The Issue The issue is whether Petitioner's application for licensure by examination as a dietitian/nutritionist should be granted or denied for the reasons stated in the Corrected Notice of Intent to Deny1/ (CNOI).
Findings Of Fact The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by examination as a dietitian/nutritionist. § 468.509, Fla. Stat.; Fla. Admin. Code R. 64B8-40.003(1)(a). The requirements for licensure by examination as a dietitian/nutritionist are found in section 468.5093/ and rule 64B8-42.002.4/ Ivy Shivers has worked for the Department of Health for over 24 years in a variety of positions. Since 1997, she has worked in the Medical Quality Assurance (MQA) section. She is currently a regulatory supervisor consultant. Ms. Shivers supervises two MQA employees and has oversight of the administrative processes for the Council, including the application process, Council agenda preparation, licensure maintenance, continuing education activities, and related issues. Neither she nor the two MQA employees she supervises have any authority over any application other than to ensure that the Council has a complete application for its review, consideration, and determination. Ms. Mollan's application was handled in a routine fashion. Once the noted deficiencies were resolved, and Ms. Mollan's application was complete, it was submitted to the Council for its review and determination. Her testimony was credible. Jodee Dorsey, Ph.D., has an extensive educational and professional background in dietetics and nutrition. Dr. Dorsey is a Florida-licensed dietitian/nutritionist, and she is also a registered dietitian. She served on the Council from 2004 through 2009. While on the Council, Dr. Dorsey performed those duties as set forth in the statutes and rules governing the Council. Those duties included reviewing applicants (and applications) for licensure, reviewing requests for temporary permits, establishing fees, adopting rules as necessary,5/ and other responsibilities. Dr. Dorsey was accepted as an expert in dietetics and nutrition, including the educational requirements for licensure in Florida. Several years ago, Ms. Mollan attended Florida Southern College6/ in Lakeland, Florida. Thereafter Ms. Mollan obtained an associate of arts (AA) degree from Valencia Community College, in Orlando, Florida.7/ Her AA was in general education and business courses. In 2008, Ms. Mollan transferred her AA (108 credits) to and enrolled in Kaplan University, Online (KU). Ms. Mollan enrolled in the KU program "XVI Advanced Start Bachelor of Science in Health and Wellness – Nutrition." The KU course catalog reflected that two of the prerequisite requirements for the program included anatomy and physiology I and II. Ms. Mollan did not complete either course at her undergraduate programs, nor did she complete either course while at KU. Ms. Mollan chose KU based on its representation that, once she was finished, she "would have a bachelor's degree in Health and Wellness in their health science college and that's what" she was pursuing. On January 26, 2010, Ms. Mollan earned a "Bachelor of Science" (Degree) from KU. On August 31, 2011, the Council received Ms. Mollan's application for licensure by examination. Her initial application failed to contain all the required information. The Council staff requested the missing information from Ms. Mollan. Once the additional information was received, Ms. Mollan's completed application was placed on the Council agenda. The KU course descriptions provided did not reflect a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study.8/ The KU courses did not specify the requisite dietary or nutritional elements for courses to be deemed equivalent. When asked about specific KU courses she had taken, Ms. Mollan's testimony was frequently couched in phrases of "I believe" it met the requirements, or it was "my understanding" that the courses were aimed specifically at becoming a dietician. Her persuasiveness was diminished greatly by the multiple uses of these equivocal terms. Further, based on her description of one specific course, HW 499 (Bachelors Capstone in Health and Wellness), Ms. Mollan confirmed that she did not make any progress towards any new nutritional or dietary educational goals or objectives in that particular class, but rather "they just took all of the stuff that we had done over the years and put it all together in a neat little package and said this is everything that you've accomplished." Ms. Mollan's course description does not match the course description that was provided in the KU catalog. KU measures its course credits in quarter hours. It was established that, although Ms. Mollan had 40 quarter hours of credit in her major program, not all of those courses met the "major course in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course study" requirement. Additionally, when converted to semester hours, she only had 26.67 semester hours of the requisite course of study. Thus, Ms. Mollan failed to obtain the requisite semester hours or equivalent major course of study hours. At the October 28, 2011, general meeting, the Council was to make a "review of her [Ms. Mollan's] education and experience." Based on that review, the Council unanimously voted to deny the application for licensure by examination "on the basis the course of study was not deemed equivalent as specified in the Section 468.509, Florida Statutes." The degree Ms. Mollan obtained from KU does not reflect a baccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, Dietetics and Nutrition Practice Council, enter a final order denying Ms. Mollan's application for licensure by examination as a dietitian/nutritionist in Florida. DONE AND ENTERED this 16th day of July, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 16th day of July, 2012.
