Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of March, 1982.
Findings Of Fact Respondent, Barbara Jiminez, is a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0812181. At the time of the incident involved in this case, Respondent was a LPN. In 1987, Respondent was employed as a licensed practical nurse by Holly Point Manor, a nursing home located in Orange Park, Florida. Respondent was also employed as a LPN by another nursing home in the area. She was scheduled to work the 3:00 p.m. to 11:00 p.m. shift at Holly Point Manor. Holly Point Manor was a new facility and had opened in November, 1987. Only one wing of the facility was open and in December, 1987, Holly Point Manor serviced approximately 50 patients. On December 21, 1987, Respondent presented a letter of resignation to Tom Burrell, Director of Nursing at Holly Point Manor. The resignation was effective December 20, 1987. The resignation was precipitated by a verbal altercation with Liz McClain, a certified nursing assistant (CNA) at Holly Point Manor. The verbal exchange occurred on December 20, 1987. However, difficulties between Respondent and Ms. McClain had been brewing for a period of time prior to the verbal exchange of the 20th. After discussing the letter with Burrell, Respondent agreed to work on an as-needed basis at the facility. Burrell indicated that he needed Respondent to work until the beginning of the year, and therefore scheduled the Respondent for the remainder of December. Respondent was scheduled to work her usual shift on December 23, 24, and 25, 1987. She was scheduled to work with Virginia Anderson. Ms. Anderson is also a LPN. On December 23, 1987, Respondent clocked in for work at approximately 2:40 p.m. EST and clocked out the same day at 3:40 p.m. EST. On December 23, 1987, the Respondent and Virginia Anderson began work before the 3:00 p.m. change-of-shift. At shift change, both nurses went into the medication room to "take report" from Nurse Jan Sturgeon, the LPN who had worked the previous shift. A "report" at the change of shift consists of the previous shift's nurse going down the list of each resident/patient and reporting each patient's respective condition to the on-coming nurse. Part of the report includes counting the medications on the medication cart to ensure a correct count in the narcotic drawer of each cart. In this case, there were two medication carts, one for each of the on-coming nurses. These carts are locked and the nurse responsible for the cart maintains possession of the keys to that cart. Ms. Sturgeon "reported off" first to Ms. Anderson, and then to Respondent. Ms. Anderson began her rounds after receiving a report and keys to her cart from Ms. Sturgeon. Subsequently, Respondent received a report and keys to her cart from Ms. Sturgeon. At some time during Respondent's clocking in and taking report, a problem arose over the staffing assignments of the C.N.A.'s. Respondent was the nurse responsible for making the CNA assignments. However, Nurse Anderson had already created patient-care assignments for the CNAs after one C.N.A. had failed to report for work.1/ The Respondent was not satisfied with the assignments created by Anderson and either requested that they be changed or changed them herself. The request or change immediately caused a bad atmosphere between the employees on the wing. Around 3:30 p.m., Respondent telephoned Tom Burrell. Respondent told Burre11 that she couldn't take it anymore and that she was leaving. Burrell told Respondent that she was scheduled to work and if she left she would be reported for what was, in his opinion, a violation of the Nurse Practice Act. Burrell did not give Respondent permission to leave. Either before or after the call to Burrell, Nurse Eppert, the Assistant Director of Nursing, told the Respondent that in her opinion there was nothing wrong with the C.N.A. assignments. Respondent stated, "Here's my keys - - I'm leaving." Eppert informed Respondent that she had no replacement nurse and did not want her to leave. Respondent pointed out that Ms. Sturgeon was still present. Eppert reminded Respondent that Sturgeon was off duty. Eppert then told Respondent to give a report to Nurse Anderson. She refused and told Ms. Anderson to get the report from Ms. Sturgeon who had just given the report to Respondent. Since Respondent had not begun her rounds, Ms. Sturgeon's report was still valid and the narcotic count had not changed. Respondent left Holly Point Manor. The Respondent did not positively know at the time she left whether Nurse Sturgeon would remain to assist. The Respondent did not stay to determine whether Sturgeon would, in fact, cover the shift. However, the evidence did show that Ms. Sturgeon tacitly agreed to stay before Respondent left the facility. Nurse Sturgeon was not the type of person to decline to help when the need arose. After the Respondent left, Jan Sturgeon formally agreed to stay to assist with the 5 p.m. medication pass. She agreed because Ms. Eppert could not find anyone to work due to the closeness of the holidays. After the medication pass, Ms. Sturgeon left for the evening and Ms. Anderson handled the shift by herself. One nurse working the night shift alone was not an unusual event at Holly Point and occurred frequently. In fact, Ms. Anderson had worked the previous evening's shift by herself. One nurse to 50 patients meets HRS staffing requirements for nursing home facilities. However, the hardest part of the evening shift for a solo nurse was the 5:00 p.m. medication pass. Later, the facility was able to retain a replacement nurse for the 24th and 25th. It is not an acceptable nursing practice for a nurse to leave his or her employment until that nurse is sure that somebody else is going to take care of the patients the nurse is responsible for. In this case, Respondent failed to positively ensure someone would replace her. Reliance on tacit agreement by either of the other two nurses is not enough. Likewise, past practice of the facility is not enough. Reliance on tacit agreement or past practice is too amorphous to insure protection and the safety of the patients the nurse is responsible for. However, tacit agreement and past practice do go towards mitigation of any disciplinary penalty in this case. Respondent's actions by not ensuring her replacement or at least the need for such a replacement constitutes unprofessional conduct in the practice of nursing Likewise, it is not an acceptable nursing practice for an LPN to leave without giving another nurse a report on patients that that nurse would be assuming and before counting the medications on the medication cart. However, in this case, the evidence demonstrated that a replacement was there whose earlier report was still accurate and valid. Therefore, formal patient reporting and narcotics counting was not necessary or required. 2/ Respondent is not subject to discipline under this standard.
Recommendation Based upon the foregoing Proposed Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a Final Order reprimanding the Respondent's license, and requiring her to take courses in the Legal Aspects of Nursing and in Stress Management within a 6 month time period. DONE and ENTERED this 19 day of October, 1989, at Tallahassee, Florida. DIANE CLEAVINGER 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 19 day of October, 1989.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against because of her race (African-American) in not being selected for promotions and whether she was not selected because of her handicap (back injury).
