The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Background On May 1, 2011, Petitioner graduated from Southeastern Community College (West Burlington, Iowa) with a certificate in Practical Nursing (PN). Thereafter, Petitioner received a passing score on the Iowa PN licensure examination, and was issued an Iowa PN license on June 13, 2012. Although both he and his wife hail from Iowa, Petitioner desired to relocate to Florida and seek employment as a practical nurse. In pursuit of that goal, Petitioner submitted an application for PN licensure by endorsement on October 19, 2012. Petitioner’s Criminal History Prior to submitting the Florida application, Petitioner had run afoul of the law on three occasions, only two of which are relevant to the application at issue. On May 10, 2007, Petitioner entered a plea of guilty to misdemeanor battery in Henderson County, Illinois. As a result of this plea, Petitioner was sentenced to two years of supervision and was required to complete anger management counseling. At the request of the Florida Board of Nursing (Board), Petitioner provided a written account of the circumstances surrounding the battery charge as follows: I had just gotten married and my wife and I were out celebrating her birthday at a club. A bouncer came to me and said that the person I had came in with was being bothered by someone else and that I should go check on her. I got my wife and we were in the process of leaving along with the rest of our group. The person bothering my wife continued talking and fussing. As I turned my back to leave, the person grabed [sic] me by the shoulder and lunged at my wife. In reaction I instinctively protected my wife feeling that she was in danger. Everyday since then this has haunted me. If I had taken a different path I would not be writing you this letter today. I feel I have learned the hard lesson from this mistake. I completed the requirements of the court for this along with my own self evaluation of life of how better to handle the situation or avoid them all together. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the battery incident was consistent with his written account above, and is found to be credible. Henderson County court records reflect that Petitioner was accused of striking the person who had been bothering his wife “in the face with his fist.” On July 27, 2011, Petitioner was charged with driving under the influence, also in Henderson County, Illinois. On August 30, 2011, Petitioner entered a plea of guilty to the misdemeanor charge. In his written submission to the Board, Petitioner explained the circumstances surrounding this incident as follows: Regarding my DUI, I had just finished my semester for LPN. I was out celebrating with some classmates. I was pulled over because my oversized tires went over the white line. I was arrested for DUI. I went to the states attorney and explained my situation. He informed me that he would allow me to have court supervision if I pled guilty and pay a hefty fine. My lawyer informed me that this was not a reasonable means for stopping me, but since I had already talked to the states attorney, he informed me that it would not be wise to fight this case because I had already spoke with the states attorney and gave a verbal agreement of what I agreed to do. I have completed all of my classes, I am still paying monthly on my fine, which will be finished this year. I have learned my lesson from this situation. As a nurse I have a high standard to uphold to help people get better and by drinking and driving I was endangering many lives which is the opposite of my civic, humanitarian and the basic oath I took when I decided to become a nurse. Petitioner’s unrebutted testimony at hearing regarding the circumstances of the DUI charge was consistent with his written account above, and is found to be credible. As a result of his guilty plea, Petitioner was ordered to pay a fine and attend a substance abuse class, which he successfully completed. Petitioner’s Application Respondent introduced a copy of Petitioner’s “Initial Application for Licensure” which was submitted by Petitioner through the Board’s online website. The online application contains the following question: Criminal History Have you ever been convicted of, or entered a plea of guilty, nolo contender, or no contest to, a crime in any jurisdiction other than a minor traffic offense?2/ Your answer: NO At hearing, Petitioner testified that although he carefully reviewed his application before submitting it, he did not intend to answer the above question in the negative, and that “he made a mistake” when he did so. On cross-examination Petitioner confirmed that he read and understood the Affirmation Statement at the end of the application, and that he affirmed that the information he provided was true and correct. There is no question that Petitioner provided a false response on his application regarding his criminal history. However, the evidence of record does not support a finding that the false statement was intentional. At hearing, Petitioner presented as an articulate, intelligent, and well-educated individual. Petitioner had also successfully undergone the PN application process in Iowa, and was therefore familiar with the application review process. As such, it is reasonable to infer that Petitioner was aware that the information he provided on his application would be verified by Board personnel. This makes it increasingly unlikely that Petitioner intentionally falsified his application, since he could have no reasonable expectation of successfully perpetrating a fraud on the Board. Petitioner was notified by correspondence dated November 10, 2012, that he was required to provide information concerning his criminal history. As noted, it was not until after the notification that Petitioner provided explanations regarding his criminal charges to the Board. Petitioner included several letters of reference with his application to the Board. One of those letters was from his former employer in Iowa, Wayland Mennonite Home Association. In that letter, the facility’s director of nursing wrote: December 4, 2012 To Whom it may Concern: Hosea Pratt has been employed as a licensed practical nurse, at Parkview Home, Wayland, Iowa. He started employment September 11, 2012. Our pre-employment criminal background evaluation revealed a court proceeding regarding the suspension of his Iowa driver’s license. There was no disposition on this case and Iowa Department of Human Services ruled this did not preclude him from practicing nursing. He had a valid Iowa driver’s license at the time of hire. Hosea functioned independently as a night shift charge nurse. He assisted with orientation of new nursing staff. He completed assigned tasks during his scheduled shift. He proved to be a thoughtful young man, who demonstrated kindness towards our residents. He had good assessment skills and excellent computer technical abilities. He would be welcomed back to work in this facility. On April 9, 2013, the Board informed Petitioner that it intended to deny his Florida application. Petitioner thereafter challenged the intended denial of his application, and the instant proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order approving Petitioner's pending application for licensure as a practical nurse without conditions. However, should the Board determine that approval with conditions is warranted, a one-year probationary period is recommended. DONE AND ENTERED this 22nd day of October, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2013.