The Issue Whether the Petitioner's application for licensure by endorsement as a Dietitian/Nutritionist should be granted or denied for the reasons stated in the Notice of Intent to Deny dated April 15, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by endorsement as a dietitian/nutritionist. § 468.509, Fla. Stat. (2008)1; Fla. Admin. Code R. 64B8-40.003(1)(a). On or about January 16, 2008, the Council received Ms. Alonso's application for licensure by endorsement as a dietitian/nutritionist pursuant to Section 468.513, Florida Statutes. At the time of her application, Ms. Alonso was a certified nutritionist in the State of Washington, having been issued license number NU00001939 on April 11, 2007. Ms. Alonso is not licensed in the State of Washington as a certified dietitian, nor has she taken a state or national examination for licensure as a dietitian or as a nutritionist. In 1994, Ms. Alonso earned a Bachelor's of Science degree from Cornell University in biochemistry, and, in 2000, she earned a Master's of Science degree from the University of Texas, School of Public Health, in nutrition and immunology. Prior to moving to Florida in early 2008, Ms. Alonso worked as a nutritionist in Washington State. Prior to receiving her certification as a nutritionist in Washington State, she worked as a nutritionist in several clinics under the supervision of medical and naturopathic doctors for approximately four years. During this time, she performed nutritional assessments and developed nutritional programs for the clinics' patients and provided nutritional support for the doctors working in the clinics. Ms. Alonso was licensed pursuant to Section 18.138.030, Revised Code of Washington, which sets forth the requirements for certification as a dietitian and as a nutritionist in the State of Washington. Section 18.138.030, Revised Code of Washington, provides in pertinent part: An applicant applying for certification as a certified dietitian or certified nutritionist shall file a written application on a form or forms provided by the secretary setting forth under affidavit such information as the secretary may require, and proof that the candidate has met qualifications set forth below in subsection (2) or (3) of this section. Any person seeking certification as a "certified dietitian" shall meet the following qualifications: Be eighteen years of age or older; Has satisfactorily completed a major course of study in human nutrition, foods and nutrition, dietetics, or food systems management, and has received a baccalaureate or higher degree from a college or university accredited by the Western association of schools and colleges or a similar accreditation agency or colleges and universities approved by the secretary in rule; Demonstrates evidence of having successfully completed a planned continuous preprofessional experience in dietetic practice of not less than nine hundred hours under the supervision of a certified dietitian or a registered dietitian or demonstrates completion of a coordinated undergraduate program in dietetics, both of which meet the training criteria established by the secretary; Has satisfactorily completed an examination for dietitians administered by a public or private agency or institution recognized by the secretary as qualified to administer the examination; and Has satisfactorily completed courses of continuing education as currently established by the secretary. * * * Any person seeking certification as a "certified nutritionist" shall meet the following qualifications: Possess the qualifications required to be a certified dietitian; or Has received a master's degree or doctorate degree in one of the following subject areas: Human nutrition, nutrition education, foods and nutrition, or public health nutrition from a college or university accredited by the Western association of schools and colleges or a similar accrediting agency or colleges and universities approved by the secretary in rule. The State of Washington has two certifications, one for dietitians and one for nutritionists. Pursuant to Section 18.139.030(4), Revised Code of Washington, a person qualifies to be licensed as a "certified nutritionist" if the person either meets the requirements for certification as a dietitian or has received a master's degree in the enumerated areas of study. Section 468.509, Florida Statutes, provides: Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency [for Health Care Administration] to take the licensure examination. The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who: 1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant's graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and 2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or 1. Has an academic degree, from a foreign country, . . . * * * The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian. The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section. In contrast to Washington State, Florida has only one certification for dietitians and nutritionists. Pursuant to Section 468.509, Florida Statutes, a person qualifies to be licensed as a "dietitian/nutritionist" if the person either meets the requirements for certification set forth in Section 468.509(2), Florida Statutes, or is a registered dietitian. The requirements for licensure as a dietitian in Washington State are substantially equivalent to the requirements for certification as a dietitian/nutritionist in Florida. The requirements for certification as a nutritionist in Washington State are not, however, substantially equivalent to the requirements for licensure as a dietitian/nutritionist in Florida, because a person in Washington State can be certified as a nutritionist without meeting the requirements for certification as a dietitian if the person has an advanced academic degree.
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 Larisa Alonso failed to satisfy the requirements of Section 468.513(2), Florida Statutes, and denying her application for licensure by endorsement as a dietitian/nutritionist. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 19th day of December, 2008.
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1990.