Findings Of Fact The Petitioner is a black female. At times pertinent hereto, she was employed by the State of Florida, Department of Health and Rehabilitative Services (now known as Department of Children and Family Services), at Florida State Hospital in Chattahoochee, Florida. She has a disability or handicap involving a back injury. She was first employed by the Respondent in July 1976, as a Registered Nurse II and initially supervised two or three wards. The Petitioner also worked for Apalachee Community Mental Health Service in Quincy as a Team Leader during 1977-1978. She was a part-time relief nursing supervisor at Tallahassee Memorial Hospital between 1978 and 1979. She became a Registered Nurse III in March 1978 at Florida State Hospital (FSH) and became a full-time nurse there in 1979. She supervised an entire unit after that time and worked in several different units of the Forensic/Corrections Department as a Senior Registered Nurse beginning in November 1982 and lasting until March 1987. Between March and December 1987, she served as a Senior Registered Nurse Supervisor until her current assignment. She has been employed since December 1987 as a Registered Nurse Specialist Coordinator and remained in that position until her resignation due to disability retirement on January 25, 1994. She has a good employment record, earning consistent above satisfactory or "exceeds" performance standards ratings during her career. The Petitioner earned her Bachelor of Science Degree in Nursing (BSN) from Florida A & M University in 1976. She has since earned 21 hours toward a Masters Degree and took continuing nursing education courses at a time when the continuing education course work was not yet required. She is licensed by the State of Florida as a Registered Nurse. Petitioner's Disability On August 25, 1992, the Petitioner suffered a job- related injury to her back. The Petitioner was absent from work for some months, apparently receiving worker's compensation during this time. On January 27, 1993, she was cleared to return to light duty work at the hospital by her treating physician. The Respondent provided her with an appropriate light duty job assignment at which she remained through the balance of her employment with FSH. On June 18, 1993, the Petitioner was determined to have reached maximum medical improvement by her treating physician. She was thereupon discharged from further medical care by Capital Health Plan. On July 26, 1993, she filed an application for 100 percent "line of duty" retirement from the Florida State Retirement System. The State Office of Worker's Compensation thereafter approved her application for "permanent total disability" worker's compensation benefits, effective June 16, 1993, resulting from the injuries suffered on August 25, 1992. The Petitioner was absent from employment from June 4, 1993 through January 27, 1994, inclusive, claiming 34 weeks of worker's compensation benefits for this time. Ultimately, and as part of her effort to obtain disability retirement, the Petitioner resigned from her employment with the Respondent on January 25, 1994. At the time of the Petitioner's resignation, the Department had an action pending to involuntarily terminate her from employment allegedly because of her inability to discharge her assigned job duties and responsibilities. Vacant Positions During the fall of 1992, a vacancy occurred in the position of Registered Nurse Supervisor, Forensic/Corrections at Florida State Hospital. This was in the facility known as the Corrections Mental Health Institute (CMHI). A career service system position description existed for this job which was developed by the State of Florida, Department of Administration. That position description required, among other things, that the incumbent hold a license as a registered nurse (RN) with the appropriate experience, education, licensure and nursing abilities. The position called for a minimum of 75 percent of the time expended in the job being involved with direct patient contact with forensic patients. The FSH advertised this position as position number 46392 in the HRS Job Bulletin. The application deadline was January 21, 1993. The minimum requirements for the job were licensure as an RN with three years of nursing experience. A bachelor's degree from an accredited college or university could substitute for one of the three years experience required. A bachelor's degree in nursing was not required for the job, however. For this and the other positions a "knowledge, skills and ability" instrument (KSA) was prepared, as required by applicable law, to provide for numbered items consisting of the knowledge, skills or competencies a person hired for each position would be expected to have. Position number 46392 included a KSA requirement of budget experience as being essential, since the position required the development, allocation and administration of that unit's nursing service budget. The job advertisement involving this position complied with existing HRS and FSH rules, policies and procedures. There was no evidence offered to show that it discriminated against any person as to race, national origin, or handicap and no person or class or persons was encouraged or discouraged from applying for the position. Neither employment with the Department nor FSH were prerequisites to application or acceptance of the position. Twenty-six applications were received for this position. The procedure for hiring a person in the state system and the FSH involves various tasks. First, the hiring authority must request the personnel office to fill the position. The hiring authority, from a class specification developed by the Department of Management Services (DMS), creates this specific position description which includes the specific duties of the position and the minimum qualifications established at DMS. The class specification contains generic KSAs and from the class specification and position description the hiring authority develops a KSA examination module. This module is created in three steps: (1) job analysis, where the position description is compared to the KSAs for choosing which KSAs will be searched- for when hiring the position; (2) development of a rating scale where the applicant's KSAs are compared against those developed for the position, to determine the applicant's relative qualifications; and (3) the development of KSA interview questions. According to the pertinent rule, KSAs must not reflect "easily learned" material or skills which can be rapidly learned on the job. The KSAs must also be job related. The scoring on the KSA application rankings form and on the interview questions, was 50 for a "superior level," 33 for "satisfactory level," and 17 for "acceptable level." The interview questions are the only ones which can be asked of applicants during the interview. The KSA examination module is transmitted to the personnel office, prior to the job being advertised. After the job announcement is disclosed, the applications are screened against the minimum qualifications for the position by the personnel office and those that are qualified are submitted to the hiring authority for screening against the developed KSAs for the position. This step is a paper review of the applications which is documented on the application review form filled out on each applicant. The application rankings are normally used to reduce the applicant pool to a smaller number, usually about five, who are then interviewed. The interview questions developed previously are asked of each interviewee, and their answers are rated against the 50-33-17 scale for their scores from each interviewer. The interview scores are aggregated, and the applicant with the highest interview score is selected for the job. A selection form is completed then which lists the top applicant, in the order of their scores, after the interview process. Each application for position 46392 was screened using the KSA instrument prepared in advanced, as required by applicable law, to determine which of the applicants was qualified for the job. The KSA criteria and the interview questions utilized were reviewed by the personnel office at FSH in advance of their use, to ensure compliance with HRS rules, regulations and policies, and EEOC guidelines. Points were then awarded to each of the applicants by the KSA examining committee. Applicant Z. Thompson, a white female nurse, was awarded a total of 233 points. The Petitioner, Jean Spear, was awarded a total of 165 points. Other black and white applicants ranked lower in point award amounts and some ranked higher, including black applicant Bethea, with 199 points. Based upon those scores, three applicants were selected to be interviewed for this position: Z. Thompson; D. Breeden, a white female Registered Nurse; and C. Bethea, an African-American female Registered Nurse. Applicants Thompson and Breeden had associate science degrees in nursing while applicant Bethea had a bachelor of science degree. The bachelor of science degree