The Issue This order addresses three cases consolidated for hearing. The first case chronologically is DOAH Case No. 00- 1964, which arises from the pre-licensure inspection initiated as a result of Respondent's application for a certification to provide limited nursing services, and seeks to levy fines for repeated violations originally noted in the biennial inspection of September 10, 1999. The second case chronologically is DOAH Case No. 00-1963, which arises from the re-inspection of the pre-licensure inspection performed on February 21, 2000, and relates to fines for repeated violations of the rules. The third case chronologically is DOAH Case No. 00-1965, which is related to issuance of the Department’s denial of certification to provided limited nursing services; however, it is based upon the same factual predicate as Case No. 00-1963. The issues in each of the cases are as follows: Case No. 00-1964: Should fines be levied against the Respondent as the result of an inspection which (1) was conducted without notice contrary to the letter concerning the inspection from the Department, and (2) in the absence of specific proof that the specific violation was repeated. Case No. 00-1963: Should fines be levied against the Respondent for failure to correct violations identified in an inspection that was not noticed contrary to the information provided to the Respondent, and when the Respondent was not rendering any services to which the violation applied. Case No. 00-1965: Should Respondent be denied a certification to provide limited nursing services based upon the violations discovered in the inspections of January 18, 2000 and February 21, 2000.
Findings Of Fact General Facts The Department is the agency charged with the inspection, regulation, and licensure of adult living facilities. The Respondent is an adult living facility owned and operated by Christal L. Caso. On November 11, 1999, Mr. Robert Cunningham conducted a biennial inspection of Respondent’s adult living facility (ALF). He identified a number of deficiencies that were written up in a detailed inspection report. Mr. Cunningham identified copies of his report which were a part of the Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963. A re-inspection was conducted in December of 1999, and all of the deficiencies noted had been corrected. The Administrative Complaint in Case No. 00-1964 alleges that on January 18, 2000, certain deficiencies found during Mr. Cummingham’s inspection on November 11, 1999, were repeated. His inspection report and its findings will be referenced and discussed in conjunction with the consideration of the report for January 18, 2000; however, there are no issues involved directly with Mr. Cunningham’s inspection or his report in any of the three pending cases. The Respondent applied for an additional certification to provide limited nursing services (LNS) at its facility. This application was duly processed and the Respondent was notified by letter, dated January 13, 2000, from the Department’s Tallahassee office that the facility must notify the Department within 21 days that it was ready for an operational survey (inspection), and that an announced inspection would be scheduled within several weeks. On January 18, 2000, Ms. Eleanor McKinnon, an inspector with the Department, arrived unannounced at the facility to conduct the pre-licensure inspection. Ms. Caso was not present at the facility at the time Ms. McKinnon arrived. When Ms. Caso arrived at the ALF, she advised Ms. McKinnon that she was not prepared and her inspection was inconsistent with the information Caso had received. Ms. McKinnon continued the inspection citing a policy that their inspections were unannounced. The letter Ms. Caso received from the Department’s Tallahassee office was termed, at hearing, inconsistent with agency procedure by personnel attached to the local office. It was clear Ms. Caso received and relied upon the information contained in the letter, and she had no reason to believe that it was not an accurate statement of how inspections would proceed. Ms. McKinnon prepared a detailed inspection report that was identified as an exhibit in all of the bound volumes. She did not have a clear recollection of the specific findings at the time of the hearing. The inspection reports identify specific areas of operations by alphanumeric designators termed "Tags." These tags relate to a specific area of concern in an inspection such as storage of drugs, medical records, or safety. The tags are listed in a separate column on the inspection reports, and specific violations will be identified and discussed in this order by reference to specific tags as they were at hearing. Licensure Inspection, January 18, 2000 Findings of Fact Specific to Case No. 00-1964 Although the Department's letter of January 13, 2000, said that the Respondent should notify the Department when it was ready for inspection, the Department has the right to inspect at any time for compliance with the rules. Regarding Tag A401, the first violation alleged to have been repeated, the inspection report for November states that "Three of five residents did not have a Health Assessment on file." The January inspection report states, "Review of two resident records revealed that one of the two residents had no health assessment on their medical record." Ms. Caso testified regarding individual records. These records she kept at her office at her house off the ALF’s premises. She was willing to retrieve these