The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the record evidence, the following findings of fact are made: Respondent is now, and has been since August 17, 1987, licensed to practice practical nursing in the State of Florida. She holds license number 0876721. Respondent was employed for more than a year as a nurse at Martin Memorial Hospital (hereinafter referred to as the "hospital"), a private nonprofit community hospital located in Stuart, Florida. She was suspended from her position for three days on October 25, 1988, for suspected diversion of drugs and falsification of medical records. Upon the expiration of her suspension, she was terminated. At all times material to the instant case, Respondent was assigned to the hospital's sixth floor oncology unit and she worked the day shift (7:00 a.m. to 3:00 pm). Among the patients for whom Respondent cared was S.H. S.H., who is now deceased, had lung cancer. The first five days of S.H.'s stay at the hospital were spent in a room on the hospital's fifth floor. On October 15, 1988, she was moved to the sixth floor oncology unit, where she remained until her discharge at 3:35 p.m. on October 22, 1988. When a patient is admitted to the hospital, the admitting physician provides the nursing staff with written orders regarding the care that is to be given the patient. These written orders, which are updated on a daily basis, include instructions concerning any medications that are to be administered to the patient. The hospital's pharmacy department provides each patient with a twenty- four hour supply of the medications prescribed in the physician's written orders. The supply is replenished daily. In October, 1988, the medications that the pharmacy department dispensed were stored in unlocked drawers that were kept in designated "medication rooms" to which the nursing staff and other hospital personnel had ready access. The hospital's nursing staff is responsible for caring for the hospital's patients in accordance with the written orders given by the patients' physicians. Furthermore, if a nurse administers medication to a patient, (s)he must indicate that (s)he has done so by making an appropriate, initialed entry on the patient's MAR (Medication Administration Record). 1/ In addition, (s)he must note in the nursing chart kept on the patient that such medication was administered. Moreover, if the physician's written orders provide that the medication should be given to the patient on an "as needed" basis, the nursing chart must contain information reflecting that the patient's condition warranted the administration of the medication. The foregoing standards of practice that nurses at the hospital are expected to follow are the prevailing standards in the nursing profession. On October 13, 1988, S.H.'s physician indicated in his written orders that S.H. could be administered Darvocet N-100 for pain control on an "as needed" basis, but that in no event should she be given more than one tablet every six hours. S.H.'s MAR reflects that at 9:00 a.m. on October 18, 1988, the first day that Respondent was assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 18, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date. S.H.'s MAR reflects that at 10:00 a.m. on October 21, 1988, the day Respondent was next assigned to care for S.H., Respondent gave S.H. a Darvocet N-100 tablet. The entry was made by Respondent. Respondent did not indicate on S.H.'s nursing chart that she gave S.H. such medication on October 21, 1988. Moreover, there is no indication from the nursing chart that S.H. was experiencing any pain and that therefore she needed to take pain medication while she was under Respondent's care on that date. At some time toward the end of her stay in the hospital, S.H. told one of the charge nurses who worked in the sixth floor oncology unit that she had taken very few Darvocet N- 100 tablets during her stay at the hospital and that she had not taken any recently. S.H.'s physician did not prescribe Darvocet N-100 or any other similar pain medication for S.H. upon her discharge from the hospital. Notwithstanding the entries she made on S.H.'s MAR, Respondent did not give Darvocet N-100 to S.H. on either October 18, 1988, or October 21, 1988. Respondent made these entries knowing that they were false. She did so as part of a scheme to misappropriate and divert the medication to her own use.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of the violations of Section 464.018(1), Florida Statutes, charged in the instant administrative complaint and disciplining Respondent by taking the action proposed by the Department, which is described in paragraph 9 of the foregoing Conclusions of Law. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1990. STUART M. LERNER 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 26th day of October, 1990.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact Stipulated facts AHCA is the agency responsible for the licensing and regulation of skilled nursing facilities in Florida pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 59A-4, Florida Administrative Code. At all times material hereto, Avante was licensed by Petitioner as a skilled nursing facility. Avante operates a 116-bed nursing home located in Leesburg, Florida. On or about March 28, 2002, AHCA conducted a complaint investigation at Avante. Based on AHCA's findings during the March 28, 2002, complaint investigation, federal tag F281(D) was cited against Avante. On or about May 13, 2002, AHCA conducted a survey at Avante. Based on AHCA's findings during the May 13, 2002, survey, federal tag F281(D) was cited against Avante. Resident E.S. was admitted to Avante on March 11, 2002, with diagnoses including e. coli sepsis, anemia, and schizophrenia with an order for serum albumin levels to be performed "now and yearly." Resident E.S.'s resident chart failed to reflect that a serum albumin test had been performed for Resident E.S. at any time from the date of his admission on March 11, 2002, until March 28, 2002. Avante failed to follow the orders of Resident E.S.'s physician due to its failure to perform a serum albumin test on Resident E.S. at any time between March 11, 2002, and March 28, 2002. Resident R.L. was admitted to Respondent's facility on May 6, 2002 with diagnoses including gastrointestinal hemorrhage, congestive heart failure, coronary artery disease, A-fib, pneumonia, diverticulitis, gout, fracture of right arm, and cancer of the prostate. Resident R.L.'s