioral, psychodynamic and 12- step approaches combined with pharmacological intervention to provide a broad spectrum of treatment. IPN guidelines for acceptance and participation of methadone patients include: the opinion of two ASAM-certified addictionists that methadone rather than abstinence is the treatment of choice for the individual nurse; the demonstrated inability to detox from methadone by the individual nurse; on-going psychotherapy with an approved specialist; demonstration of nursing competence through performance-based skills testing, a procedures examination, and neuropsych testing; on-going evaluation by an IPN certified addictionist; Board approval to engage in clinical nursing upon demonstration of competence via the stated testing; and monitoring in clinical practice for a minimum of five years, and thereafter until discontinuance is approved by the Board. The University of Florida has a program that would provide some of the testing required by the policy, including a neuropsychology testing that evaluates such areas as stability, judgment, concentration, and decision-making. In fact, IPN worked with the university to set up an individual plan for Petitioner. The program includes a simulated laboratory, examination, neuropsych testing, and provides feedback regarding remediation. Regardless of her chemical dependency, Petitioner has only practiced clinical nursing for 27 months since she was licensed in 1977, all prior to 1983. The field of nursing has been revolutionized since 1983. Nursing has new practice settings, new technologies, new drugs, new way of treating diseases, and new roles for the professional nurse. Petitioner needs extensive remedial education to reenter clinical nursing. Petitioner's continuing education over the last 10 years might keep her up to date on theory, but clinical remediation is necessary for clinical practice, because it is clinical skills that degrade fastest. Good clinical judgment cannot be learned without clinical training. Evaluating other nurses through facility surveys does not substitute for hands-on clinical experience. Therefore, it is reasonable that Petitioner comply with this requirement. In Petitioner's case, upon approval of the new IPN policy, the Board agreed to allow Petitioner to return to clinical nursing if she met the condition of the policy, and after she demonstrated six months of compliance with IPN requirements because of her previous history of noncompliance. The Board even agreed to consider termination of monitoring all together if Petitioner did well for five years in clinical practice. Petitioner declined the Board's conditions. In 1997 Petitioner filed another request for reinstatement of her license. By its Order on Petition for Reinstatement No. DOH 97-0450, filed December 23, 1997, the Board denied Petitioner's request for reinstatement. Petitioner was notified that her license would expire on July 31, 1998, unless she submitted the appropriate fees. Petitioner admitted that she received the renewal notice. Petitioner also admitted that she has not paid her license fees in over two years and has not paid them to date. Petitioner knew or should have known that she was obligated to renew her license while it was on suspension. She has done so in the past. The Board has notified licensees through its official newsletter that suspended licenses are subject to being renewed. Since Petitioner has been at the same address of record for all relevant times, it must be presumed that she received the newsletter sent to her. The staff of the Board of Nursing office is aware that suspended licenses are subject to renewal. The procedure is clearly spelled out for staff members handling general calls from the public. Petitioner testified that she called the Board of Nursing office and was told she did not have to renew her license if it was suspended. However, she was unable to identify the person who made such statement, or when her call was made. Petitioner's reliance on the caller's advice was not reasonable since she is well aware of the requirements for renewing her license and has done so in the past. Petitioner has failed and refuses to enter into and participate in IPN. Participation in IPN is a condition of the Final Orders of the Board of reinstatement of her license. Petitioner has failed to comply with the Final Order No. AHCA 96-00405 as required by Section 464.018(3), Florida Statutes, and her license is currently suspended. The conditions placed on her by the Board were reasonable. It is up to Petitioner to comply with those conditions. Moreover, during the pendency of this action Petitioner's license became delinquent. The delinquency lasted for more than two years. By operation of law, Petitioner's license was nullified. Therefore, there is no license on which the Board may take action.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the application of Rebecca B. McCall for reinstatement of her license as a registered nurse be denied and this action be dismissed as moot since Petitioner's license has expired. DONE AND ENTERED this 24th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of October, 2000.