records; however, the inspector maintained that they were required to be maintained on site. Regarding the second alleged repeated violation, the November inspection report states, "Medications for Resident No. 3 which were discontinued in August were still in the centrally stored medicine closet." The January inspection report stated at Tag A612, "Tour of the medication room on the day of the survey revealed that medications from residents who the administrator said had been gone for over two years were still in the medication closet." This is alleged in the Administrative Complaint to have violated Rule 58A- 5.0182(6)(d), Florida Administrative Code. The Petitioner included in its exhibit a copy of the cited rule. Regarding the third alleged repeated violation, the January report states that over-the-counter medication was maintained in the medicine storage area without the name of the individual for whom it was prescribed being on it. This was alleged to be a violation of Rule 58A-5.0182(6)(f), Florida Administrative Code. A review of the current rules indicates that Rule 58A-5.0182(6)(d) and (f) do not address the substance of the alleged violation, and that the last amendment to the rule occurred in October 17, 1999. This provision had been repealed before the first inspection. Conclusions of Law for Case No. 00-1964 The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this and the other consolidated cases. This case seeks to fine the Respondent for violations allegedly violated in the original inspection of November 11, 1999, and repeated on the inspection of January 18, 2000. The Department can conduct a compliance inspection at any time. However, to consider such an inspection a pre- licensing inspection is contrary to the letter regarding the inspection procedures sent to the Respondent by the Department’s Tallahassee office. I conclude that, although findings may be considered for general enforcement purposes and fines potentially levied for violations, they cannot be considered a pre-licensing inspection. The practical effect of this is that a general violation applicable to an ALF can be cited and considered; however, fines cannot be levied for those matters related to LNS because the Respondent was not licensed or engaged in rendering LNS. In addition, the Respondent is not subject for fines for violation of those portions of the rules applicable only to providing LNS because the Respondent was entitled to request an announced inspection pursuant to the Department’s letter. The Administrative Complaint of Case No. 00-1964 cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as having been violated presumably a reference to Tag A401 relating to admission standards. Specifically, the cited fault related to health assessments. Rule 58A-5.0191(2)(a), Florida Administrative Code, provides as follows: (2) HEALTH ASSESSMENT. Within 60 days prior to the residents admission to a facility but no later than 30 days after admission, the individual shall be examined by a physician or advanced registered nurse practitioner who shall provide the administrator with a medical examination report, or a copy of the report, which addresses the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations; An evaluation of whether the individual will require supervision or assistance with the activities of daily living; Any nursing or therapy services required by the individual; Any special diet required by the individual; A list of current medications prescribed, and whether the individual will require any assistance with the administration of medication; Whether the individual has signs or symptoms of a communicable disease which is likely to be transmitted to other residents or staff; A statement that in the opinion of the examining physician or ARNP, on the day the examination is conducted, the individual’s needs can be met in an assisted living facility; and The date of the examination, and the name, signature, address, phone number, and license number of the examining physician or ARNP. The medical examination may be conducted by a currently licensed physician or ARNP from another state. The Administrator testified that health assessments were maintained for the residents, but were maintained at her office in her home. The inspector took the position that these assessments had to be maintained on-site; however, there is nothing in the rule upon which to base that conclusion. The rule provides that the physician or advanced registered nurse practitioner will provide the administrator with a copy of the assessment. The inspector did not permit the administrator time to retrieve the assessment for her inspection. In the absence of an inspection of the records, it cannot be determined whether the 30 days' grace period was applicable. I conclude that a health assessment does not have to be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida Administrative Code. The Inspector should have given the Respondent time to retrieve the records. Then a determination could have been made whether the appropriate information was contained in the records. There is no violation and no basis for levying a fine. The alleged violations of Rule 58-5.182(6)(d) and (f), Florida Administrative Code, cannot be a basis for fines or denial of the license because the rule was repealed before the biennial inspection, the pre-licensure inspection, or the re-inspection. Findings of Fact Case Nos. 00-1963 and 00-1965 Ms. McKinnon conducted a re-inspection of the ALF on February 