Findings Of Fact Petitioner is a native of Haiti, where she graduated from the Université d'Etat d'Haiti, l' École Nationale des Infirmières, Haiti's national nursing school, in 1993. Since 1997, she has lived and received mail at a residence in North Miami Beach, Florida, having the following mailing address: 1120 Northeast 155th Street, North Miami Beach (or, alternatively, Miami), Florida 33162 (155th Street Mailing Address). In or about 2006 and 2007, Petitioner attended the Miami Lakes Educational Center's practical nursing program, but she never completed the program. Thereafter, Petitioner enrolled in and later completed (in or about June 2008) a "remedial" program of practical nursing coursework specifically designed for graduates of Haiti's national nursing school. The coursework was given at Miami-Dade College (North), under the directorship of Mariane Barrientos. On April 23, 2009, Petitioner filed with Respondent an Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (First Florida Application). On the completed application form, in the spaces provided for the applicant to indicate the "Nursing School Attended" and "Additional Nursing Program Attended," she wrote "Universite D'Etat Ecole Nationale Des Infirmières" and "Miami Dade College Remedial Theory & Clinical," respectively. By letter dated April 30, 2009, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the address she gave as her mailing address on her First Florida Application, Respondent advised Petitioner that it had received her First Florida Application and, upon review, had determined it to be "incomplete" because the following requirements had not been met: Graduates of schools outside the United States must have credentials evaluated by a Board approved credentialing service. . . . Evaluation results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. Graduates of schools outside the United States must provide proof of Board approved English competency. . . . Results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. After having received this letter, as well as follow-up written correspondence from Respondent dated August 12, 2009, also addressed to Petitioner's 155th Street Mailing Address (with "Miami" designated as the city), Petitioner withdrew her First Florida Application by completing a Respondent-created form (on which she gave her address as "1120 NE 155 St Miami Fl 33162") and submitting it to Respondent on October 27, 2009. Approximately two months later, in or around December 2009, Petitioner submitted an Application for License by Examination: Practical Nurse, to the Colorado Board of Nursing (Colorado Application). The application was accompanied by a money order (in the amount of $88.00) Petitioner had obtained to pay for the application fee. On the completed application form, under "Name of Professional Nursing Program Attended," "Miami Lakes Educational Center" was written; in the space provided for the applicant to indicate the "Date of Graduation," it was claimed, falsely, that Petitioner had graduated from this "[p]rofessional [n]ursing [p]rogram" in June 2009; and Petitioner gave her 155th Street Mailing Address (with "Miami" designated as the city) as her mailing address. At the end of the form was the following "Attestation," which Petitioner signed and dated on December 14, 2009: I state under penalty of perjury in the second degree, as defined in 18-8-503, C.R.S., that the information contained in this application is true and correct to the best of my knowledge. In accordance with 18- 8-501(2)(a)(1), C.R.S. false statements made herein are punishable by law and may constitute violation of the practice act. In support of the Colorado Application, the Colorado Board of Nursing received a fraudulent Miami Lakes Education Center transcript showing, falsely, that Petitioner had completed the nursing program at the school on June 29, 2009. The transcript purported to be signed (on December 11, 2009) by Dr. Angela Thomas-Dupree, who was an administrator at the Miami Lakes Education Center at the time. In fact, the signature on the transcript was a forgery: it was not Dr. Thomas-Dupree's, and she had not authorized anyone to sign her name on any transcript issued by the Miami Lakes Education Center.3/ In response to the Colorado Board of Nursing's request that she "verify [the] transcript" it had received (a copy of which the Board sent to her), Dr. Thomas-Dupree advised the Board, in writing (through a memorandum dated March 16, 2010), that (contrary to what the transcript indicated) Petitioner "[a]ttended [but] did not complete" the nursing program at the Miami Lakes Education Center. Thereafter, the Colorado Board of Nursing made its determination to deny Petitioner's Colorado Application on the ground that she had "attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact" in violation of Colorado law.4/ By letter dated June 25, 2010, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the Colorado