is a higher degree than an associate science degree and can offset a year of the experience requirement for this and the other positions. However, the bachelor of science degree does not automatically mean that the holder thereof has a higher level of qualification for the position when all the applicants' qualification attributes are weighed against the position requirements and considered together. The Petitioner was not selected for an interview for this position because she finished ninth in the overall KSA rankings for the position. The interview committee for this position consisted of three FSH employees: Joel Devolentine, the administrator in charge of the program; Alva Martin, the chief nursing consultant at FSH; and Harry Moody, Jr., an administrator at the Department of Corrections, Corrections Mental Health Institution (CMHI). Interviewers Devolentine and Martin are white and Mr. Moody is black. The interview were conducted on February 11, 1993. During the interview process, Mr. Devolentine asked the candidates questions which were prepared in advance. Each interviewed person was asked the same questions, in the same sequence. Each member of the interviewing committee scored the responses on forms provided using the scoring system designated and implemented for that purpose. Each member of the committee scored the interviewees independently and did not discuss the points awarded to those persons with the other members of the committee. Each made his or her entries on the interview form separate and apart from the other members of the interview committee, contemporaneously with the responses given by the applicants. Upon conclusion of the interviews, the score sheets were given to Mr. Devolentine by each member of the committee for tabulation. There is no evidence that points awarded were changed or modified in any way once they were awarded. The total numerical scores for each of the candidates interviewed, showed that Z. Thompson had the highest score. Black candidate C. Bethea had the next highest score, and white candidate D. Breeden had the lowest score. The preponderant evidence shows that the KSA's experience in budget issues and the KSA's requiring certification in behavior analysis were both directly related to the job in question and both KSA competencies or certifications were possessed by Z. Thompson and not by the other candidates interviewed nor by the Petitioner, who had not received enough qualification points for the position to be interviewed. Because she received the highest total number of points and met all the minimum requirements set forth in the position description in the HRS job bulletin, because she possessed more experience in budget issues and was certified in behavior analysis, Z. Thompson was selected to be awarded the job. The preponderant evidence shows that the hiring process as to this position was conducted in accordance with existing HRS and FSH rules, regulations, policies, and procedures. There was no persuasive evidence that any of the hiring and selection process was designed or used to favor one class of persons or one person over another by reason of race, ethnicity or handicap. Although there was testimony concerning comments made by various supervisory personnel at FSH to the effect that Z. Thompson should apply for this position or that it was intended in advance that she get this position, there was no persuasive evidence of such pre-selection of Z. Thompson by the hiring decision-maker. It is somewhat noteworthy that white interview committee member Alva Martin gave black candidate Bethea 380 points and white candidate Breeden 347 points, while black interview committee member Moody gave black candidate Bethea 448 points, and white and winning candidate Thompson 465 points. Committee member Devolentine gave winning candidate Thompson 516 points; next highest candidate D. Breedan, a white female, 482 points; and black candidate Bethea 448 points, the same number of points that black committee member Moody had given candidate Bethea. There is no definitive, persuasive evidence that race was a determining factor in the award of the job to candidate Thompson. There was no persuasive evidence as to this position that handicap was a factor in determining that the Petitioner did not get selected for an interview for the position nor selected for the position. Position number 34563 involved a vacancy occurring during 1992. The application deadline for the position was October 22, 1992. The minimum requirements for the job were licensure as a Registered Nurse and four years of nursing experience with one year of that experience requirement offset if a candidate had a bachelor's degree from an accredited college or university. The position description indicates that approximately 75% of the time expended in the job required direct patient conduct with forensic clients. This is the position known as Executive Nursing Director, Forensic/Corrections at Florida State Hospital. The position was advertised in the HRS Job Bulletin. The advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures, and no person, or class of persons, was either encouraged to apply or discouraged from applying as to race, handicap or other status. Thirteen applications were received, and the screening and interview process described above was employed once again in accordance with HRS rules, regulations, and policies and EEOC guidelines. The screening used the KSA instrument prepared in advance for the position, as required by applicable law to determine which applicants were qualified for the job. That resulted in points being awarded and twelve out of the thirteen applicants being interviewed for the position. The interview committee consisted of four FSH employees: Robert Alcorn, the administrator in charge of the program; Alva Martin, chief nursing consultant at FSH; Richard Taylor, a unit director in the Forensic Services at FSH; and R. W. Myers, an administrator in the Forensic Services. Alcorn and Myers are white males. Ms. Martin is a white female and Mr. Taylor is an African-American male. The interviews were conducted on November 23, 1992, with interviewer Robert Alcorn asking all questions of all candidates. The questions were prepared in advance and the interview process included the private and independent deliberation and evaluation by each committee member, conducted as described above. There is no evidence that any points awarded were changed or modified in any way once they were assigned by each committee member. Upon conclusion of the interview process, Mr. Alcorn recommended the following persons for the position of Executive Nursing Director, Forensic/Corrections, as being most qualified for the job, by order of preference: (1) G. Cook with 82.1 points; (2) Z. Thompson with 80.6 points; (3) B. Weems with 74.6 points; (4) L. McMullian with 64.1 points; and (5) J. Spear, the Petitioner, with 61.0 points. Candidate Gwen Cook met all of the requirements of the position description in the HRS Job Bulletin and had more experience in forensic and emergency nursing than did the Petitioner. She received the highest total points and was offered and accepted the job. The KSA at issue as to this position required hospital emergency room experience, including certification in advanced cardiac life support. The position was executive nursing director in a medical-surgical psychiatric ward. Therefore, it was relevant to require, in a KSA for the position, that applicants have extensive knowledge of emergency medical procedures including management of airway obstructions, intubation defibrillator operation, etc., as well as the certification for advanced cardiac life support. It was a legitimate KSA requirement to specify hospital emergency room type experience, which Gwen Cook had in better degree than the Petitioner. The Petitioner did have psychiatric emergency care experience which was relevant, but the higher level of emergency and advanced cardiac life support experience possessed by Gwen Cook coupled with her additional forensic experience justified her selection for the position. The Petitioner was certainly qualified for the position, but Ms. Cook was more qualified, and there is no showing that the point rankings referenced above were improperly arrived at in violation of any rules, policies or statutes. There was no persuasive evidence that they were arrived at to the Petitioner's detriment for reasons of racial preference, ethnicity, or improper discriminatory consideration of the Petitioner's handicap. It was not persuasively demonstrated by the evidence that the advanced cardiac life support certification was a certificate that could be earned in a very short period of time, and thus it was not shown that it was an invalid KSA criterion. In 1992, a vacancy occurred in position number 04877. The FSH advertised this position in the HRS Job Bulletin. It was the position of Registered Nursing Consultant. The position application deadline was July 1, 1992. The position description for this