Findings Of Fact At all times pertinent to the issues herein, HRS had jurisdiction over Respondent, which lawfully operates Hillhaven Convalescent Center, a nursing home facility in Sarasota, Florida. At all times pertinent hereto, the patient census at Hillhaven Convalescent Center exceeded 61. During the period July 13 through 15, 1982, an inspector employed by HRS conducted a survey of Respondent's facility. Among several deficiencies found, all of but one of which were corrected, was one indicating that the duties of the individual hired by Respondent as food services supervisor regularly included food preparation. The individual in question spent 24 hours of a 40 hour workweek as a full time cook. This deficiency was noted on the inspection report and brought to the attention of the provider's representative. A follow-up inspection of the facility was conducted by HRS representatives on February 15 through 17, 1983, at which time it was noted that the prior noticed deficiency had not been corrected. Though the number of hours the food services supervisor cooked had been reduced to 16 per 40 hour workweek, inspectors concluded this was still unsatisfactory and again cited the facility in the report for this as well as other deficiencies in the social services area. In a follow-up inspection on April 7, 1983, the inspector again found that the dietary services supervisor was acting as a cook for 16 or more hours per week. This deficiency was in addition to the continuing social services deficiencies which Respondent admits also continued. Hardy C. Kinney, a nutrition specialist with HRS and one of the individuals involved in the development of the agency's rules regarding food service which are allegedly violated here, indicated that as long as approximately six years ago, a committee was formulated within HRS to develop rules in the area of institutional food services such as here. The committee's concerns were to insure that the food service supervisor be a well trained individual whose job would be to consider the therapeutic nutritional needs of the patients--not to prepare and serve food. It was the feeling of the committee members, garnered from observations of other facilities where the supervisor does both, that when the food service supervisor is cooking and serving, he or she does not have the time to devote to proper patient care. There is a close relationship between food and diet and the welfare of the patient. When a patient is admitted to the facility, the physician writes that patient's nutritional orders. There is some variance permitted for taste and texture changes in the diet to make the food more interesting to the patient. Experience has shown that when the food is more interesting and attractive, the patient takes it better and thereby benefits from eating. As a result, the supervisor needs to talk with patients to determine the patients' preferences as to what foods they like and how they like it cooked. He or she also needs to spend the available work time working out strategies to meet the nutritional needs of the patients and supervising the procuring, receiving and storing of food. In short, the intent of the committee was to minimize the number of distractions the supervisor had to deal with as a nutritionist so as to promote proper patient food care. Mr. Kinney indicated the idea of the committee which developed the rule in question was not to block totally the participation of the supervisor from food preparation in emergency situations. However, it was most definitely the intent of the rule drafters that the food preparation and service was not to be even a minuscule portion of the supervisor's duties, except for emergencies. According to Mr. Kinney, even if a food services supervisor works one hour per week in a nonemergency situation, if this requirement is written into the job description, or is accomplished as a routine task on a recurring basis, the agency considers it a primary duty which is prohibited by the rule in question. It is pertinent to note here that in the instant case, the inspectors were not in any way contending that the rule violation resulted in a diminishment of patient care. To the contrary, Mr. Mitchell, the then incumbent food services supervisor, had, in general, done all that was required. He was not able to accomplish it all in the normal work time, however. His work schedule during the period December 10, 1982, to February 24, 1983, was as follows: Dec. 10-16: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 17-23: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Dec. 24-30: 16 hrs. cook; 16 hrs. off; 16 hrs. supervise = 50 percent cook Dec. 31-Jan. 6: 16 hrs. cook; 24 hrs. off; 16 hrs. supervise = 50 percent cook Jan. 7-13: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Jan. 26-27: 8 hrs. cook; 8 hrs. supervise = 50 percent cook Jan. 28-Feb. 3: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 4-10: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook Feb. 11-17: 24 hrs. cook; 16 hrs. off; 16 hrs. supervise = 60 percent cook Feb. 18-24: 32 hrs. cook; 8 hrs. off; 16 hrs. supervise = 66 percent cook From the above, it can readily be seen that during the period in question, prior to and just subsequent to the first inspection, the food services supervisor spent between 50 and 66 percent of his time in food preparation and service.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent be fined $100 for the violation alleged in the administrative complaint dated April 22, 1983, and $100 each for the violations alleged in Paragraphs (3)(b), (c) and (d) in the administrative complaint dated June 16, 1983, for a total of $400. RECOMMENDED this 3rd day of November, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 3rd day of November, 1983. COPIES FURNISHED: Robert P. Daniti, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 406 Tallahassee, Florida 32301 Stephen H. Durant, Esquire 3000 Independent Square Jacksonville, Florida 32202 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