Board of Nursing advised Petitioner that a decision had been made to "deny [her] request for a license." The body of the letter read as follows: Panel B of the State Board of Nursing ("Board") reviewed your application for a Practical Nurse license on June 23, 2010. After careful consideration of all of the information contained in your application file, it was the decision of the Panel to deny your request for a license based on C.R.S. §12-38-118 and §12-38-117(1)(a) and its determination that you: have procured or attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact; If you feel that you have additional information or documentation to submit that would change the outcome of the Panel's decision you may write a letter and request that your file and the supplemental information be re-examined by the Panel. Feel free to contact me if you have any questions regarding this process. Pursuant to sections §12-38-1-117, 12-38-118, and 24-4-104(9), C.R.S., you have the right to request a hearing regarding the denial of your application. In order to exercise this right, you must provide written notification to the Board at the above listed address within sixty days from the date of this letter specifically requesting a hearing. In the event that you do not make a timely request for a hearing, the denial will become final. At the end of the letter was a Certificate of Service, signed by the letter's author, certifying that the letter: was sent First Class Mail from Denver, Colorado, this 25th day of June 2010, addressed as follows: Benita S. Jean-Noel 1120 NE 155th Street Miami, FL 33162[5/] Petitioner received the Colorado Board of Nursing's June 25, 2010, letter,6/ but did not request a hearing on the decision to "deny [her] request for a license." The decision therefore became final, as the letter indicated it would. From approximately December 2011 to December 2012, Petitioner took additional nursing coursework at Sigma Institute of Health Careers (Sigma). On November 5, 2012, before graduating from Sigma, Petitioner filed with Respondent a second Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (Second Florida Application). Her signature (dated September 5, 2012) was affixed on the line provided for the "Applicant's Signature" on the penultimate page (page 17) of the completed application form, and it was immediately preceded by a statement reading, in pertinent part, as follows: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. At the time she filled out and signed the application form, Petitioner knew that she had applied for licensure as a practical nurse in Colorado and that her application had been denied on the grounds that she had "attempted to procure [the applied-for] license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact." Nonetheless, wanting to keep this damaging information from Respondent, in response to Question 6A on page 13 of the form, which was, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country?," she checked the "No" box, knowing her answer to be false. Question 6A was one of four questions in the "Disciplinary History" section of the form, at the end of which was the following directive: If you answered "Yes" to any of the above questions, please send a written letter of self explanation. You must contact the Board(s) in the State(s) in which you were disciplined. You must request official copies of the Administrative Complaint and Final Order be sent directly to the Florida Board of Nursing. Consistent with her having answered Question 6A in the negative, Petitioner did not, along with the submission of her completed Second Florida Application, "send a letter of self explanation" concerning the denial of her Colorado Application.7/ Despite Petitioner's nondisclosure, in its investigation of Petitioner's application, Respondent found out about the Colorado Board of Nursing's denial of her application in 2010, and it obtained a copy of the June 25, 2010, denial letter that Petitioner had received from the Colorado Board of Nursing. Thereafter, by letter dated November 15, 2012, addressed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city), the address she gave as her mailing address on her Second Florida Application, Respondent directed Petitioner to, among other things, "[r]equest that the Board(s) in the state[s] where [she was] previously denied send official copies of the final order to the Florida Board of Nursing" and to also "[s]ubmit a self explanation in reference to the denial(s)." In response to this request, Petitioner wrote Respondent a letter in which she denied, falsely, ever even having applied for a license in any state, including Florida, in the past. Respondent, however, knew better. On February 15, 2013, it issued the Notice of Intent to Deny set out in the Preliminary Statement section of this Recommended Order. The Notice's Certificate of Service reflects that it was mailed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city) on