21, 2000. This inspection was the basis for levying fines for alleged repeated violations, and for denying licensure. Therefore, these factual allegations will be discussed together. Ms. McKinnon’s report of inspection is contained in the bound volumes pertaining to Case Nos. 00-1963 and 00-1965. The first tag number is N201, and the Rule alleged to have been violated is Rule 58A-5.031(2)(d), Florida Administrative Code. In the inspection report of January 18, 2000, the inspector made the following observation: "Review of the facility records and interview with the administrator revealed that no log had been prepared for the admission residents to receive limited nursing services." At the time of the inspection, the facility was not licensed to provide limited nursing services. Such services were not being rendered. This log is nothing more than a piece of paper upon which a chronological record of services is kept. This record is not required to be kept until services are rendered under the provisions of the rule. The next tag number of the next violation is N205 on the inspection report of January 18, 2000. Tag N205 alleges violation of Rule 58A-5.0131(2)(ff), Florida administrative Code, because, "Review of the facility records and interview with the administrator revealed that there was no documented information on what services would be provided under limited nursing or who would provide the services." The next tag at issue is N302. It cites a violation of Rule 58A-5.031(2)(a), Florida Administrative Code, and states, Interview with the administrator and review of facility documentation revealed that no provision had been made to have currently licensed nurse in the facility to perform limited nursing services, nor was there a contract with a RN or MD to supervise the services provided. Again, the rule cited in the complaint is wrong. Rule 58A- 5.031(2)(d), provides that the facility must have a contract for nursing services. It was explained at hearing that there was no contract present for a nurse to supervise Ms. Caso, and no contract with Ms. Caso during the first inspection. Ms. Caso testified regarding this. She did not originally believe she was required to have a contract with herself, and, at the time of the second inspection, had a contract drawn with the nurse who was going to be the supervisor; however, the woman was seriously ill and had not been able to sign the contract. At the time of this inspection, the facility was not providing services and could not legally do so until licensed. Tag A401 of the February report cites a violation of Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and states, "Resident No. 5 was admitted on January 31, 1999, and there was no dated health assessment on his record." Conclusions of Law for Case Numbers 00-1963 and 00-1965 Again, the Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the cases. The various tags will be discussed in reverse order. Regarding Tag A401 of the February report citing Respondent for failing to have a dated health assessment for a resident, the proper citation of the rule alleged to have been violated is 58A-5.0181(2), Florida Administrative Code. As stated above, subparagraph (a) of paragraph (2) provides that the physician or advanced registered nurse practitioner shall provide the administrator with a medical examination report no later than 30 days after admission. In this instance, the reports were on-site and were inspected. However, this is not a repeat violation because there is no rule that requires these reports to be maintained on-site (the previously cited violation), and the records were not inspected on the previous visit. Therefore, this was the first time this violation was discovered. Regarding the violation regarding the absence of a signed contract by the supervising nurse (Tag 302), the facility was not licensed to provide LNS, and there were no services being rendered at the time. Therefore, there is no basis for a fine. In so far as this violation relates to the denial of licensure, Rule 58A-5.031(2), Florida Administrative Code, provides: In accordance with rule 58A-5.019, the facility must employ sufficient and qualified staff to meet the needs of residents requiring limited nursing services based on the number of such residents and the type of nursing service to be provided. * * * Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who shall be available to provide such services as needed by residents. The facility shall maintain documentation of the qualifications of nurses providing limited nursing services in the facility’s personnel files. While the absence of the contract is a reason not to issue a license, under the circumstances in this case, it would have been more appropriate for the inspectors to note the discrepancy, and permit the Respondent to send them a copy of the contract when it was signed. It is not a basis for levying a fine. Regarding the alleged violation for failing to maintain a policy for how services will be rendered (Tag N205), first, there is no Rule 58A-5.0131(2)(ff), Florida Administrative Code, as cited by the Agency. Rule 58A-5.0131, Florida Administrative Code, contains various definitions, none of which relate to the alleged violation cited in the inspection report. A review of Rule 58A-5.031, Florida Administrative Code, which deals with the providing of limited nursing services, starts off by stating that a facility must be licensed before it can provide these services. From the description of the