position, which had been developed by the Department of Administration, required that the incumbent have appropriate knowledge, experience, education, and abilities in nursing principles, especially in the area of infection control. The description called for approximately 75 percent of the time expended by the holder of this position to be in direct patient contact with forensic clients. The minimum requirements for the job were licensure as a registered nurse with four years of nursing experience. A bachelors degree from an accredited college or university could substitute for one of the four years of experience required. Specific experience in infection control and epidemeology was essential. The job advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures. Employment with the Department or with the Florida State Hospital was not a prerequisite to attainment of the position. Fourteen applications were received and each application was screened using the KSA instrument prepared in advance for that purpose, as required by law. This was used to determine which of the applicants were qualified for the job. Both the KSA criteria and the interview questions used were prepared and reviewed in advance of their use to ensure compliance with relevant law, in the manner delineated more particularly above. Points were awarded to the persons who applied for the job by the KSA examining committee in such a manner that the Petitioner received 232 points, with only applicant, Nora Howell, who received 300 points, being ranked higher. The Petitioner, was tied for second place in point awards with black applicant C. Bethea and applicant S. Harris. The remainder of the fourteen applicants all scored lower. Based upon those scores determined by the KSA examining committee, the six highest ranking applicants were selected to be interviewed for the position, including the Petitioner. The interview committee consisted of two FSH nursing professional employees: Kathy Wheeler, the administrator in charge of the program and Sue Calloway, a practicing registered nurse at FSH. The interviews were conducted on July 9, 1992. During the interview process, committee member Kathy Wheeler asked the candidates questions, which had been prepared in advance. Each person interviewed was asked the same questions by the designated interviewer, Ms. Wheeler. They were asked in the same sequence. Each member of the interviewing committee scored his or her responses to the questions on forms that had been provided using the scoring system designated and implemented for that purpose. There is no evidence that any member of the committee discussed the points he or she awarded to the interviewees with other members of the committee and no evidence that the entries on the interview forms were made other than separate and independently from each other member of the committee. There is no evidence that points awarded were changed or modified in any way once they were awarded. Upon conclusion of the interviews, all the scoring sheets were given to Ms. Wheeler for tabulation. The total numerical scoring for each of the applicants interviewed was: Nora Howell, 128.4 points; Jean Spear, 119.9 points; C. Bethea, 111.4 points; V. Ramsey, 122.9 points; J. Collins, 118.8 points; and S. Harris, 111.4 points. One of the KSAs applicable to this position called for the person to be hired to have significant expertise in the area of infection control and epidemiology for this nurse consultant position. While the Petitioner remonstrates that this is not a legitimate KSA requirement because it is not directed related to the job and is an area easily learned on the job, the preponderant evidence reveals that indeed, it is directly relevant to this position and it is of significant importance. It is not a field or area of expertise which can be rapidly learned after hiring. Thus, the preponderant evidence shows that this KSA item or criterion is a legitimate one. The preponderant evidence shows also that successful applicant Nora Howell possessed this expertise to a greater extent than did the Petitioner. Thus, although the Petitioner was well qualified for the job in most respects, the qualifications of Nora Howell in this area exceeded those of the Petitioners according to the preponderant, credible evidence. This justified her being awarded a higher level of points in the screening and interviewing process than the Petitioner. Since she met or exceeded all the other position criteria which had been duly and legally adopted, it was justifiable for her to be offered and to accept the position instead of the Petitioner on these qualification-related bases. The application, screening, and interview process and ranking and scoring of points followed the procedure delineated by statute and rules and described in more detail above. There is no credible evidence that the hiring decision as to this position was made for any reason motivated by racial discriminatory intent or discrimination because of any handicap of any applicant. There is no clear evidence that "pre- selection" occurred as the Petitioner contends, but even if Nora Howell had informally been pre-selected for this position, there is no credible evidence that it had anything to do with racial or handicap discrimination against the Petitioner. During the fall of 1992, Florida State Hospital advertised the position of Senior Registered Nurse Supervisor for the Forensic/Corrections Department, position number 09671, in the HRS Job Bulletin. The position application deadline was January 21, 1993. The minimum requirements for the job were licensure as a registered professional nurse and three years of nursing experience. Here again, a Bachelor's Degree from an accredited college or university could substitute for one of the three years experience required. Experience dealing with forensically-committed patients was essential. The evidence shows that the job advertisement complied in all respects with existing HRS and FSH rules, polices, and procedures. The advertisement did not discriminate against any person or group or class of persons on the basis of race, handicaps, or other reasons. No person, or class of persons, was either encouraged or discouraged from applying by the advertisement. Neither was employment with the Department nor the hospital a prerequisite. Twenty-four applications were received. Each application was screened using the KSA instrument prepared in advance for that purpose by the procedure delineated above. In the KSA screening or examining process, applicant Patricia Powell scored 266 points; William Dixon scored 250 points; and Jean Spear, the Petitioner, scored 249 points. Applicant Zilla Thompson scored 323 points, S. Peoples scored 232 points, and Betty Thames scored 233 points. These six top point winners in the KSA examining process were selected to be interviewed by the interview committee. The interview committee consisted of five employees: Steve Lacy, an administrator in charge of the program; Gwen Cook, a practicing Registered Nurse in the forensic services at FSH; Judy Wester, a direct care supervisor in forensic; Alva Martin, the chief nursing consultant at FSH; and Willie McLeroy, a forensic direct care supervisor at FSH. The interviews were conducted on February 1, 1993. During the interview process, interview committee member Alva Martin was designated to ask the candidates questions which were written, prepared, and approved in advance under the process already delineated above. Each person interviewed was asked the same questions by the same interviewer in the same sequence. Scoring was done independently by each member of the interview committee and the scores submitted to Steve Lacy of the committee for tabulation. There was no evidence that points awarded were changed or modified in any way once they were awarded by each member of the committee. Applicant Dixon was awarded 3127 points and Petitioner Spear was awarded 2276 points. That made the Petitioner rank fifth from the top point earner, Mr. Dixon. Mr. Dixon met all the minimum requirements set forth in the position description in the HRS Job Bulletin for the position. Mr. Dixon had more forensic nursing experience overall than did the Petitioner, having ten years versus the Petitioner's five years. The Petitioner offered no preponderant, persuasive evidence that the hiring decision for this job or for the other three jobs was racially motivated. The Respondent's position in response to the Petitioner's attempted prima facia showing of racial discrimination, to the effect that she is black and that the successful job applicants were all white, is that, in fact, the Respondent hired the persons it believed were most qualified for the job. In fact, the proof shows that as to three of the positions, already treated herein, the winning applicants were indeed the most qualified for the job. The proof shows that the Petitioner was most qualified for the job currently being discussed in the paragraphs next above, that is, position number 09671. Her