February 18, 2013. In response to the Notice, Petitioner wrote a letter to Respondent, dated March 4, 2013, claiming, falsely, that she "never applied to the Colorado Board of Nursing"8/ and expressing her "read[iness] to challenge any misconception or any misunderstanding regarding the matter." Respondent treated Respondent's letter as a request for hearing and, on March 12, 2013, referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing. The assignment was made, and the hearing was held, as noted above. The foregoing Findings of Fact are based on the evidence received at that hearing and the record as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order denying Petitioner's pending application for licensure as a practical nurse on the grounds alleged in the Board's February 15, 2013, Notice of Intent to Deny.12/ DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct which will he set forth hereinafter in detail, engaged in acts and/conduct violative of Subsection 464.21(1)(d) and (g), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Michael Ray Hernicz, R.N., is a licensed registered nurse who holds license No. 0985972. Additionally, the Respondent has been certified as a Certified Registered Nurse Anesthetist (CRNA) and an Advanced Registered Nurse Practitioner (APNP). By its eight-count Administrative Complaint filed March 14, 1979, the Petitioner, Florida State Board of Nursing, seeks to place on probation, suspend or revoke the Respondent's license to practice nursing based on allegations that: During the week of January 15, 1979, Respondent caused to be advertised in the DeLand Sun News, a newspaper of general circulation the opening of an office in the 4 Towns Shopping Center, Orange City, Florida, for the general practice of medicine and used in connection with his name designation, "M.D." to imply or designate himself as a medical practitioner while not licensed, in violation of Florida Statutes Sec. 458.152(a), (b) and (c). On or about February 9, 1979, in Orange City, Florida, Respondent administered medical treatment to Steven H. Gaffney which action was not within the purview of the Nurse Practice Act, Florida Statutes Chapter 464. On or about February 9, 1979, Respondent practiced medicine as defined by Florida Statutes Sec. 458.13, in that he diagnosed, treated and prescribed medication for Steven Gaffney although not licensed to practice medicine in Florida and without the responsible supervisory control of a licensed physician, in violation of Chapter 453 and the Nurse Practices Act, Chapter 464, Florida Statutes. On or about February 16, 1979, Respondent was arrested by law enforcement officers of the Volusia County Narcotics Task Force at his office in Orange City, Florida, and was found to be in unlawful possession of controlled substances as set forth in Florida Statutes Chapter 893. On or about February, 1979, Respondent, for a fee, treated and prescribed medication for patient, Gladys M. Mossman, which treatments and medications were not prescribed or authorized by a person licensed to practice medicine in Florida. Respondent, for a fee, also treated and administered medications to cardiac patient, Nils Ljunberg, which treatment and medications were not prescribed or authorized by a person licensed in the State to prescribe medications or treatment, in violations of Florida Statutes Chapters 458 and 464. On numerous occasions from January 15, 1979, through February 9, 1979, Respondent unlawfully practiced medicine in violation of Chapter 458 by prescribing medications for various patients and treating said patients when he was not licensed to do so and while he was not acting under the responsible supervisory control of a licensed physician or without the purview of the Nurse Practices Act, Florida Statutes Chapter 464. In conclusory fashion, it is alleged that the Respondent is therefore guilty of engaging in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, in violation of Florida Statutes 464.21(1)(d) and (g). The facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute. What is in dispute, however, is the nature and scope of treatment authorized by nurse practitioners, such as Respondent, in view of the additional acts apparently approved by the Joint Advisory Committee on Advanced Nursing Practices. Section 464.021, Florida Statutes. Respecting the allegations that the Respondent caused to be advertised in the DeLand Sun News, an advertisement to the effect that he was opening an office for the general practice of medicine, Steve Blais, an advertising official of the Deland Sun News, appeared and testified that the day following the advertisement which appeared in the local paper, Respondent telephoned his office to alert the paper's advertising staff that a mistake had been made and that the initials "M.D." should not have followed the designation in his ad as he was not a licensed medical doctor in Florida. Mr. Steve Blais offered Respondent a