violation cited and the testimony of the witnesses, this apparently relates to the absence of a policy setting forth what services will be provided. There is no requirement in Rule 58A-5.031, Florida Administrative Code, for such a policy. The only provision of this rule remotely related to a requirement for some policy and procedure provides: The facility must ensure that nursing services are conducted and supervised in accordance with Chapter 464, F.S., and the prevailing standard of practice in the nursing community. The rule does not mandate how the facility will ensure this. In sum, there is no rule that requires such a policy be on site. Regarding the alleged violation of Rule 58A- 5.031(2)(d), Florida Administrative Code, by failing to maintain a log of nursing services rendered (Tag N201), there was no requirement to maintain the log in the absence of performing the services.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department dismiss the complaints in Case Nos. 00-1963 and 00-1964. That the Department not license the Respondent with regard to Case No. 00-1965, but permit the Respondent to re- file for the subject license without jeopardy due to any of the inspections which have been the subject of Case Nos. 00- 1963 and 00-1964. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 9th day of February, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Christal L. Caso, Administrator Paradise Manor 2949 Carriage Drive Daytona Beach, Florida 32119 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
Recommendation Revoke the license of Respondent Mary Katherine Mitchell. DONE and ORDERED this 31st day of January 1977 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Life Building Jacksonville, Florida 32202 Mary Katherine Mitchell, L.P.N. Route 7, Box 314 Milton, Florida 32570
The Issue The issues in this case are whether, before applying for licensure as a registered nurse in Florida, Petitioner had suffered the denial of an application for licensure as a practical nurse in the state of Virginia, and, if so, whether Petitioner's failure to disclose that fact in her Florida application was a knowing misrepresentation; finally, if either or both of the forgoing questions are answered in the affirmative, whether Respondent has grounds to deny Petitioner's pending application for a nursing license.
Findings Of Fact On October 15, 2012, Petitioner Yolette Tema ("Tema") signed an application for licensure as a registered nurse, which she mailed to the Department of Health for review by Respondent Board of Nursing (the "Board"). Item No. 9 of the application sought information about the applicant's disciplinary history. Four subparts (lettered A through D) asked questions that called for a "yes" or "no" answer, which the applicant was to give by marking the applicable check box. The first question ("9A") was: Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country? Tema answered, "No." In Item No. 10 of the application, there appeared above the signature line the following declarations: I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. Tema's signature manifested her agreement with the foregoing declarations. Despite having acknowledged the hard consequences of deceit, Tema's negative answer to the question of whether she ever had suffered the denial of an application for licensure was false. In fact, in June 2011, the Virginia Board of Nursing had denied Tema's application for licensure as a practical nurse, on the ground that she had provided false information in an effort to obtain a license by fraud, deceit, or material omission. Tema had received timely, contemporaneous notice of the Virginia Board of Nursing's final decision, and she was fully aware of that disposition at all times relevant to this case. When she completed the Florida application in October 2012, therefore, Tema knew that her response to question 9A was false. Because the information Tema failed to disclose obviously would have hurt her chances of obtaining a license in Florida, the undersigned disbelieves Tema's explanation for the material omission, which was that she simply made a mistake.1/ Instead, the undersigned infers that Tema intentionally omitted the damaging fact of the Virginia denial in hopes that the Board would not discover it.2/ The Board did, however, discover the Virginia decision while reviewing Tema's application. Based on that past denial and Tema's present failure to disclose it, the Board determined that Tema's Florida application should be denied. The Board's preliminary decision was communicated to Tema through a Notice of Intent to Deny dated February 11, 2014. Determinations of Ultimate Fact Tema is guilty of having an application for a license to practice nursing denied by the licensing authority of another state, which is a disciplinable offense under section 464.018(1)(b), Florida Statutes.3/ Tema is guilty of attempting to procure a license to practice nursing by knowing misrepresentation, which is a disciplinable offense under section 464.018(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying Tema's application for licensure as a registered nurse. DONE AND ENTERED this 10th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 10th day of September, 2014.
The Issue Whether one or more of the following penalties should be imposed on Elizabeth Worden: revocation or suspension of the Ms. Worden's practice, imposition of an administrative fine, and/or any other relief that the Board of Nursing deems appropriate?