resident chart reflects that Resident R.L. was neither offered or administered Tylenol by Avante's staff at any time between May 9, 2002, and May 13, 2002. Facts Based Upon the Evidence of Record The correction date given to Respondent for the deficiency cited, Tag F281(D), as a result of the March 28, 2002, complaint investigation was April 28, 2002. Respondent does not dispute the deficiency cited by AHCA as a result of the March 28, 2002, complaint investigation. Thus, facts and circumstances surrounding the May 13, 2002, survey visit to Avante is the source of this dispute. The purpose of the May 13, 2002 survey visit to Avante by AHCA was for annual certification or licensure. In an annual license survey, a group of surveyors goes to a facility to determine if the facility is in compliance with state and federal requirements and regulations. Part of the process is to tour the facility, meet residents, record reviews, and talk to families and friends of the residents. During the licensure visit on May 13, 2002, the records of 21 residents were reviewed. Stephen Burgin is a registered nurse and is employed by AHCA as a registered nurse specialist. He has been employed by AHCA for three years and has been licensed as a nurse for six years. He also has experience working in a hospital ER staging unit and in a hospital cardiology unit. Nurse Burgin has never worked in a nursing home. Nurse Burgin conducted the complaint investigation on March 28, 2002, and was team leader for the licensure survey visit on May 13, 2002, at Avante. He was accompanied on the May 13, 2002, visit by Selena Beckett, who is employed by AHCA as a social worker. Both Nurse Burgin and Ms. Beckett are Surveyor Minimum Qualification Test (SMQT) certified. During the course of the May 13, 2002, licensure survey visit, Ms. Beckett interviewed Resident R.L. As a result of this interview, Ms. Beckett examined Resident R.L.'s medication administration record (MAR) to determine whether he was receiving pain medication for his injured left elbow. As a result of reviewing Resident R.L.'s record, Ms. Beckett became aware of a fax cover sheet which related to Resident R.L. The fax cover sheet was dated May 8, 2002, from Nancy Starke, who is a registered nurse employed by Avante as a staff nurse, to Dr. Sarmiento, Resident R.L.'s attending physician. The box labeled "Please comment" was checked and the following was hand written in the section entitled "comments": "Pt refused Augmentin 500 mg BID today states it causes him to have hallucinations would like tyl for pain L elbow." According to Nurse Starke, the fax to Dr. Sarmiento addressed two concerns: Resident R.L.'s refusal to take Augmentin and a request for Tylenol for pain for Resident R.L.'s left elbow. She faxed the cover sheet to Dr. Sarmiento during the 3:00 p.m. to 11:00 p.m. shift on May 8, 2002. Despite her fax to Dr. Sarmiento, which mentioned pain in R.L.'s left elbow, her daily nurse notes for May 8, 2002, reflect that Resident R.L. was alert, easygoing, and happy. He was verbal on that day meaning that he was able to make his needs known to her. Her daily nurse notes for May 8, 2002 contain the notation: "Pt refused augmentin today. Dr. Sarmiento faxed." According to Nurse Starke, she personally observed Resident R.L. and did not observe any expression of pain on May 8, 2002, nor did Resident R.L. request pain medication after she sent the fax to Dr. Sarmiento. The fax cover sheet also contained the hand written notation: "Document refused by PT. OK 5/9/02" with initials which was recognized by nurses at Avante as that of Dr. Sarmiento. The fax sheet has a transmission line which indicates that it was faxed back to Avante the evening of May 9, 2002. Nurse Starke also provided care to Resident R.L. on May 11, 2002. According to Nurse Starke, Resident R.L. did not complain of pain on May 11, 2002. Theresa Miller is a registered nurse employed by Avante as a staff nurse. Nurse Miller provided care to Resident R.L. on May 9 and 10, 2002, during the 7:00 a.m. to 3:00 p.m. shift. Nurse Miller's nurses notes for May 9 and 10, 2002, reflect that she observed Resident R.L. to be alert, easygoing, and happy. Her notes also reflect that Resident R.L. was verbal on those dates, meaning that he was able to tell her if he needed anything. She did not observe Resident R.L. to have any expression of pain on those dates, nor did Resident R.L. express to her that he was in any pain. Vicki Cannon is a licensed practical nurse employed by Avante as a staff nurse. Nurse Cannon has been a licensed practical nurse and has worked in nursing homes since 1998. Nurse Cannon provided care to Resident R.L. on May 11 and 12, 2002, on the 7:00 a.m. to 3:00 p.m. shift. Her nurse's notes for May 11, 2002 reflect that Resident R.L. was sullen but alert and verbal. Resident R.L. had blood in his urine and some discomfort. Nurse Cannon contacted Dr. Sarmiento by telephone on May 11, 2002, to inform him of Resident R.L.'s symptoms that day. Nurse Cannon noted on Resident R.L.'s physician order sheet that she received a telephone order from Dr. Sarmiento to give Resident R.L. Ultram PRN and Levaquin, discontinue Augmentin, order BMP and CBC blood work, and a urology consult. Ultram is an anti-inflammatory and a pain medication. Ultram is stronger than Tylenol. The notation "PRN" means as requested by the patient for pain. Levaquin is an antibiotic. Nurse Cannon faxed the order to the pharmacy at Leesburg Regional Medical Center. By the time Nurse Cannon left Avante for the day on May 11, 2002, the Ultram had not arrived from the pharmacy. On May 12, 2002, Resident R.L. had edema of the legs and blood in his urine. Nurse Cannon notified Dr. Sarmiento of Resident R.L.'s symptoms. Resident R.L. was sent to the emergency room for evaluation based on Dr. Sarmiento's orders. Additionally, Nurse Cannon called the pharmacy on May 12, 2002, to inquire about the Ultram as it had not yet arrived at the facility. Resident R.L. returned to Avante the evening of May 12, 2002. Alice Markham is a registered nurse and is the Director of Nursing at Avante. She has been a nurse for more than 20 years and has been employed at Avante for a little over two years. She also has worked in acute care at a hospital. Nurse Markham is familiar with Resident R.L. She described Resident R.L. as alert until the period of time before he went to the hospital on May 12, 2002. She was not aware of any expressions of pain by Resident R.L. between May 9, 2002 until he went to