letter of correction such that he could show to customers or anyone who needed documentation. Mr. Blais testified that the ad with the M.D. format ran on January 13, 14 and 17, and that the change was made on or about January 24 to delete the designation "M.D." from the ad. As stated, the facts surrounding the treatment aspect of the allegations are undisputed. However, Respondent contends that based on the supervisory arrangements and the written protocol that he had with Dr. Randal Whitney, M.D., and the working relationship that he had with Dr. Jeffrey Rudell, he was authorized to do the acts which he is here charged with as being violative of the Nurse Practice Act and Chapters 458 and 893, Florida Statutes. As originally conceived, the Respondent planned to practice with Dr. Jeffrey Rudell, who was then licensed in Alabama and who had applied for licensure by endorsement in Florida. This application by Dr. Rudell for licensure by endorsement was denied and Respondent entered into a supervisory relationship with Dr. Randal Whitney of Daytona Beach, Florida. Dr. Whitney appeared and testified that he had in fact entered into a supervisory relationship with Respondent and that he was consulted by Respondent on the treatment of several patients. Dr. Whitney's testimony is that of these patients about when Respondent consulted with him, he concurred with the method of treatment outlined and/or prescribed by Respondent. Respondent testified that he reached a decision that he could properly treat patients while working under the supervision and control of a licensed medical doctor or other specialized practitioner after considerable reflection on the latitude granted Advanced Registered Nurse Practitioners. In support of this decision, Respondent points to the fact that the Joint Committee, by its official Minutes, pointed out in Section 210-11.03, acts which were proper to be performed by an Advanced Registered Nurse Practitioner. Therein, the Board authorized various categories of functions that Advanced Registered Nurse Practitioners may perform at advanced and special levels which are recognized by the nursing profession and which are currently included in the curricula of advanced nursing education programs by the Board (Petitioner). Additionally, the Board authorized Advanced Registered Nurse Practitioners to perform such additional acts as was recognized by the Advisory Committee created by Florida Statutes Subsection 464.021(2)(a)(4) as proper to be performed by an Advanced Registered Nurse Practitioner. Petitioner requested the minutes from numerous meetings of the Board from 1977 through 1978 and noted that Board Member Charles D. MacIntosh during a meeting with the Board of Nursing advised that the Board of Medical Examiners had met on April 2, 1978, and ratified a new appendix D regarding Advanced Registered Nurse Practitioners. Dr. MacIntosh urged the Board that in light of the ratification by the Board of Medical Examiners, the Joint Advisory Committee should jointly meet to work out a proposed formulary of drugs that would he available to Advanced Registered Nurse Practitioners. The Board thanked Dr. MacIntosh for apprising them of the medical board's actions and Petitioner's counsel stated his opinion that, based upon the interpretations of subject Section 465.031, no conflict would result if the Joint Advisory Committee agreed that prescriptions and medications would be an additional act defined by Florida Statutes 464.021. Page 4 of the minutes indicate that with respect to Advanced Registered Nurse Practitioners, they are authorized to perform those additional acts which are performed within protocols which are jointly established by the Advanced Registered Nurse Practitioner and the M.D., D.O., or D.D.S., or the appropriate medical staff of a healthcare facility. Respondent entered into an arrangement with Dr. Whitney and explained to him the manner in which he expected to treat patients coming to his office and Dr. Whitney agreed to allow him the latitude he envisioned. (TR 259 through 261.) Accordingly, Respondent perceived his actions as falling within the purview of the regulation authorized by the joint committee. (TR 263 through 264.) Additionally, Respondent denied that he represented to anyone in this State that he was a licensed medical doctor. Respondent reiterated his position that he immediately notified the paper and asked them to change the designation to reflect that he was not a medical doctor. (Respondent's Exhibit 17.) On February 16, 1979, Respondent's office was searched by the law enforcement officers of Volusia County Narcotics Task Force in Orange City, Florida, and Respondent was given a list of drugs taken from his office by the law enforcement officers. (Petitioner's Exhibit 5.) No evidence was offered to establish that the Respondent has been found guilty of the unlawful possession of controlled substances as set forth and defined in Florida Statutes Chapter 893.