Findings Of Fact Elizabeth Worden is, and has been at all times material hereto, a licensed practical nurse in the State of Florida. Ms. Worden holds State of Florida license number 0739611. Her license lapsed on April 1, 1987, and remained lapsed at least through September 20, 1988. On September 11, 1985, Ms. Worden was arrested and charged with one count of driving under the influence (hereinafter referred to as "DUI") and five counts of possession of controlled substance. On February 24, 1986, Ms. Worden was found guilty of DUI. Additionally, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered based upon a plea of nolo contendere by Ms. Worden to the five counts of possession of controlled substance. Ms. Worden was placed on three years probation for the charge of possession of controlled substance and was placed on a year of probation (to run concurrently with the sentence for possession of controlled substance), ordered to pay a fine, perform community service and had her drivers license suspended for six months for the charge of DUI. During at least part of 1986 and 1987, Ms. Worden was employed as a licensed practical nurse at the Ocala Geriatrics Center (hereinafter referred to as the "Center"). Ms. Worden was one of three licensed practical nurses at the facility during the 11:00 p.m. to 7:00 a.m. shift and was in charge of the patients on one floor of the facility. While on duty at the Center Ms. Worden retired to room 5 in the east wing of the Center almost every night to sleep. She generally went to the room at about 2:00 a.m. and remained in the room until approximately 6:00 a.m. While Ms. Worden slept, she left the certified nurses aides in charge of patient care and assigned duties to the aides which should have been conducted by a licensed nurse. Ms. Worden told the aides to wake her only if a patient needed medication, if another nurse appeared on her floor, and at 6:00 a.m. On three occasions Ms. Worden left the Center while she should have been on duty, leaving certified nurses aides in charge of patient care. On these occasions Ms. Worden was gone from fifteen to thirty minutes carrying out personal errands. Ms. Worden admitted on one occasion to a certified nurses aide that she had consumed a couple of beers before coming to work. Ms. Worden's breath often smelled of alcohol and the room in which she slept also smelled of beer on occasion. During 1987, Ms. Worden entered the Intervention Project for Nurses. She was dismissed from the program in August, 1987, for noncompliance with the program's requirements. On May 18, 1987, Ms. Worden was arrested and charged with DUI and resisting arrest without violence. She was adjudicated guilty of both offenses on July 13, 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Elizabeth Worden be found guilty of having violated Sections 464.018(1)(c) and (g), Florida Statutes, as alleged in Count One and Count Three of the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Worden is guilty of having violated Sections 464.018(1)(f) and (h), Florida Statutes, as alleged in the second Count One and Count Three of the Administrative Complaint be dismissed. It is further RECOMMENDED that Ms. Worden's license as a practical nurse be suspended until the later of the end of a five (5) year period from the date of the final order issued in this case or the date that Ms. Worden provides proof acceptable to the Petitioner of her successful completion of a rehabilitation program acceptable to the Petitioner. DONE and ENTERED this 18th day of November, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2548 The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3-4 2. 5 3-4. 6 5. 7 7. 8 9. 9 10. 10 10-11. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Elizabeth Worden 412-A Clark Street St. Charles, Missouri 63301 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter Executive Director Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the administrative complaint.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: At all times relevant hereto, respondent, Ruthie Mae Owens Brooks (Brooks or respondent), was licensed as a practical nurse having been issued license number PN 0877941 by petitioner, Department of Professional Regulation, Board of Nursing (Board). She has been licensed as a practical nurse since 1987. There is no evidence that respondent has been the subject of disciplinary action prior to this occasion. When the events herein occurred, respondent was an agency nurse for Underhill Personnel Services, Inc., an agency that furnished nurses to various health care facilities, including Methodist Medical Center in Jacksonville, Florida. She was employed at all times as a licensed practical nurse. On November 17, 1990, respondent was scheduled to work the 11 p.m. - 7 a.m. shift at Methodist Medical Center. Although her duty shift began at 11:00 p.m., respondent arrived a few minutes late and reported directly to the medical-surgical- orthopedic wing instead of signing in at the nursing office as required by hospital rules. After reporting to her work area, respondent went to the assignment board to review her assignment for that evening. Her specific duties that evening were to care for five patients in the medical-surgical-orthopedic wing. While respondent was at the assignment board, a registered nurse, Lynn Ivie, came to the board to ascertain her assignment. At that time, Ivie reported that she smelled a "strong odor of alcohol" on respondent's