the hospital on May 12, 2002. Nurse Markham meets frequently with her nursing staff regarding the facility's residents. During the licensure survey, Nurse Markham became aware of Ms. Beckett's concerns regarding Resident R.L. and whether he had received Tylenol. She called Dr. Sarmiento to request an order for Tylenol for R.L. The physician order sheet for R.L. contains a notation for a telephone order for Tylenol "PRN" on May 14, 2002, for joint pain and the notation, "try Tylenol before Ultram." The medical administration record for R.L. indicates that Resident R.L. received Ultram on May 13 and and began receiving Tylenol on May 15, 2002. AHCA 's charge of failure to meet professional standards of quality by failing to properly follow and implement physician orders is based on the "OK" notation by Dr. Sarmiento on the above-described fax and what AHCA perceives to be Avante's failure to follow and implement that "order" for Tylenol for Resident R.L. AHCA nurse and surveyor Burgin acknowledged that the "OK" on the fax cover sheet was not an order as it did not specify dosage or frequency. He also acknowledged that the nursing home could not administer Tylenol based on Dr. Sarmiento's "OK" on the fax cover sheet, that it would not be appropriate to forward the "OK" to the pharmacy, that it should not have been placed on the resident's medication administration record, and that it should not have been administered to the resident. However, Nurse Burgin is of the opinion that the standard practice of nursing is to clarify such an "order" and once clarified, administer the medication as ordered. He was of the opinion that Avante should have clarified Dr. Sarmiento's "OK" for Tylenol on May 9, 2002, rather than on May 14, 2002. Nurse Burgin also was of the opinion that it should have been reflected on the resident's medication administration record and treatment record or TAR. In Nurse Markham's opinion, "OK" from Dr. Sarmiento on the fax cover sheet does not constitute a physician's order for medication as it does not contain dosage or frequency of administration. Nurse Markham is also of the opinion that it should not have been forwarded to the pharmacy, transcribed to the medication administration record, or transcribed on the treatment administration record. According to Nurse Markham, doctor's orders are not recorded on the treatment administration record of a resident. Nurse Markham is of the opinion that the nursing staff at Avante did not deviate from the community standard for nursing in their care of Resident R.L. from May 8, 2002 to May 14, 2002. Nurse Cannon also is of the opinion that the "OK" by Dr. Sarmiento does not constitute a physician's order for medication. The Administrative Complaints cited Avante for failure to meet professional standards of quality by failing to properly follow and implement a physician's order. Having considered the opinions of Nurses Burgin, Markham, and Cannon, it is clear that the "OK" notation of Dr. Sarmiento on the fax cover sheet did not constitute a physician's order. Without Dr. Sarmiento's testimony, it is not entirely clear from a review of the fax cover sheet that the "OK" relates to the reference to Tylenol or the reference to Resident R.L.'s refusal of Augmentin. Accordingly, Avante did not fail to follow a physician's order in May 2002. As to AHCA's assertion that Avante failed to meet professional standards by not clarifying the "OK" from Dr. Sarmiento, this constitutes a different reason or ground than stated in the Administrative Complaints. Failure to clarify an order is not the equivalent of failure to follow an order. There is insufficient nexus between the deficiency cited on March 28, 2002 and the deficiency cited on May 13, 2002. Accordingly, Avante did not fail to correct a Class III deficiency within the time established by the agency or commit a repeat Class III violation. Moreover, the evidence shows that the nursing staff responded to the needs of Resident R.L. Resident R.L. expressed pain in his left elbow to Nurse Starke on May 8, 2002. Resident R.L. was alert and could make his needs known. He did not express pain or a need for pain medication to Nurse Miller on May 9 or 10, 2002 or to Nurse Cannon on May 11 or 12, 2002. Rather, Nurse Cannon noted a change in his condition, notified Dr. Sarmiento which resulted in Resident R.L. being sent to the emergency room. Resident R.L. returned to Avante the evening of May 12, 2002, and received Ultram for pain on May 13, 2002, when the medication reached Avante from the pharmacy. The evidence presented does not establish that Avante deviated from the community standard for nursing in its actions surrounding the "OK" from Dr. Sarmiento. In weighing the respective opinions of Nurses Burgin and Markham in relation to whether the community standard for nursing was met by the actions of Respondent, Nurse Markham's opinion is more persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Administrative Complaints issued against Respondent, Avante at Leesburg. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 13th day of December, 2002. COPIES FURNISHED: Jodi C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive Mail Station 3 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Jonathan S. Grout, Esquire Goldsmith, Grout & Lewis 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Valinda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Recommendation Based on the foregoing facts and conclusions of law, the Hearing Officer recommends that the Board take no action against the license of Marie Novak, L.P.N. DONE and ORDERED this 16th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 218 East Forsyth Street Jacksonville, Florida 32202 Robert T. Westman, Esquire Post Office Box 1888 Cocoa, Florida 32922