Conclusions In summation, the Respondent established that he, in addition to being a Registered Nurse, has been further certified as an Advanced Registered Nurse Anesthetist. Dr. Randal Whitney established that he entered a relationship with Respondent under the laws of the State of Florida to be his supervisory or sponsoring physician, to consult with him in the practice, and to call or talk personally with Respondent about problems or cases that might be a potential problem or possibly outside his field of expertise as to what to do about them. A similar arrangement was shown to exist between the Respondent and Dr. Paul Andrews, Additionally, Dr. Rene Almiron, M.D., testified that he agreed to read and interpret EKG's for Respondent. Subsection 464.021(2)(a), Florida Statutes, provides that performance of assessment, diagnosis, counselling and health teaching of the ill are within the definition of professional nursing. It thus appears that all of the acts and/or conduct engaged in by Respondent were permissible acts within the responsible supervisory control of Dr. Randal Whitney or were for medications within the approved formulary for Advanced Registered Nurse Practitioners. Respondent credibly testified that he consulted with Dr. Whitney, who supervised him in the treatment of all of his patients. (TR 261.) Finally, although it was alleged in Count IV of the Administrative Complaint that Respondent was found to be in the unlawful possession of controlled substances in violation of Florida Statutes Chapter 893, the Respondent denies this, and no evidence was offered by Petitioner to counter Respondent's assertion. The record herein reflects that while some of Respondent's acts and/or practices may have been questionable based on the conflicting directions embarked upon by the various joint committees, in view of the latitude granted to Advanced Registered Nurse Practitioners by the Nurse Practices Act and the established working relationship entered into between Respondent and Dr. Randal Whitney, the undersigned concludes that Respondent acted within his authority in his treatment of patients referred to herein. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 4th day of December, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Petitioner became a Registered Nurse in 1965 and has been engaged in the nursing profession since that time. She was awarded a Bachelor of Science in nursing in 1975 from Florida International University and is presently enrolled in the masters of nursing degree program at the University of Miami. In 1973 Petitioner enrolled in the Primary Care Nurse Practitioner program at the University of Miami and successfully completed the six months program in December 1973. During this program she received 1,000 hours training. Upon completion of this training, Petitioner was eligible for licensure as an Advanced Nurse Practitioner but did not apply for registration at that time although she worked as a Nurse Practitioner immediately upon completion of the training. From January 1974 to March 1977 Petitioner worked at Jackson Memorial Hospital at Miami as an Advanced Family Nurse Practitioner. During this period she received actual instruction of approximately one hour per day for a total of some 710 hours in duties of Nurse Practitioner in addition to the daily experience gained working as a Nurse Practitioner. In 1977 Petitioner moved to Colorado where she worked as a Nurse Practitioner from October 1977 until April 1978 for the Rocky Mountain Planned Parenthood organization and the Mountain Community Medical Clinic. In the latter position she manned a clinic that was some 30 to 40 miles from the nearest doctor and communicated with the doctor by telephone in diagnosing and treating patients. She worked some 348 hours in this position. Additionally, Petitioner taught in the Nurse Practitioner program at the University of Colorado one to three days per week from January until May 1978. Upon Petitioner's return to Florida in May 1978 she applied for licensure as an Advanced Nurse Practitioner and was denied licensure because the regulations were changed effective March 31, 1978, to require a one-year educational training program in lieu of the six months program completed by Petitioner. The current approved program at the University of Miami provides some 1,105 hours of training similar to the training Petitioner obtained at the earlier course.
The Issue The issue to be determined is whether Petitioner’s application for licensure by endorsement as a licensed practical nurse in the State of Florida should be granted or denied.