denial of hiring for that position, however, was not shown to be due to any racially discriminatory intent given the proof culminating in the above findings concerning how the selection process operated in accordance with the rules and policies of the agency. The preponderant, persuasive evidence shows that the Petitioner was actually better qualified than Mr. Dixon, the nurse who was awarded the position. The expert testimony of Dr. Frank, corroborated by the testimony of witness Betty Thames, in particular, shows that the Petitioner was better qualified for this supervisory position number 09671 because of her more extensive educational and work-experience qualifications. She had more varied experience in the nursing profession in areas that were related to this job than Mr. Dixon had, in spite of his longer experience in the forensic department. The Petitioner was shown to have a superior ability in the area of implementing medications and psychiatric nursing treatment procedures because the Petitioner had demonstrated this ability in a broad variety of settings, with different kinds of patients, coupled with her three and three-quarter years of forensic supervisory experience. She is also superior in her skills and expertise regarding working as a contributing member of a multi-disciplinary team, functioning as a team leader and with consulting with families. She also has more experience as a liaison nursing person with jails and community health-related facilities or resources. Additionally, for position number 09671, KSA number one for that position indicated a desire for experience in a tardive dyskinesia clinic. Only Mr. Dixon had this experience of all the applicants for this position, so the Petitioner was not given credit for it in the screening and interview process. In fact, she had many of the same general skills and abilities. The specific emphasis on tardive dyskinesia experience was shown, however, through the testimony of Dr. Frank, as being unnecessary to this type of supervisory position. More importantly, in the interview for this Senior Registered Nurse Supervisor position (09671), there was a written interview question asked the Petitioner concerning her disability. That question was as follows: "6. Do you have any disabilities that would prevent you from lifting or working a 40-hour week or that would prevent you from performing this job? How many days have you missed in the past year due to illness? How many unscheduled absences did you have in the past year? Do you have any responsibilities commitments or activities that would prevent you from doubling on or changing your work days or weekends?" Witness Betty Thames for the Petitioner also stated that during the course of a telephone interview in which the interview committee chairman, Steve Lacy, questioned her, as the Petitioner's supervisor, concerning her attendance that he made a "nonprofessional remark" (in a negative vein) regarding the Petitioner's physical limitations to the effect that "It doesn't matter why she was out to me". This was related to a discussion between the two in the telephone interview concerning the Petitioner's work attendance history and her back injury. Lacy's statement was admitted into evidence as a "party admission exception" to the hearsay rule. He was clearly an agent of the Respondent and a key person in this hiring process. The Respondent was aware of the Petitioner's disability. She had injured her back on the job in August of 1992. She had been off work receiving worker's compensation benefits for the injury and, based upon her doctor's finding that she had reached maximum medical improvement, had been returned to work, apparently in early 1993, and given light duty involving work not requiring lifting more than 15 pounds, prolonged walking, stooping or bending. She reported this disability on her employment application for these positions. Her back injury clearly limited her in a "major life activity," such as lifting, walking, prolonged standing, or her level of mobility and strength in general. All of the positions for which she had applied were less strenuous than the position she had last held before going on retirement. This was testified to by the Petitioner as well as C. J. Brock, the Respondent's personnel director and Betty Thames, the Petitioner's immediate supervisor. Mr. Brock testified that her injuries would not normally be considered a negative factor for supervisory or consulting positions in nursing, which is the position at issue. In fact, after the Petitioner answered on all of her application forms "yes" to the question concerning whether she had a disabling or handicapping condition and had additionally written that her limitations involved lifting, bending, prolonged standing or walking, the personnel office still qualified her for the position at issue in this proceeding. In spite of that, the Respondent's agent in the hiring process still, at least as to position number 09671, formally asked her about her disability and handicap in the context of the above-quoted questions. The Petitioner maintains she was asked about this in each of her interviews for all four positions. Her testimony does not clearly show exactly what the nature of the questions were, if they were asked, and that self- serving testimony cannot serve as evidence of disability discrimination as to the other three positions, as it is not sufficiently preponderant credible and persuasive. The formal written questioning as to position number 09671, however, does show that the employer had a no doubt genuine, but for the reasons delineated below, illegal pre- occupation about the Petitioner's disability or handicap. There is no evidence of malicious intent in the above-quoted inquiry about the Petitioner's physical limitations or even in the statement attributed to Steve Lacy referenced above. The inquiring statement rather reflects a genuine but ill-advised concern by the Respondent about getting an employee in the subject position who might be absent from work excessively or be the source of other personnel problems due to her disability. The Petitioner has raised an issue concerning "pre- selection" by citing statements witnesses related at hearing, made by certain supervisory individuals involved to one degree or another in the hiring process for the four positions at issue. These statements purport that a certain person who ultimately got the job in question was the person the declarant involved wished to have apply for the job or a statement to the effect that the Petitioner need not apply because another person, such as, for instance, Nora Howell, was going to get the job. These statements were purportedly made before the hiring process started or was completed, and therefore were offered as evidence of illegal pre-selection, that is, illegal pre-selection in the context of the agency's rules. These statements were admitted as party admission exceptions to the hearsay rule. In terms of their credibility and persuasiveness, however, it is pointed out that they were not subject to cross- examination. Moreover, whether they are credible or not, they did not stand as probative of racial discrimination or disability discrimination because the statements could just as easily have been reflections of preferences based on friendship, which might be distasteful, ill-advised, or even illegal in another context but does not itself show racial animus or intent to discriminate based upon the Petitioner's disability. The statements might equally reflect an innocent statement or statements by these individuals which reflect their genuinely-held belief that the persons they purportedly favored were actually the best qualified for those jobs. It is thus found that these statements, as evidence of pre-selection, are largely immaterial to resolution to the issues in this case because they do not have any significant probative value in fact-finding as to the issues of racial or disability discrimination. The Petitioner was paid $1,544.68 bi-weekly through January 25, 1994, the date she retired. She was making $1,499.69 on a bi-weekly basis prior to September 30, 1993, back through the relevant period at issue. Her salary would have been increased a minimum of 10 percent if she had been hired at any of the four positions involved in this case. Because of the above findings of fact, she should have been hired in position number 09761. Thus, she should have had her pay increased by 10 percent from the hiring date for that position forward to the time when she retired. That hiring date would be shortly after the interview date for that position, of February 1, 1993, so her salary should have been increased 10 percent forward from that time with a cost of living increase of 3 percent beginning October 1, 1993, with such back pay and attendant upward adjustment in retirement benefits being awarded through her retirement date of January 25, 1994. There is no proof of compensatory pay, front pay or attorney's fees and costs in this proceeding.