Findings Of Fact Several days prior to November 1, 1974, respondent had gone to a licensed medical doctor complaining of nervousness and a swollen and painful left leg. This doctor diagnosed her condition as plebitis and prescribed antibiotics and also the drug Darvon for pain. There was no evidence of elevated blood pressure at this time. On November 1, 1974, the respondent was on duty as a licensed practical nurse at the Cor Jusu Convalescent Center in Tampa, Florida. At approximately 9:00 P.M., the respondent began to have back pains and feel nervous and shaky. The respondent could not remember whether or not she had taken the prescribed drug Darvon, which can produce light-headedness, prior to going on duty that day. Another nurse on duty on the same floor, Ms. Ems, took respondent's blood pressure, which read 140 over 110. The respondent testified that she feared that she was going to have a stroke. She attempted to call her doctor, but could not reach him. She testified that she then called another doctor, Dr. Decobo, who told her to come in to see him the next day. Dr. Decobo testified that he could not remember whether or not he talked to respondent over the telephone on November 1, 1974. The respondent then decided to and did consume the drug Vistaril, which she thought to be helpful in relieving apprehension. This drug was obtained from those prescribed for a patient, Mrs. Falty. This was not a routine medicine for Mrs. Falty, but was to be administered when needed. Respondent informed nurse Ems that she had consumed the Vistaril. There was some dispute in the evidence as to the extent of respondent's ability to perform her duties after taking the drug Vistaril. Respondent admitted that she was unsteady and dizzy, but testified that she laid down for awhile and finished her charting. The only evidence of any harm being done by respondent was that a solution was spilled in a patient's room. The other nurse on duty, Ms. Ems, called the Director of Nursing, Ms. Kriston, and she in turn called respondent on the telephone. Ms. Kriston testified that respondent's speech was "slightly slurred". While she could not recall the exact conversation, Ms. Kriston felt that respondent was incoherent because she could not understand why she should go home. The respondent testified that she did not go home until her shift ended at 11:00 P.M. because she wanted to finish her charting and because she felt that there were too many patients for Ms. Ems to carry alone. She testified that at the time she felt she could carry out her duties until her shift ended. In retrospect, respondent admitted that she did not use good judgment and that she should have left the hospital at an earlier time. Respondent received her license as an L.P.N. in 1969. There was no evidence of any prior charges of immoral or unprofessional conduct on her part.
Recommendation While respondent is guilty of unprofessional conduct which is grounds for discipline under F.S. 464.21(1)(b), the evidence adduced at the hearing illustrates substantial mitigating factors which bear directly upon the penalty to be imposed. The event complained of occurred over a period of only two hours, a portion of which time respondent spent lying down. No patient was harmed during this two hour period. The penalty of suspension of a professional license should always be sparingly and cautiously used. Pauline v. Borer, 274 So.2d 1 (Fla. 1973). It is my conclusion that the record in this case demonstrates that suspension would be too harsh a penalty for this respondent, and it is recommended that the petitioner Board of Nursing place respondents on probationary status for a period of six months, with appropriate sanctions and/or reports, as prescribed by the Board within its discretion. Such a penalty would adequately safeguard and protect the public health, maintain the dignity of the nursing profession and sufficiently punish the licensee commensurate with her conduct. Respectfully submitted and entered this 5th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Geraldine B. Johnson, R.N. Ms. Janet G. Zeller Investigation and Licensing 122 Brentridge Drive 6501 Arlington Expressway, Brandon, Florida 33511 Jacksonville, Florida 32211 Julius Finegold, Esquire Frederick L. Joiner, Esquire 1130 American Heritage Build. 4616 West Kennedy Boulevard Jacksonville, Florida 32202 Tampa, Florida 33609
The Issue By an Administrative Complaint executed May 27, 1986 and filed with the Division of Administrative Hearings on July 11, 1986, Respondent is charged, pursuant to Sections 464.018(1)(f) and/or (h) Florida Statutes (1985) with "unprofessional conduct which departs from minimal standards of acceptable and prevailing nursing practice; and/or being unable to practice nursing with reasonable skill and safety to patients by reason of use of alcohol or drugs." All charges are limited to events allegedly occurring May 6, 1985.