Findings Of Fact Petitioner was licensed as a practical nurse by examination in the State of Ohio, having received her license in Ohio in August of 1994. She practiced in Ohio, generally in long-term care settings, from 1994 to approximately 2009. She was subsequently licensed by endorsement in Virginia on March 17, 2009, and in North Carolina on May 18, 2011. On February 23, 2011, Petitioner received a reprimand against her license in the State of Virginia. The reprimand was issued as a result of a Consent Order in which Petitioner neither admitted nor denied the findings of fact in the Virginia Board of Nursing’s Final Order. Petitioner applied for licensure in North Carolina a few months after the entry of the Virginia Final Order. Her testimony that she disclosed the reprimand in her application for licensure in North Carolina is undisputed and accepted. The application submitted in North Carolina was a paper application. On or about April 27, 2015, Petitioner submitted an electronic application for licensure by endorsement in Florida. The application contains the following question, which Petitioner answered “no”: Have you ever had disciplinary action taken against your license to practice a health care-related profession by the licensing authority in Florida, or any other state, jurisdiction or country? In submitting her application, Petitioner also checked an Affirmation Statement, which includes the following statement: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I affirm these statements are true and correct and 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, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. 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 a Licensed Practical Nurse in the State of Florida. Petitioner did not complete her on-line application in one sitting. She filled it out over several sessions on the computer, because she had to complete the continuing education required for Florida and had to wait for funds to pay the application fee. Because of the way she completed the application, she did not check her application as carefully as she should have and did not realize that she had answered the question regarding discipline in another state incorrectly. Petitioner had notified North Carolina of her previous discipline when applying in that state. There was no basis presented to indicate that she was affirmatively attempting to conceal her prior discipline, as opposed to being negligent in the completion of her application. Petitioner did not realize the error on her application until she inquired about the status of her application after the Board considered it at its June 2015 meeting. After her inquiry, but before receiving the Notice of Intent to Deny, Ms. Walker wrote to the Executive Director of the Board to inquire what she needed to do to correct her error, stating, “it was an honest mistake of marking the wrong box on the question. I had started and stopped the application several times while gathering all of the information needed.” She provided information regarding the Virginia discipline, and a printout of the documents on file with the Virginia Board of Nursing with respect to the reprimand. Petitioner has been a nurse for over 22 years. She loves her job. She was candid and forthright in acknowledging that it was her error and no one else’s with respect to the answers given on the application. While Petitioner clearly needed to be more careful in preparing her application, no deliberate attempt to deceive was demonstrated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Nursing enter a final order granting Petitioner’s application for licensure by endorsement as a licensed practical nurse. DONE AND ENTERED this 8th day of March, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2016. COPIES FURNISHED: Tara Danielle Walker 146 Smoky Crossing Way Seymour, Tennessee 37865 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issue in this case is whether the Petitioner's application for licensure by endorsement should be approved or denied.
Findings Of Fact In June of 1997, the Petitioner filed an application for nursing licensure, by means of which she seeks to be licensed as a registered nurse by endorsement. In support of her application, the Petitioner submitted, or caused to be submitted, evidence showing that she was licensed as a registered nurse in Quebec, Canada, and that she had such licensure status by passing an examination in 1976. The examination she passed in 1976 was the examination administered in French by the Ordre des Infirmieres et Infirmieres du Quebec ("OIIQ"). In 1976, the registered nurse licensure examination given by, or required by, the Florida Board of Nursing was the State Board Test Pool Examination, which was administered by the National Council of State Boards of Nursing. In addition to the licensure examination administered by OIIQ, the Canadian Nurses Association Testing Service ("CNATS") has also offered a registered nurse licensure examination in Canada for many years, including 1976. The Florida Board of Nursing has determined that the CNATS registered nurse licensure examinations administered from 1980 through 1995 are equivalent to the State Board Test Pool Examinations administered by the National Council of State Boards of Nursing. There has been no such determination for CNATS examinations administered before 1980 or after 1995. The evidence in this case is insufficient to determine whether the registered nursing licensure examinations administered in 1976 by either CNATS or OIIQ were substantially equivalent to, or more stringent than, the State Board Test Pool Examinations administered in 1976 by the National Council of State Boards of Nursing.5
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying the Petitioner's application for licensure by endorsement. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of July, 2000.