Findings Of Fact Mark Hegedus, Respondent, is registered with the Florida State Board of Nursing and holds license No. 85729-2. He worked at the Sarasota Memorial Hospital (SMH) for approximately three years immediately preceding May 15, 1978. During the period between April 1, 1978 and May 15, 1978 Respondent was working on the cancer ward at SMH and was Charge Team Leader at the hospital. An audit conducted of the narcotics and barbiturates administration records at SMH for the period 1 April through 15 May 1978 disclosed that of 14 patients records selected who had been administered Demerol by Respondent, evidence of irregularity was discovered in 30 entries on 9 of the 14 patient medical records audited. These errors included signing out for 50 mg ampules of Demerol 11 times, for 75 mg ampules 11 times, and for 100 mg ampules 8 times in the narcotic record with no entry made on the Nurses Notes or on Medication and Treatment record. These errors involved patients Daryl C. Iverson, Edna Jurgenson, Clinton Jelmberg, John Lally, Genevieve Belt, Arleigh Updike, Michael Wujtowicz, Joan Slater, and Arda Miller. Hospital procedures and accepted nursing practice require the nurse administering narcotics to sign for the narcotic when it is removed from the narcotics locker and then make an entry in the Nurse Notes and patient Medication and Treatment record when the narcotic is administered to the patient. Medication and Treatment records are used by the doctors to see how frequently patients need narcotics prescribed on an as needed basis, whether the drugs prescribed have been administered, and by other medical personnel to ascertain when the patient last received and how much medication so as to preclude giving the patient an overdose. Respondent was discharged from his position at the hospital on 15 May 1978 because of the narcotics irregularities. At the time of his discharge, Respondent acknowledged that he had taken Demerol and had disposed of the ampules but that he did not use them himself or sell them. The audit disclosed a few errors in charting narcotics were committed by other nurses as well as Respondent. During the three years Respondent worked at SMH and, up until about 1 April 1978, he was a capable and competent registered nurse, well-liked by both patients and co-workers. He was promoted to First Team Leader after about one year at SMH and to Charge Team Leader approximately one year thereafter. These promotions were more rapid than the time required by the average nurse. All witnesses who had worked with Respondent spoke highly of his qualifications and dedication as a registered nurse.
Recommendation Revoke the license of Respondent Mary Katherine Mitchell. DONE and ORDERED this 31st day of January 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND 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 Mary Katherine Mitchell, L.P.N. Route 7, Box 314 Milton, Florida 32570
The Issue The issues for determination are whether Respondent admitted new residents in violation of Section 400.141(15)(d), Florida Statutes (2001); and, if so, whether Petitioner should reclassify Respondent's license from standard to conditional, impose an administrative fine of $7,500, and impose costs pursuant to Sections 400.23(8)(b) and 400.419(10), Florida Statutes (2001). (References to chapters and statutes are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating nursing homes in accordance with Chapter 400. Respondent is licensed as a skilled nursing facility pursuant to license number SNF 1186096, certificate number 8590. Respondent operates a 120-bed nursing home at 2500 West Church Street, Orlando, Florida 32805 as a non-profit facility (the facility). From April 8 through 11, 2002, a four-member survey team assigned by Petitioner conducted an annual survey of the facility pursuant to Section 400.23(7). The survey team found that the facility violated Section 400.23(3)(a) by failing to maintain minimum staffing requirements for licensed nurses equal to one hour of direct care per resident per day (minimum staffing requirements) during a 14-day period from March 17 through March 30, 2002 (the relevant period). Petitioner found that the facility failed to maintain minimum staffing requirements for 12 days during the relevant period, including two consecutive days on March 28 and 29, 2002. It is undisputed that the facility admitted new residents on March 17, 22, and 27, 2002. The survey team based its finding on records provided by the facility. In particular, the survey team relied on a table submitted by the facility that compares the total number of licensed nurses, including LPNs and RNs, to the resident census (the original submission by the facility). The original submission by the facility is identified in the record as page nine of Petitioner's Exhibit One (P-1). The original submission indicates the facility failed to maintain minimum staffing requirements on 12 days during the relevant period. The original submission indicates the facility complied with minimum staffing requirements on March 27 and March 30, 2002. During and after the survey, the facility submitted additional information in an attempt to explain the discrepancies in the original submission (subsequent submissions). The subsequent submissions are identified in the record as pages five and eight of P-1. The subsequent submissions indicate that the facility failed to meet minimum staffing requirements on five days during the relevant period. However, the subsequent submissions identify different days in which the facility failed to meet minimum staffing requirements. The subsequent submission identified as page five of P-1 indicates the facility failed to meet minimum staffing requirements on March 18 through 20, March 24, and March 29, 2002. The subsequent submission identified as page eight of P-1, indicates the facility fell below minimum staffing requirements on March 19, 21, 24, and 28 and 29, 2002. Given the inconsistencies in the three submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, Petitioner relied on the original submission by the facility, identified as page 9 of P-1, for the factual allegations in the Administrative Complaint. In relevant part, the Administrative Complain alleges: . . . [T]he facility failed to maintain the minimum number of staff between March 17 . . . March 30, 2002. Nursing staffing records revealed that twelve days during the period were below minimum staffing. Further review of . . . [the] records revealed that it did not have six consecutive days during which it met the minimum required staffing. Interviews with the acting Director of Nursing . . . revealed that they were not aware of the staff shortages. Pursuant to [Section] 400.141(15)(d), Fla. Stat., [Respondent] is prohibited from accepting new admissions until it has achieved the minimum staffing requirements for a period of six consecutive days. [Respondent] admitted new residents on March 22 . . . [and] March 27, 2002. The Administrative Complaint does not expressly allege that the facility failed to meet minimum staffing requirements for "two consecutive days." However, such an allegation is necessarily implied in the allegation that the facility failed to