Findings Of Fact The Respondent is a licensed practical nurse. On May 5-6, 1986, Respondent was employed at the Orlando Health Care Center as a licensed practical nurse on the 11:00 p.m. to 7:00 a.m. shift. At that time, Jeanette Crandall, a 68 year-old female patient roomed with Lorene Johnson, another elderly female patient who has a history of "wandering." Mrs. Crandall testified that early on the morning of May 6, 1986 she observed Respondent alone attempt to place Lorene Johnson in bed and that when Respondent could not get Lorene Johnson into bed due to Johnson's resistance, Respondent struck Johnson with Johnson's shoe two or three times in her head resulting in a one and a half inch laceration causing Johnson to bleed. Although Ms. Crandall's testimony is somewhat disjointed as to precise time sequence, it is credible. In making the foregoing finding, the testimony of Linda Oram, nurse's aid, has not been overlooked. Ms. Oram testified upon behalf of the Respondent that when she first saw Lorene Johnson, witness Oram was with Respondent near the nurse's station and that patient Johnson came out of her room and was already bleeding. Ms. Oram stated she did not see how Ms. Johnson received her injuries nor did she see Respondent batter Ms. Johnson. Ms. Oram helped Respondent put Johnson back to bed but did not relate that Johnson had her shoes in her hand or that she resisted Oram and Respondent. Ms. Gram carefully explained that she was not present with Respondent all the time prior to putting Johnson back to bed and all the time afterwards. This evidence of Ms. Gram is not contradictory of Ms. Crandall's testimony. Moreover, there is the testimony of patient Lucille Diel that she subsequently heard Respondent telling Ms. Johnson "I didn't mean it," and the testimony of Pam Warner that Respondent told Warner that Lorene Johnson "just kept hitting me and hitting me. She was trying to kill me." Both Oram and Respondent confirm that Respondent applied a band-aid to Johnson's head injury when the two entered the room together despite profuse bleeding. Respondent's witness Oram is a recovering alcoholic and friend of Respondent who is also a recovering alcoholic. Her initial impression of Respondent's behavior was that Respondent was intoxicated and she stated this impression to a number of other witnesses on May 6, 1986. Her testimony at formal hearing did not contradict this initial impression but was expanded to include her belief that Respondent might also have been distressed on May 6 due a fight with Respondent's boyfriend. Oram felt Respondent was not in a condition to work. Jeanette Crandall was familiar with intoxicated people and testified that Respondent was drunk when she hit Johnson. Linda Ciekot, the licensed practical nurse who came on to relieve Respondent at 6:50 a.m. for the beginning of the 7:00 a.m. May 6, 1986 shift found Respondent with her head down on the desk, sweating profusely and responding to questions with slurred speech. She observed Respondent at that time to have glassy eyes, a staggering gait and to smell of alcohol. Ciekot formed the impression Respondent was very intoxicated. At this time several witnesses observed that the medicine cart and medicine Room in Respondent's charge were both unlocked and the cart was messy with doors turned out, all contrary to standard requirements. Respondent acknowledged that she frequently leaves the medicine cart unlocked and is reprimanded by her superiors for it. Pam Warner, a licensed practical nurse was summoned by Ciekot to attend patient Johnson. By that time, Johnson was in the atrium near the nurse's station and still bleeding from her wound. Pam Warner observed that Respondent had slurred speech and was loud and disheveled; she observed no alcohol odor on Respondent in the atrium. Arlene McClellan, a registered nurse coming on the new shift as charge nurse on Respondent's wing, described Respondent at this time as having glassy eyes, a wandering gaze, slurred speech and talking loudly. McClellan smelled alcohol on Respondent's person when she spoke with her privately in the small closed medicine room. These observations by persons familiar with the appearance and behavior of intoxicated persons are consistent with Respondent's being under the influence of alcohol while on duty and it is found that she was under the influence of alcohol while on duty. In making the immediately foregoing finding, Respondent's testimony has not been overlooked. She testified that her distraught condition was due to a violent fight she had had with her boyfriend just before coming to work at 11:00 p.m. May 5 and because of his telephoned threats against herself and her dog during the