Recommendation Accordingly, in consideration of the preponderant evidence of record and for the reasons delineated in the above findings of fact and conclusions of law, the Petitioner was the victim of discrimination because of her handicap as to position number 9671. Because the Petitioner is unable, due to her total and permanent disability to return to work, her remedy is back pay. She should therefore be awarded back pay represented by the salary she would have earned in position number 9671 from the hiring date of that position which occurred shortly after February 1993, the interview date. She should have her attendant retirement benefits adjusted upward by virtue of being denied that job, with an attendant cost of living increase of 3 percent which she would have earned beginning October 1, 1993, with such increased salary and benefits to be awarded terminating as of January 25, 1994, her retirement date. Jurisdiction is reserved on the issue of attorneys' fees and costs. DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1997. COPIES FURNISHED: Lawrence F. Kranert, Esquires Florida State Hospital, Building 249 Post Office Box 1000 Chattahoochee, Florida 32324 Jack McLean, Esquire 100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909 Larry K. White, Esquire John W. Hedrick, Esquire 1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
The Issue At issue is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts The Petitioner is the State Agency charged with the regulation of the practice of nursing pursuant to Chapters 20,456 (formerly Chapter 455, Part II; see Chapter 2000-160, Laws of Florida) and 464, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is Cynthia Chance. Respondent is a Licensed Practical Nurse in the State of Florida, having been issued license No. PN 0855441. On or between March 1997-May 1997, Respondent was employed by Health Force, a nurse-staffing agency. In or about March 1997, Respondent was assigned to work various shifts at Baptist Medical Center-Beaches. In or about March 1997, Respondent submitted time slips to Health Force alleging that she had worked an eight-hour shift on March 18, 1997. In or about March 1997, Respondent submitted time-slips to Health Force alleging that she had worked an eight-hour shift on March 21, 1997. Findings of fact based on the evidence of record Missing Drugs On May 13, 1997, Health Force received a "late call" from Cathedral Gerontology Center (Cathedral) needing a "stat" nurse because one of their nurses had not come to work. Tresa Streeter (now Calfee), administrator for Health Force, called Respondent who reported to Cathedral at 6:50 p.m. Kim Harrell, R.N., a supervisor at Cathedral, was the nurse who stayed until Respondent arrived. Also at 6:50 p.m. on May 13, 1997, Barbara Kelley, R.N., received and signed for a delivery of medications for residents from American Pharmaceutical Services. Included in that delivery was an order of Alprazolam (Xanax) and an order of Diazepam (Valium) for two residents on the floor where Respondent was working that evening. The delivery came with a separate medication or narcotics card for each medication. There were two floors of residents at Cathedral. Each floor had its own medication cart and its own nurse assigned to the floor. Controlled medications have a separate box in the medication cart with a separate key. The nurse on each floor had a key to her own medication cart but did not have a key to the medication cart of the other floor. The Director of Nursing (DON) also had a key to both medication carts in the event of an emergency such as a lost key. After receiving and signing for these drugs, Nurse Kelley locked the medications that belonged to her medication cart in it and inserted the narcotic cards for those medications into the notebook that corresponded to her cart. She then gave the medications and control sheets that belonged to Respondent's medication cart to Respondent, placing them in Respondent's hand. Nurse Kelley told Respondent that these were controlled drugs and instructed Respondent to lock up the medications in Respondent's medicine cart. There is conflicting testimony as to what happened next. Respondent admits to receiving the medications and the control cards. However, Respondent maintains that she placed the medications in the locked drawer of the medication cart and inserted the cards into the notebook in front of Nurse Kelley, whereas Nurse Kelley maintains that she walked away immediately after giving the drugs and cards to Respondent and did not see her place the drugs in the controlled drug lock box or the cards in the notebook. It was a policy at Cathedral for the out-going nurse to count controlled drugs with the on-coming nurse. When Respondent arrived on the night in question, she counted the controlled medications with Nurse Harrell. The narcotics count for both narcotics cards and actual doses was 16. At the end of her shift, Respondent counted the controlled medications with the on- coming nurse, Pamela Schiesser. The number of narcotics cards and tablets or doses was 16, the same as when Respondent came on duty. Nurse Schiesser was scheduled to work a double shift, 11 to 7 and 7 to 3. During the 11 to 7 shift, Nurse Schiesser was the only nurse for both floors of residents and she, therefore, had the key to both medication carts. Sometime during the 7 to 3 shift on May 14, 1997, Nurse Schiesser called the pharmacy to find out about a medication order she had placed for two residents so they would not run out. She was informed by the pharmacy that the drugs had been delivered the evening before and that they had been signed for by Nurse Kelley. She checked the delivery sheets and confirmed that Nurse Kelley had signed for the medications. After determining that there were no cards for the missing drugs and the drugs were not in the cart, she then reported to her supervisor, Kim Harrell, that the medication had been delivered but could not be located. Nurse Schiesser and Nurse Harrell checked the entire medication cart, the medication cart for the other floor and the medication room but did not find the missing medications. Nurse Harrell then notified the Assistant Director of Nursing (ADON), Lu Apostol, and the Director of Nursing (DON), Fely Cunanan, regarding the missing medications. The ADON began an investigation and secured written statements from all of the nurses on her staff who had access to the drugs: Nurses Kelley, Harrell, and Schiesser. She called Nurse Kelley to confirm that she had received the medications from the pharmacy and confirmed that the two missing medications, Alprazolam (Xanax) and Diazepam (Valium), were given by Nurse Kelley to Respondent. The ADON also called Tresa Streeter (now Calfee), the administrator of Health Force for whom Respondent worked to notify her of the missing medications. On May 14, 1997, Ms. Streeter (Calfee) called Respondent and informed her about the missing drugs. On May 15,2000, Ms. Streeter and Respondent went to Cathedral for a meeting. They were informed that the two missing drugs had not been located and they were shown the written statements of the other nurses. Respondent admitted that the drugs had been given to her the night before by Nurse Kelley, but stated that she had locked the drugs in her cart. She denied any further knowledge about the drugs. At Ms. Streeter's suggestion, Respondent took a blood test on May 15, 2000.1 The drug test result was negative thus indicating that the drugs were not in her blood at the time of the test, which was two days after the drugs were missing. No competent evidence was presented as to how long it takes for these drugs to leave the bloodstream. Cathedral had a policy that required that all controlled substances be properly accounted for and secured by each nurse responsible for the drugs. This policy was verbally communicated from the off-going nurse to the oncoming nurse. When Nurse Kelley gave the drugs and drug cards in question to Respondent, she specifically instructed Respondent to lock up the drugs in the narcotics drawer. Respondent maintains that other people had keys to her medication cart and could have taken the drugs after she put them in the locked narcotics box. This testimony is not persuasive. Every witness from Cathedral testified unequivocally that there was only one key in the facility for each medication cart and that key was in the possession of the nurse assigned to that cart. The only other key, which was in the possession of the Director of Nursing, was not requested or given to anyone at anytime material to these events. The persuasive testimony is that Respondent was the only person during her shift with a key to her medication cart. That key was passed to Nurse Schiesser who discovered that the drugs and narcotics cards were not in the medication cart or notebook. The count of the drugs and the cards on hand did not show that anything was missing at the change of shift from Respondent to Nurse Schiesser as the count was 16, the same as when Respondent came on the shift. If Respondent had put the drugs and corresponding cards in the medication cart, the count should have been 18. The only logical inference is that Respondent did not put the drugs or cards in the cart. In the opinion of the two witnesses accepted as experts in nursing and nursing standards, Respondent's failure to properly secure the narcotics and to document the receipt of these controlled drugs constitutes practice below the minimal acceptable standards of nursing practice. Time-Slips While employed by Health Force as an agency nurse, Respondent was assigned at various times to work at Baptist Medical Center-Beaches (Beaches). Respondent submitted time cards or