meet minimum staffing requirements for 12 of the 14 days in the relevant period. The submissions by the facility, identified in the record as pages 5, 8, and 9 of P-1, were flawed for several reasons. First, the census count in each submission included bed holds for residents who were not present in the facility. The parties agree that bed holds should be excluded from the resident census and that the resident census should include only those residents that are physically present in the facility. Second, the submissions inadvertently excluded LPNs and RNs who were actually working during the relevant period, including contract nurses provided by outside agencies. Turnover among key personnel at the facility was another reason for the flawed submissions by the facility. On or about March 22, 2002, the Administrator of the facility and the Director of Nursing resigned. The individuals who replaced them were inexperienced in reporting data to Petitioner and were confused over how to compute minimum staffing requirements, including the resident census. The change in personnel also created confusion over whether to include clinical hours of nurses who also performed administrative functions. The minimum staffing requirements prescribed in Section 400.23(3)(a) provide, in relevant part, that the hours of a licensed nurse with dual job responsibilities cannot be counted twice. When the Director of Nursing resigned, the Assistant Director of Nursing became the Acting Director of Nursing (DON). The position of Assistant Director of Nursing remained vacant because the facility did not have a resident population large enough to require an Assistant Director of Nursing. The submissions by the facility did not include the clinical hours of nursing provided by the Assistant Director of Nursing before she became the DON. Nor did the submissions by the facility include the clinical hours of nursing provided by another licensed nurse identified in the record as the "MDS" Coordinator. After Petitioner filed the Administrative Complaint, Respondent retained two experts to determine minimum staffing levels at the facility during the relevant period. Each expert determined minimum staffing levels at the facility for the relevant period independently of the other expert. One expert spent approximately 14 hours in making her determination, and the other expert spent between 15 and 16 hours making her determination. The minimum staffing level computed by the first expert agreed with that computed by the second expert. Each expert relied on relevant facility records and interviewed facility personnel. Each expert calculated an adjusted census that excluded bed holds. Each expert reviewed time records of licensed nurses during the relevant period, including nurses provided by outside agencies. Each expert reviewed job descriptions for the Assistant Director of Nursing and the MDS Coordinator and interviewed the individuals who were the Assistant Director of Nursing and MDS Coordinator to determine the actual clinical hours of nursing each provided during the relevant period. The experts also discovered that time records excluded time actually worked by some licensed nurses during lunch. The experts included the time actually worked by those nurses in computing minimum staffing levels during the relevant period. The facility met or exceeded the minimum staffing requirements for licensed nurses on each day during the relevant period except March 19, 24, and 29, 2002. The facility did not fail to meet minimum staffing requirements on two consecutive days. If the time actually worked by licensed nurses but not included in the time records were disregarded, it would not result in understaffing for two consecutive days during the relevant period. During cross-examination, each of Respondent's experts agreed that she would have cited the facility for failing to meet minimum staffing requirements for two consecutive days if the information contained in the original and subsequent submissions by the facility had been the only information available to the expert. That was the only information available to the witness called by Petitioner, and time constraints permitted the witness to spend only about two hours reviewing the flawed information. Based on flawed information available to Petitioner prior to the administrative hearing, Petitioner correctly proposed to take final agency action to fine Respondent and to change Respondent's license status from standard to conditional. However, an administrative hearing conducted pursuant to Section 120.57(1) is not a review of proposed agency action that has been taken preliminarily. An administrative hearing conducted pursuant to Section 120.57(1) is a de novo hearing that is undertaken to formulate final agency action rather than to review proposed agency action taken preliminarily. A de novo hearing is not limited to information available to the agency at the time the agency proposes final agency action. The scope of a de novo hearing includes any relevant and material evidence admitted through the date of the hearing. The weight to be accorded that evidence is the sole province of the trier of fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the acts and omissions alleged in the Administrative Complaint and restoring Respondent's previous license rating nunc pro tunc. DONE AND ENTERED this 5th day of June, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 5th day of June, 2002. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive Sebring Building, Suite 330L St. Petersburg, Florida 33701-3219 George F. Indest III, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue Whether the Respondent failed to appropriately chart the administration of medications and make the appropriate entries in the drug inventory procedures, and whether this constituted a departure from the accepted and prevailing nursing standards.