breath. However, Ivie said nothing at that time since she wanted to give respondent the benefit of the doubt. Around midnight, one of respondent's patients awoke in his room with severe chest pains. Both Ivie and respondent immediately went to the room. Although Ivie instructed Brooks to get a vital signs machine (also known as the Dynamap), Brooks ignored the instruction and "wiped the patient's face with a wet cloth". Ivie then brought the machine into the room and respondent was instructed by Ivie to take the patient's vital signs (blood pressure, temperature and pulse). This merely required her to place an attachment around the patient's arm and push a button to start the machine. The operation of the machine is considered a basic nursing skill. According to Ivie, respondent could not focus on the machine and did not seem to remember how to operate it. After waiting a few moments with no response from Brooks, Ivie finally took the patient's vital signs herself. During this encounter, Ivie again smelled alcohol on respondent's breath and concluded that her inability to assist in the care of the patient and to operate the machine was due to alcohol. Within a few moments, the patient was transferred to the intensive care unit (ICU) on another floor. Before accompanying the patient to the ICU, Ivie instructed respondent to chart the incident and action taken in the nurse's notes and then meet her in the ICU with the completed notes. These notes should be completed in an expedited manner so that the nurses in the ICU wing can utilize them in providing follow-up care to the patient. However, respondent did not chart the incident nor bring the notes to the ICU. Indeed, she failed to chart the notes on any of the patients assigned to her that night. By failing to chart any notes that evening, respondent contravened the requirement that a nurse file a report or record (nursing notes). Around 1:30 a.m. on November 18, Ivie and Joyce Biddix, the nursing supervisor, went to the room of one of the patients assigned to respondent and found the patient, a confused elderly male, sitting nude in a chair with the bed stripped of all linens. He had previously been tied to the bed to prevent him from falling. The linens were soiled with urine and were lying in a heap on the floor. Although respondent had taken the patient out of the bed, disrobed him, and removed the linens, she had left him unattended in the room and had not returned. Biddix called down the hall for someone to bring fresh linens and observed respondent "floating" down the hall saying "I can't find the linens" in a "singsong" voice. When she got closer to respondent, Biddix smelled alcohol on respondent's breath. It may reasonably be inferred from the evidence that respondent's conduct with this patient was unprofessional and constituted a departure from acceptable and prevailing nursing practice. After being confronted by Biddix regarding the alcohol, respondent told her she had drunk one beer with her meal around 10:30 p.m., or just before reporting to duty that evening. However, she denied she was intoxicated or unable to perform her duties. Respondent was then told to leave work immediately. The incident was later reported to Underhill Personnel Services, Inc. and that agency contacted the Board. After an investigation was conducted by the Board, an administrative complaint was filed. At hearing, respondent did not contest or deny the assertion that by reporting to work with alcohol on her breath, she was acting in an unprofessional manner and deviated from the standards of acceptable and prevailing nursing practice. In this regard, she acknowledged that she had drunk alcohol (which she claimed was only one tall beer) with her meal around 10:30 p.m., or just before reporting to duty. However, she contended that all of her previously scheduled shifts at the hospital had been cancel led and she assumed her shift that evening might also be cancelled. In response to the allegation that she could not operate the vital signs machine, respondent offered a different version of events and suggested that the machine in the patient's room was inoperative. Therefore, it was necessary for Ivie to bring a Dynamap into the room and Ivie took the vital signs without respondent's assistance. She justified leaving the elderly patient alone without clothes in his room on the grounds there was no clean gown, the patient was not combative, and she was only gone from the room for a few moments. Finally, she contended that she charted the notes for one of her patients but did not chart the others because the remaining patients were removed from her care by Ivie and Biddix when she was sent home at 1:30 a.m. However, these explanations are either deemed to be not credible or, if true, nonetheless do not justify her actions. Although there was no testimony concerning the specific issue of whether respondent is unable to practice nursing with reasonable skill and safety by reason of use of alcohol, taken as a whole respondent's conduct on the evening of November 17, 1990, supports a finding that her capacity was impaired that evening by virtue of alcohol. Accordingly, it is found that respondent was unable to practice nursing with reasonable skill and safety by reason of use of alcohol.