slips for each shift she worked to Health Force so that she would be paid for the work. Respondent submitted time-slips for working at Beaches on March 18 and 21, 1997. When Health Force billed Beaches for these two dates, Anne Hollander, the Executive Director of Patient Services, the person responsible for all operations at Beaches since 1989, determined that Respondent had not worked on either March 18 or 21, 1997. Ms. Hollander faxed the time-slips back to Health Force for verification. She advised Health Force that Respondent was not on the schedule as having worked on either of those dates. She also advised Health Force that the supervisor's signatures on the two time-slips did not match anyone who worked at Beaches. Ms. Hollander is intimately familiar with the signatures of all the supervisors who are authorized to sign time-slips at Beaches and none of them have a signature like the signatures on the two time-slips. Health Force did an investigation and ended up paying Respondent for the two days, but did not further invoice Beaches. Health Force was never able to determine whose signatures were on the time-slips. Health Force did have Respondent scheduled to work at Beaches on March 21, 1997, but not on March 18, 1997. Beaches keeps a staffing sheet for every day and every shift. The supervisors are responsible for completion of the staffing schedules to ensure that the necessary staff is scheduled to work on each shift. These staffing sheets are used for both scheduling and doing the payroll. According to Ms. Hollander, it is not possible that Respondent's name was just left off the staffing sheets. The staffing sheets are the working sheets. If a person works who is not originally on the staffing sheet, the supervisor writes that person's name into the correct column at the time they come to work. Ms. Hollander has been familiar with these staffing sheets for 12 years and does not recall any time when someone's name has been left off the staffing sheet when he or she had worked. The two supervisors who testified, Erlinda Serna and Carol Lee, are equally clear that in their many years of experience as supervisors at Beaches, no one has worked and not been on the staff schedules. Anybody who worked would show up on the schedule. Every shift and every day should be on the staffing schedules. Ms. Serna is unaware of any time in her 10 years at Beaches that someone's name was left completely off the schedules, but that person actually worked. Respondent's name was on the staffing schedule for March 21, 1997, but it was crossed out and marked as cancelled. When agency nurses are scheduled at Beaches, but are not needed, they are cancelled with the agency. If the agency fails to timely notify the nurse and the nurse shows up for work, the agency must pay her for two hours. If the hospital fails to notify the agency timely and the nurse shows up for work, then the hospital must pay the nurse for two hours. In no event is a nurse who is cancelled paid for more than two hours. There are times when a nurse is cancelled and shows up for work, but the hospital has a need for the nurse either as a nurse or in another capacity such as a Certified Nursing Assistant (CNA). If that happens, the nurse's name is again written into the nursing unit staffing schedule. For March 18, 1997, Respondent's name is not on the schedule for Beaches. She did not work in any capacity on March 18, 1997. For March 21, 1997, Respondent's name was on the schedule, but she was cancelled. Even if she had not been timely notified that she was cancelled and she showed up for work, the most she could have billed for was two hours. If she had stayed and worked in a different capacity, her name would have been rewritten into the staffing schedule. Beaches is very strict and follows a specific protocol. No one except the supervisors is allowed to sign time cards. The signatures on these two time cards do not belong to any supervisor at Beaches. Therefore, it can only be concluded that Respondent did not work on March 18 or 21, 1997, at Beaches and that she submitted false time-slips for work she did not do on March 18 and 21, 1997. In June 1997, Respondent was also working as an agency nurse for Maxim Healthcare Services (Maxim). On June 8, 1997, Respondent submitted a time ticket to Maxim and to Beaches indicating that she had worked eight-hour shifts at Beaches on June 2, 3, 4, and 5, 1997. All four days were on the same time ticket and purported to bear the initials and signature of Carol Lee. This time ticket was brought to Ms. Hollander's attention because Beaches had a strict policy that only one shift could appear on each time slip. Even if a nurse worked a double shift, she would have to complete two separate time tickets, one for each shift. Under Beaches policy, no time ticket would ever have more than one shift on it. The time tickets are submitted to Ms. Hollander's office daily with the staffing schedules that correspond. Therefore, a time ticket for a person who is not on the staffing schedule would immediately stand out. When Ms. Hollander was given the time ticket for June 2-5, 1997, she investigated and reviewed the staffing sheets for those days. Respondent was not listed on any of the staffing schedules. Ms. Hollander then showed the time ticket to Erlinda Serna, who was the nursing supervisor on the 3 to 11 shift. Nurse Serna verified that Respondent had not worked on the shift any of those days. Ms. Hollander then showed the time-slip to Carol Lee, the 11 to 7 nursing supervisor. Carol Lee verified that she had not initialed or signed the time ticket and that the initials and signature were a forgery. Nurse Lee would not have signed a time ticket with more than one shift per time ticket because she was well aware of the policy prohibiting more than one shift per time ticket. Nurse Lee verified that Respondent had not been scheduled to work any of those days and that Respondent had not worked on June 3, 4, or 5, 1997. These inquiries to Nurse Serna and Nurse Lee took place within a few days after the dates for which Respondent had submitted this time ticket. Therefore, the matter was fresh in the minds of both nursing supervisors. Both are certain that Respondent was neither scheduled nor worked on June 2-5, 1997. Only nursing supervisors at Beaches are authorized to sign time tickets. Maxim Healthcare has a policy of never working a nurse in excess of 40 hours in one week. The same policy was in effect in 1997. Susan Ranson, the records custodian who also staffs for Maxim on the weekends and assists in their billing, indicated that Respondent was paid by Maxim for working at another facility the same week as June 2-5, 1997. June 2-5, 1997, are a Monday through Thursday. Specifically, Respondent submitted a time ticket to Maxim for another facility showing that she worked 12 hours on Saturday, June 7, 1997, and 13 hours on Sunday, June 8, 1997. Maxim pays from Monday through Sunday. If Respondent had worked 32 hours at Beaches on Monday through Thursday and then 25 hours at another facility on Saturday and Sunday, she would have worked more than 40 hours in one week, which would have violated their policy and would have required Maxim to pay overtime. When Maxim gets a request for a nurse and has no one to send who would not exceed 40 hours in one week, rather than exceed 40 hours, the agency does not staff the job. In the disciplinary document from Health Force dated June 18, 1997, Health Force advised Respondent that it would not be scheduling her based on the complaints they received regarding false billing, the missing drugs at Cathedral, and another incident at Beaches that occurred during this same time. Taken in its totality, the testimony of Respondent is not credible. Respondent's explanation of the discrepancy in the count of drugs and corresponding cards is that during her shift "there was [sic] one or two cards that only had one or two pills on them, so you just throw them away. And that's what made it back to 16." This explanation is unpersuasive. If there had been any pills left in the drawer from cards that Respondent threw away, the count would have been off at the change of shift. Moreover, several witnesses testified as to the care that is taken to carefully account for all narcotics. Respondent's assertion that narcotic pills were simply thrown away is not credible. Nurse Schiesser clearly remembered that there were no cards for the medications in question and there were no medications from this delivery in the medication cart. Respondent has been previously disciplined by the Board of Nursing in the Board's case No. 98-20122.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, by failing to secure and document receipt of the drugs at Cathedral Gerontology Center; That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005(1), Florida Administrative Code, by falsifying employment and time records on multiple occasions; and That a penalty be imposed consisting of a fine of $1000 and payment of costs associated with probation, together with a reprimand and a three-year suspension of license to be followed by a two-year probation with conditions as deemed appropriate by the Board of Nursing. Reinstatement of Respondent's license after the term of the suspension shall require compliance with all terms and conditions of the previous Board Order and her appearance before the Board to demonstrate her present ability to engage in the safe practice of nursing, which shall include a demonstration of at least three years of documented compliance with the Intervention Project for Nurses. DONE AND ENTERED this 29th day of December, 2000, 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 29th day of December, 2000.
Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact This cause comes on for hearing based upon the petition of Jeanne Fried, R.N. filed with the State of Florida, Department of Professional and Occupational Regulations, Board of Nursing, Respondent. This petition was received by the Respondent on October 4, 1978 and referred to the State of Florida, Division of Administrative Hearings for consideration in accordance with the provisions of Section 120.57(1), Florida Statutes. The Petitioner is a Registered Nurse licensed to practice in Florida. The Respondent is an Agency of the State Of Florida which has among its responsibilities the licensure, certification and regulation of certain individuals who wish to practice nursing in the State of Florida, to include the Petitioner. In 1968, the Petitioner received a Baccalaureate degree from the Medical College of Georgia. Her degree was in nursing and she became a Registered Nurse at that time. Since 1968, the Petitioner has worked in the field of nursing. In addition, she has received a Masters of Education degree from the University of Florida with a minor in nursing. This latter degree was earned in December, 1975. Subsequent to receiving the Masters of Education degree, Ms. Fried attended a course entitled Studies for Nurse Practitioners for Adult Care, and was awarded a certificate of completion in that course. That certificate was received in March, 1976 and a copy of the certificate may be found as the Petitioner's Exhibit Number One (1), admitted into evidence. After receiving that certificate, she worked in the capacity of an Advanced Registered Nurse Practitioner at the Lake Butler Reception and Medical Center, Lake Butler, Florida from April, 1976 through August, 1976. From August, 1976 to the present, the Petitioner has worked in a similar position in the Veterans Administration Hospital at Lake City, Florida. Until July 17, 1977, the Respondent had not recognized nor established guidelines for the position known as Advanced Registered Nurse Practitioner. On that date, the Respondent enacted an item entitled Appendix to Chapter 210-11, Guidelines for Advanced Registered Nurse Practitioner Programs of Study. This item appears as a rule set forth in the Florida Administrative Code. The authority for the passage of the rule is found in Subsection 464.051(3), Florida Statutes and it implements Subsections 464.021(2)(a), 4 and 464.051(3)(d) and (e), Florida Statutes. To receive the necessary certification to become an Advanced Registered Nurse Practitioner, an applicant must comply with the guidelines set forth in the aforementioned appendix. The only aspect of the guidelines which is in dispute between the parties is found in that section of the appendix entitled, "Curriculum" and specifically (3) which reads: The program shall be at least one (1) academic year in length (nine months full time) which shall include a minimum of one (1) academic quarter of theory in the biological, behavioral, nursing and medical sciences relevant to the area of advanced practice, in addition to clinical experience with a qualified preceptor . . . The petitioner does not disagree with the fact that the course that she was certified in from the University of Florida in March, 1976 does not constitute an academic year within the meaning of the appendix; however, she is of the persuasion that she is entitled to certification as an Advanced Registered Nurse Practitioner because individuals who also attended the University of Florida course, Studies for Nurse Practitioner for Adult Care, have been certified by the Respondent as Advanced Registered Nurse Practitioners. (This certification for the other individuals has occurred notwithstanding their failure to complete a full academic year as prescribed in the guidelines for the Advanced Registered Nurse Practitioners found in the Appendix to Chapter 210-11, Florida Administrative Code.) The basis for the certification of these other unnamed individuals transpired through an apparatus of the Respondent, in which, by meeting of its governing board, it was determined that individuals who did not meet the academic requirements of the Appendix to Chapter 210-11, Florida Administrative Code, nonetheless would be given an opportunity for certification as Advanced Registered Nurse Practitioners. This special dispensation on behalf of these unnamed parties was granted in the face of the clear requirements of the established rule, which is the Appendix to 210-11, Florida Administrative Code. By that, it is meant that the rule was passed effective July 17, 1977, but its application to these unnamed individuals who received certification as Advanced Registered Nurse Practitioners without complying to the terms and conditions of the rule, was withheld. The technique for withholding it was to extend the period of enforcement of the guidelines to become effective March 31, 1978 as opposed to the prescribed date of July 17, 1977. Any applicants who applied prior to that date would be considered on a basis which did not require strict compliance with the academic requirements of the "Curriculum" guideline, which could be and was waived in the instances of some of the applicants, to include applicants in a similar factual circumstance to the Petitioner in that they had attended the University of Florida, College of Nursing course, Studies for Nurse Practitioner for Adult Care. The way prospective applicants were notified of the "grace period" allowing noncompliance with the academic requirement for certification in the subject field, was through the publication of that information in the newsletter of the Respondent which is forwarded to hospitals, public health clinics, colleges of nursing in Florida and the Florida Nurses Association. In addition, the Florida Nurses Association attempted to make its members aware of the "grace period." Also, it was the policy of the Respondent to advise the prospective applicants for certification as Advanced Registered Nurse Practitioners of the opportunity for consideration during the "grace period." This information sheet was typically mailed to the applicant with the application form, once an inquiry on the question of application had been received from the applicant. The Petitioner did not receive notice of the "grace period" through any published newsletter or bulletin and did not receive a copy of the information sheet which would have apprised her of the fact of the "grace period." She inquired about making application in February, 1978 and began to execute her application form on March 13, 1978 and completed the form on June 14, 1978. This can be seen by an examination of the Petitioner's Exhibit Number Five (5) admitted in evidence, which is a copy of the application for certification as Advanced Registered Nurse Practitioner filed by the Petitioner with the Respondent. Due to the fact that the application was received subsequent to March 31, 1978, and the fact that the Petitioner did not meet the academic requirements established in the Appendix of Chapter 210-11, Florida Administrative Code, her application to be an Advanced Registered Nurse Practitioner was denied through correspondence dated September 13, 1978.
Recommendation It is recommended that the application by the Petitioner, Jeanne Fried, R.N., be denied by the Respondent, State of Florida, Department of Professional and Occupational Regulations, Board of Nursing. DONE and ENTERED this 30th day of January, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Ms. Jeanne Fried, R.N. Post Office Box 932 Alachua, Florida 32615 Geraldine Johnson, R.N. Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.
Findings Of Fact Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient, G. C. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable nursing practice in the treatment of patient, G. C.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East Tallahassee, Florida 32312 Bonnie Fay Baker Palmer Route 2, Box 810 Waynesville, Georgia 31566 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