Findings Of Fact Jane Adelaide Drake is a registered nurse licensed by the Florida State Board of Nursing. She was employed at Holy Cross Hospital, Fort Lauderdale, Florida from approximately 1973 until March, 1978. She was the assistant head nurse on Ward 4 South on March 23, 24 and 25, 1978. Her duties included responsibility for the narcotics and other controlled substances maintained on 4 South, and the administration of controlled substances to patients. The scheme or procedure for control of narcotics and other; controlled substances called for their issuance in individual dosages daily by the hospital pharmacy to each ward, including 4 South. A Controlled Substances Disposition Record (CSDR) was used to issue controlled substances to the wards. Each ward was issued sufficient new stock daily to maintain its stockage level at the level indicated by the numbered entries on the CSDR for each drug. Additional stockage was indicated by the addition of letters following the numerical entries for a particular drug on the CSDR. Each individual drug dose was issued in an envelope which was clear on one side and had a preprinted form on the other. As drugs were administered, an entry was made by the person responsible for narcotics control on the CSDR opposite the type and strength of drug to be administered. An inventory was conducted daily from this sheet to check drugs on hand against those which had been administered. Doctor's orders for medication were transferred to an electronic data system, and daily printouts were received by each ward for each patient indicating the drugs to be administered and the times or conditions for administration. This preprinted form was referred to as the medication administration record (MAR) or patient profile. Administration of the medication was indicated by striking through the time for administration and initialing, or writing in the time of administration and initialing when it was a drug not given at a specified time. One apparent exception to the use of preprinted MARs existed when a new patient was received on a ward. In this event, hand written orders were taken prior to the preparation of the preprinted MAR. Nursing notes were maintained by each shift on each patient. Nursing notes were kept on a form which provides spaces for the patient's name and identifying data to be stamped at the top of the form, and headings for the date, time, treatment or medication administered, remarks, and signature and title of the individual making the entry. The work force on 4 South was organized into LPNs and RNs who worked directly with patients and are referred to in the record as bedside nurses. The ward supervisors, to include the Respondent, maintained the ward records, drug inventory records, doctor's orders, and administration of controlled medication. Nursing notes for the various shifts and by various RNs and LPNs reflect that only rarely did entries in nursing notes indicate that a specific drug had been administered by the bedside nurse. When recorded at all in nursing notes, generally the only remark is that the patient complained of pain and was medicated. Although acceptable nursing practice would dictate that the nurse who administers medication would sign out for a drug, administer the drug, make an entry on the MAR, and chart the drug on nurse's notes, this was not uniformly followed by the nurses on 4 South at Holy Cross Hospital. This was the result of a hospital policy that personnel not trained in the drug records system would not make entries in the drug record, complicated by a shortage of nursing staff that necessitated utilization of "pool" nurses or nurses obtained from local registries. The majority of these nurses were not trained in the hospital's drug records system. These nurses, who were used as bedside nurses, could not make entries on the drug administration records, therefore, they could not administer the drugs. This necessitated that the administration and maintenance of the drug control records be done by the regular staff. Because bedside nurses were responsible for patient charting generally, it became the prevailing practice for bedside nurses to chart the administration of medications which were administered by other staff. The specific allegations of the complaint relate to Rose Ferrara, Minnie C. Ward, and Josephine Locatelli. Regarding Locatelli, the allegation of the complaint is that the Respondent signed out for and administered Demerol (Meperidine) to the patient on March 23, 1978 but failed to properly sign out for the drug on the C8DR. Exhibit 12 is a handwritten 4AR for both March 23 and 24, 1978, on which Demerol is listed under the date March 23. Entries on this record would appear to reflect that the patient was administered Demerol by the Respondent at 1100 and 1430 on March 23, and by Ann Fosdick at 1900 on that date. The CSDR indicates that Meperidine was signed out for Locatelli at 1035 and 1435 by the Respondent and at 1900 by Ann Fosdick on March 24. The hospital records indicate that the patient was not admitted to the hospital until March Obviously, neither the Respondent nor Fosdick could have administered the drug on March 23. What the records do reflect is that on March 24, the Respondent and Fosdick signed out for Demerol which was administered to the patient on March 24, but recorded on the handwritten MAR under the date of March 23, the date the doctor's order was entered. The administration of pain medication by Fosdick is reflected in the nursing notes of J. Hughes, GN, for 2000 hours March 24, 1978. No nursing notes exist in the record for the Respondent's shift. See Exhibits 2, 12 and 13. The CSDR reflects the Respondent signed out on March 25 for Meperidine at 0700. 1000, and 1430 hours for Locatelli. The nurses notes reflect no entry relating to the administration of these medications for March 25, 1978. The MAR for March 25, 1978, was not introduced. The nursing notes for March 23, 24 and 25, 1978, were maintained by persons other than the Respondent or Fosdick. Regarding Ferrara, the testimony indicates that the Respondent signed out for medications on the CSDR and made appropriate entries on the MAR except in one instance. Again, the administration was not charted in nurses notes. However, the MAR submitted as an exhibit is for March 24, 1978, while the nurses notes cover primarily March 23, 1978. The primary failure reflected in the testimony relates to Respondent's failure to chart nurses notes. However, review of the nurses notes on this patient from February until March reveals that the only pain medication received by the patient, and that only on one occasion, was Percodan which was given several weeks after the patient's leg was amputated. Although there may be individual variations to pain, it is hardly conceivable that Ferrara could have undergone the amputation of her leg without any pain medication except Percodan which was administered one time several seeks after the operation. Presumably, the patient did receive pain medication and this was not charted in nurses notes by any of the nursing staff. Regarding