shift. Respondent maintained she was staggering due to skinned knees incurred May 5 when the boyfriend had dragged her across a parking lot. Her evidence of skinned knees and a series of phone calls and emotional upsets through the shift are corroborated by the observations of Leslie Martinez, another licensed practical nurse who saw Respondent approximately every two hours through the shift up until 4:00 a.m. However, Martinez stated that Respondent seemed herself until 4:00 a.m. when Martinez observed Respondent with a Betadine-stained uniform, messy nurse's station, unlocked medicine cart and medicine room, and slurred speech. Martinez' description is similar to that of other witnesses at approximately 6:30 a.m. It strains credulity to accept Respondent's version that so many medical personalities who are experienced with intoxicated persons could have confused the odors of imbibed apple juice and spilled Betadine (an iodine-based solution) with the odor of imbibed alcohol or confused the symptoms of acute emotional distress with the symptoms of being under the influence of alcohol. Her explanation is rejected. Despite elaborate speculation by Arlene McClellan based on uncorroborated hearsay, Petitioner did not establish by any competent direct evidence that any drugs were missing from the medicine cart or room or that any were ingested by Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Respondent be suspended for a period of three years with leave to reapply after one year upon a showing to the Board of Nursing that her alcoholism is under control, that she is rehabilitated, and that she is fit to practice nursing. DONE and Ordered this 26th day of January, 1987 in Tallahassee, Florida. ELLA JANE P. DAVIS 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 26th day of January, 1987. APPENDIX TO RECOMMENDED ORDER Rulings pursuant to Section 120.59(2) F.S. upon Petitioner's proposed findings of fact (FOF): Accepted FOF 1. Accepted FOF 2. Accepted but not adopted as subordinate and unnecessary. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 3. Accepted FOF 3. Accepted but not adopted as subordinate and unnecessary. Accepted FOF 5. Those portions supported by the record as a whole are accepted in FOF What is rejected is rejected as speculative, without predicate, and as not supported by the record as a whole. Accepted as FOF 5. Accepted that Respondent testified to this but rejected as a finding of fact as not supported by the record as a whole. Rejected as irrelevant what anyone observed concerning Respondent 10 hours after the incident at a time when she was off duty. Accepted but irrelevant for the reasons stated above. Accepted but irrelevant for the reasons stated above. Accepted FOF 5. Accepted FOF 5. Accepted FOF 5. Accepted FOF 3. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's proposed findings of fact (FOF): 1. Respondent has presented no additional argument as to why Petitioner should not have been permitted to reopen its case to present evidence of licensure. The reopening of the Petitioner's case was permitted upon authority of Dees v. State 357 So.2d 491 and Jones v. State 392 So 2d 18. Since Respondent has not availed herself of further argument on that issue in her post hearing proposals, that ruling on the record is reiterated here and the record therefore contains evidence to support licensure of Respondent by Petitioner. Rulings pursuant to Section 120.59(2) F.S. upon Respondent's alternative proposed findings of fact (FOF): Accepted FOF 1. Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Accepted but not adopted as not determinative of any issue at bar (See FOF 5). Rejected as not supported by the record. Rejected as not supported by the record. Mrs. Crandall is unclear about whether Mrs. Oram was present or came in later from behind her. Mrs. Oram was not with Respondent at all times prior to going into the room with her. It would appear Ms. Johnson wandered on several occasions that night and Mrs. Crandall is clear Mrs. Oram was not assisting Respondent when the blow was struck. Accepted FOF 3. Accepted FOF 3. Accepted FOF 3. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected as not supported by the record as a whole and upon the lack of credibility of the Respondent. Rejected. Observation of Petitioner's Exhibits 1 and 2 suggests this type of injury is consistent with the sandal used. Rejected as not supported by the record as a whole. Accepted but not adopted as not determinative of any issue at bar. (See FOF 5) Accepted FOF 6. COPIES FURNISHED: John Namey, Esquire 22 East Pine Street Orlando, Florida 32801 Francisco Colon, Jr., Esquire 1 North Orange Avenue Suite 500 Orlando, Florida 32801