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is, RECOMMENDED that respondent be found guilty of violating Subsections 464.018(1)(f), (h), and (j), Florida Statutes (1989), and that her nursing license be suspended for six months but that such suspension be stayed upon respondent's entry into and successful completion of the Intervention Program for Nurses. Respondent's failure to remain in or successfully complete the program will result in the immediate lifting of the stay and imposition of the six-month suspension. Thereafter, said license shall not be reinstated until such time as respondent appears before the Board and can demonstrate that she can engage in the safe practice of nursing. DONE and ENTERED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-5033 Petitioner: Partially adopted in finding of fact 1. Partially adopted in finding of fact 3. Partially adopted in finding of fact 8. Partially adopted in finding of fact 3. 5-6. Partially adopted in finding of fact 4. 7-10. Partially adopted in finding of fact 5. 11-14. Partially adopted in finding of fact 6. 15-16. Partially adopted in finding of fact 7. 17-18. Partially adopted in finding of fact 8. COPIES FURNISHED: Roberta L. Fenner, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Ruthie Mae Owens Brooks 1604 S.W. 40th Terrace, #A Gainesville, Florida 32607 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact Based on the admissions of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact. Respondent, Kimberly Bauzon, L.P.N., is a licensed practical nurse in the state of Florida, having been issued license number PN 0803361. Respondent has been so licensed at all times material to the allegations in the complaint. Between the dates of October 25, 1985, and December 2, 1985, the Respondent was employed as an LPN by the Care Unit of Jacksonville Beach. On various occasions during her employment as an LPN at the Care Unit of Jacksonville Beach, Respondent charted vital signs for patients that she had not, in fact, taken. On or about November 21, 1985, while employed as an LPN on duty at the Care Unit of Jacksonville Beach, without authority or authorization, Respondent left her unit within the Care Unit for at least thirty (30) minutes. During that period of at least thirty (30) minutes on November 21, 1985, during which Respondent was out of her unit, there was no nurse present in the unit to take care of patient needs. Also on or about November 21, 1985, while on duty at the Care Unit of Jacksonville Beach, Respondent was asleep for a period of at least two (2) hours. On one occasion during Respondent's employment at the Care Unit of Jacksonville Beach, Respondent pulled a male adolescent by the waistband at the front of his trousers in the course of directing the patient to provide a urine specimen. The manner in which Respondent pulled on the patient's clothing was inappropriate and unprofessional. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to be asleep while on duty. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to chart vital signs which she has not, in fact, taken. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to leave her unit for a period of thirty (30) minutes in the absence of a replacement nurse.
Recommendation In view of all of the foregoing, it is recommended that the Board of Nursing enter a final order in this case finding the Respondent guilty of one incident of violation of Section 464.018(1)(d), Florida Statutes, and four incidents of violation of Section 464.018(1)(f), Florida Statutes. And in view of the provisions of Rule 210-10.05(4)(d), Florida Administrative Code, it is recommended that the Board of Nursing impose a penalty consisting of a letter of reprimand and further consisting of a requirement that Respondent attend required specific continuing education courses, with an emphasis on the legal responsibilities of a nurse to the patients under her care. DONE AND ORDERED this 19th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1987. COPIES FURNISHED: Lisa Bassett, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kimberly Bauzon, LPN 2968 Songbird Trail Atlantic Beach, Florida 32233 Kimberly Bauzon, LPN 216B Seagate Avenue, #B Neptune Beach, Florida 32233 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 =================================================================
Findings Of Fact Respondent, Carol O'Donnell (O'Donnell), was at all times material hereto licensed as a registered nurse in the State of Florida, and held license number 1498442. On May 15, 1986, O'Donnell was employed as a registered nurse at Broward General Medical Center, Broward County, Florida, on the 3:00 p.m. to 11:00 p.m. shift. At or about 7:30 p.m., O'Donnell abandoned her employment, without notice or authorization, and thereby left her patients unattended. Although the period that elapsed between the time O'Donnell abandoned her position and the time her absence was discovered was apparently of short duration and there was no proof any patient suffered from her absence, her conduct constituted a departure from and failure to conform to the minimum standards of acceptable and prevailing nursing practice in the community.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Carol O'Donnell, be reprimanded, and that an administrative fine of $500.00 be imposed upon her. DONE and ENTERED this 20th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1987. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. 5. Addressed in paragraph 3. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Carol O'Donnell 109 North Birch Road, #4 Ft. Lauderdale, Florida 33312 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