Minnie Ward, the CSDR shows that the Respondent signed out for Meperidine at 12 noon on March 23, 1978. The nurses notes show no complaint of pain or administration of pain medication at 12 noon on that date. However, the CSDR reflects that "PM" signed out for 50 mg of Meperidine at 0200 hours for the same patient. The MAR for March 23 does not reflect administration of the drug by "PM'. or charting of administration in the nurses notes on March 22, 23, or 24, 1978, by "RM." See Exhibits 1, 9 and 10. Further, regarding Ward, a review of her records for other dates reflects that on March 17, the Respondent signed out for Meperidine at.1105 and 1530. The nurses notes, which on that date were kept by the Respondent, reflect administration of the drug at 1100. No entry was made regarding the 1530 administration. An entry is contained at 1900 hours on that date indicating that Ward complained of pain and was medicated; however, no corresponding entry is contained in the CSDR indicating that a controlled substance was signed out for administration to this patient. The shift on 4 South would have changed between 1500 and 1530 hours. The pain medication administered necessarily had to come from some source, presumably the 1530 sign-out by the Respondent. However, it is unclear whether it was administered at 1530 and not charted until 1900, or not administered until 1900 when it was charted. On March 18, 1978, the CSDR reflected that Ward was given 50 mgs of Meperidine at 1300 hours by the Respondent. Nurses notes for that date reflect administration of pain medication at that time. The CSDR also reflects that Ann Fosdick signed out for 50 mgs of Meperidine at 1900 hours on March 18. However, the nurses notes for Fosdick's shift do not reflect that the patient complained of pain or received pain medication. On March 19, Ann Fosdick signed out for 50 mgs of Meperidine at 1800 hours as reflected on the CSDR for that date. The nurses notes kept by M. Green, title illegible, for that date reflect that Ward was medicated for pain by the team leader at approximately 1800. On March 20, 1978, the Respondent signed out for 50 mgs of Meperidine at 0900 hours and at 1330 hours, and "REK" signed out for Mereridine at 2100 hours. The nurses notes by R. Ezly, R.N., for March 20, reflect the administration of medication at approximately 1330 and the nurses notes by an LPN whose name is illegible reflect the administration of pain medication at 2000 hours. Again, the nurses notes were kept by an individual other than the person administering the medication. The MARs on March 17, 18, 19 and 20, 1978, were properly executed by the Respondent and the other nurses referred to above. The nurses notes for Minnie Ward do not reflect any remarks between 1400 hours on March 23, 1978 and 1530 hours on March 24, 1978, and two separate sets of entries for March 25, 1978. A supervisor was called to testify to what constituted acceptable and prevailing nursing practices at Holy Cross Hospital. She had been a nursing supervisor since 1976, and was supervisor on the 3 to 11 shift in March, 1978. In addition, she stated that she had only administered medication four times in the approximately four years she had been at Holy Cross Hospital as a supervisor. Her testimony was based solely upon her observations on her own shift and the review of the records of her shift which she stated that she spot- checked. The supervisor's testimony revealed that she was aware of the fact that shifts on the wards were divided into those nurses giving bedside care and those nurses administering medication. Her testimony and the testimony of the director of nursing shows that the records of the shift on which the Respondent served were spot-checked. Spot-checking was reportedly the means by which the alleged discrepancies in the Respondent's charting were noted. From even cursory inspection of the records, it is evident that medication nurses were not charting the nurses notes and bedside nurses were charting the administration of medication in nurses notes. Such spot-checking also reveals the discrepancies in charting noted above. All of those discrepancies constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent offered the only explanation of why these practices had occurred. During the winter months of 1977-78, there had been an increase in patient census, and shortage of staff nurses which caused working conditions to deteriorate. Some regular staff members quit their jobs worsening the already bad situation. The number of Nurses on 4 South varied between three and six to treat forty-eight patients. Even with six nurses on duty, this was 1.3 nurse hours below the hospital's goal of 4.3 nurse hours per patient per twenty-four hours. An attempt was made to make up the personnel shortages by using "pool" or registry nurses; however, hospital policy prevented these nurses from making entries on the CSDRs and MARs which kept all but a very few from administering medication. Theme nurses were used to provide bedside care and were permitted to chart nurses notes. Because of the acute shortages, the medication nurses, to include the Respondent, executed the CSDRs and MARs, prepared medications, and administered them, but permitted the bedside nurses to chart the administration in nurses notes. The Respondent complained concerning the staffing levels to her supervisor and to the director of nursing. The director of nursing requested a written memorandum from the Respondent, which she received; however, the situation was not improved. Thereafter, the Respondent was terminated for errors in charting, although there had been no prior complaints or counseling with regard to her charting errors, and in spite of the fact that her charting was consistent with the patterns seen with other nurses on other shifts. The general practice concerning charting errors was that nurses were counseled, required to correct errors, and required to prepare incident reports where necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Nursing issue a letter of reprimand to the Respondent. DONE and ORDERED this 12th day of December, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Eugene A. Peer, Esquire 2170 NE Dixie Highway Jenson Beach, Florida 33457 Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Licensing and Investigation 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: Jane Adelaide Drake North Western University Institute CASE NO. 78-1450 of Psychiatry 3203 E. Huron Chicago, Illinois 60611 As a Registered Nurse License Number 76252-2 /
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Background At all times relevant hereto, respondent, Lorrie Neumann Dupuis (Dupuis or respondent), was licensed as a practical nurse and held license number PN 0766491 issued by petitioner, Department of Professional Regulation, Board of Nursing (Board). When the events herein occurred in 1990, respondent was known as Lorrie Neumann. She has since changed her name to Lorrie Neumann Dupuis. Counts I and II At hearing respondent admitted that the charges in Counts I and II are true. The admitted allegations which underpin these counts are briefly as follows. On July 23, 1990, respondent applied for employment with Upjohn Health Services (Upjohn). On her application, Dupuis indicated that she was a registered nurse when in fact she was a licensed practical nurse. In addition, respondent submitted to Upjohn an altered nursing license which had been changed to indicate the designation "RN" and title "Registered Professional Nurse". Finally, respondent gave Upjohn a resume indicating the designation "RN" after her name. Accordingly, it is found that respondent (a) engaged in unprofessional conduct by improperly using the name or title Registered Nurse and (b) knowingly violated a statutory provision that prohibits any person from assuming the title of registered nurse or using the abbreviation "R.N." without being so licensed. There is no evidence, and the Board has not alleged, that any unlawful practice as a registered nurse occurred as the result of the application nor that respondent was subjected to criminal prosecution for this act. Count III Respondent is charged in Count III with "making or filing a false report or record which the licensee knows to be false". This charge stems from a factual allegation that, while employed by Consolidated Staffing Services (CSS), respondent altered a time verification form by increasing the number of hours she had allegedly worked on July 26, 1990, from four to nine. Respondent was employed as a licensed practical nurse (LPN) by CSS from April through July 1990. CSS, which is a for-profit division of St. Vincent's Hospital in Jacksonville, has agreements with various clients in the Jacksonville area to supply nurses to the clients on a supplemental staff basis. One such agreement was with the Jacksonville Naval Air Station (NAS) and called for CSS to furnish nurses to the NAS emergency room. During her tenure with CSS, respondent worked on various occasions as a LPN at the NAS emergency room. On Tuesday, July 24, 1990, Dupuis worked an eight hour shift at the NAS. Based on erroneous advice received from a CSS employee, respondent was under the impression she was to work again at the NAS on Thursday morning, July She accordingly reported to duty that day at 6:45 a.m. However, Dupuis was not actually scheduled to work that day since the emergency room already had a full complement of nurses on duty. After realizing that the emergency room had more persons on duty than was customary, the emergency room nursing manager contacted CSS and verified that respondent was not scheduled to work that day. Accordingly, around 10:45 a.m., the manager advised respondent that she must leave but that she would be paid for the four hours she had worked that morning. Just before leaving the premises, respondent filled out a CSS time verification form. The form is made up of four pages, an original and three copies, and the CSS nurse is instructed to leave one copy with the client, retain one copy for herself, and to return the original and one copy to CSS offices. On the form, respondent noted she had worked from 6:45 a.m. to 10:45 a.m., or a total of four hours. After she departed the NAS, respondent noted that the time sheet reflected a date of July 25 when in fact the correct date was July 26. She accordingly altered the three copies of the form still in her possession to reflect the correct date. The copy left with the NAS still carries the incorrect date of July 25. In accordance with her normal procedure, respondent accumulated her time verification forms from the week and turned them all in at one time to CSS on Sunday afternoon, July 29. She did so by placing them in an envelope and sliding the envelope under the locked doors of CSS's offices. Such a procedure was acceptable with her employer. When the envelope was opened by CSS the next day and sent to accounting for computation of pay, CSS personnel noted that on respondent's July 26 time verification form the number "4" had been altered to read "9" so that it appeared respondent had worked nine hours at the NAS. Also, the "time finished" column, which is the time Dupuis finished her stint of duty, reflected that "10:45" had been altered to read "15:45", which is the military time for 3:45 p.m. CSS then had the NAS fax its copy of the form to CSS. This form had not been altered and correctly reflected that Dupuis worked only four hours. When Dupuis would not agree to meet with CSS management to discuss the altered form, respondent was terminated from employment and the matter was turned over to the Board. Except for changing the date on the form from July 25 to July 26, respondent denied that she had altered any other numbers. She suggested at hearing that someone at CSS may have altered the copies after she turned them in on Sunday, July 29. She also suggested that the nurse manager at the NAS emergency room disliked her and may have set her up. However, these contentions are not deemed to be credible. Accordingly, it is found that respondent made a report which she knew to be false. Mitigation There is no evidence that respondent has ever been disciplined by the Board. In addition, there is no evidence that her actions endangered the public or resulted in actual damages of any nature, or that she engaged in any other similar misconduct. Finally, there are no complaints of record regarding the quality of work performed by respondent as a LPN.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is recommended that respondent be found guilty of violating Subsections 464.018(1)(f),(h), and (l), Florida Statutes (1989), and that her nursing license be suspended for thirty days. RECOMMENDED this 26th day of September, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of September, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lorrie Neumann Dupuis 4156 Piney Branch Court Jacksonville, FL 32257 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