The Issue The issue is whether either respondent bore a relationship to Petitioner, as described in Section 760.10, Florida Statutes, that confers jurisdiction upon the Florida Commission on Human Relations to investigate Petitioner's claims of racial discrimination under the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner has been a registered nurse licensed in Florida for 14 years. Her specialty is intensive care. Seeking advancement within the profession of nursing, Petitioner decided to pursue certification as a Certified Registered Nurse Anesthetist (CRNA). A CRNA has advanced training and education in anesthesia and passes a national certification examination, which is administered by neither Respondent. Upon passing the examination and meeting other requirements, an applicant is entitled to certification from the Council on Certification of Nurse Anesthetists. After obtaining this certificate and completing other requirements, such as financial responsibility, the applicant is eligible for certification by the Florida Board of Nursing as an advanced registered nurse practitioner in anesthesiology, pursuant to Florida Administrative Code Rule 64B9-4.002. In Florida, a CRNA is authorized to administer anesthesia in in- and out-patient settings and bears significant responsibilities for the safety of anesthetized patients. Petitioner enrolled at Barry University to fulfill the educational requirements for certification. Barry University is a private institution headquartered in Miami Shores and is one of several institutions in Florida that offer a program to satisfy the educational requirements for CRNA certification. The 28-month program at Barry University leads to a master of science degree in anesthesiology. A major component of the educational program is clinical practice. The clinical practice requires a student to perform clinical responsibilities, under supervision, with an anesthesiology group. At the time in question, Barry University maintained relationships with different anesthesiology groups in most major urban areas in Florida. Petitioner began the Barry University program in January 2005 and withdrew from the program in May 2006. She chose to take her clinical training in Orlando, where Wolverine Anesthesia Consultants accepted Barry University students for clinical practice. Wolverine Anesthesia Consultants served various hospitals forming part of the Orlando Regional Healthcare System. Petitioner began the clinical portion of the program in May 2005. No cash is exchanged between Barry University and Wolverine Anesthesia Consultants as part of the arrangement described above. The obvious benefit for Barry University, whose program is not inexpensive, is that Wolverine's supervision of its students in the clinical practice allows Barry to offer a comprehensive anesthesiology program that qualifies its students to sit for the CRNA examination. The obvious benefits to Wolverine Anesthesia Consultants are access to newly certified CRNAs, who are in high demand, and the ability to recruit the students likeliest to excel within the profession. It is less clear, from the present record, if Wolverine is able to bill for the services of more advanced students. From time to time, Wolverine provides Barry with financial support, such as a stipend so that a financially needy student may attend an out-of-town conference, as the tuition charged by Barry does not cover the cost of the program or incidental student costs. The economic relationship between the respondents is only of relevance, however, in providing the background from which to assess the economic relationship between the respondents, on the one hand, and Petitioner--and, more specifically, the value that flows to Petitioner from one or both respondents. Clearly, the educational and clinical programs provide educational value, and potential economic value, if and when certification is obtained, but, as explained in the Conclusions of Law, the key question is what, if any, economic value flows to Petitioner from either respondent during her relationship with each respondent. Neither respondent paid Petitioner any income, compensation, or other benefit, directly or indirectly. Neither respondent ever provided Petitioner with an IRS W-2 statement or Form 1099, as evidence of payments to an employee or independent contractor. She never received compensation of any type from either respondent, nor did she receive an IRS Form 1099, reflective of the payment of compensation to an independent contract. Petitioner never received any other employment- related benefits from either respondent, such as health insurance or retirement benefits. Neither respondent provided Petitioner with housing or a housing allowance. Wolverine did not insure Petitioner on its medical malpractice insurance policy. Neither respondent covered Petitioner under workers' compensation. Wolverine Anesthesia Consultants required Petitioner to sign her name on any anesthesia record pertaining to a case in which she was involved. When Petitioner was required, due to the needs of a particular patient, to work in excess of her scheduled time, she was entitled, from Barry University, to "comp time," which means only that she could receive credit for the additional time worked when setting a subsequent schedule. However, apart from a grant from Barry University as part of her financial-aid package, Petitioner never received any financial benefit from either respondent. In addition to the occasional stipend, which Petitioner does not appear to have received, Wolverine Anesthesia Consultants provided minor items, such as lunches for meetings of the interns, which Petitioner may not have attended, and $50 Christmas gift certificates to all interns, including Petitioner. In no way does the record support an interpretation of these minor acknowledgements or courtesies as compensation because Wolverine is under no obligation to provide them, no relationship exists between the recipient of the item and the amount of time worked, and no relationship exists between the value of the item or stipend and the amount of time worked by the student receiving the item or stipend. Although Barry University administers a comprehensive test to all candidates for a master's degree in anesthesiology, passage of which is required for a degree, Petitioner withdrew from the program prior to the administration of this test. She withdrew essentially due to reports from Wolverine to Barry University that she had failed to make adequate progress in the clinical program.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petitions of Petitioner in these two cases. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Andrea Bateman, Esquire 1999 West Colonial Drive Orlando, Florida 32804 Cecil Howard, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esq. Deborah L. La Fleur, Esq. GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801 John A. Walker, General Counsel Barry University Division of Legal Affairs and Human Resources LaVoie Hall, Office 209 11300 Northeast Second Avenue Miami Shores, Florida 33161
The Issue The issue is whether Respondent may rescind its approval of Petitioner's program to operate a practical-nurse education program.
Findings Of Fact For the past 13 years, Petitioner has operated an unaccredited education program for persons seeking licensure as practical nurses. During this period, Beverly Pryce has been the Program Director. Ms. Pryce is a registered nurse in Florida and has 27 years of clinical experience comprising 10 years as a licensed practical nurse and 17 years as a registered nurse. For the 2002-03 and 2003-04 school years, Petitioner has admitted 24 students annually from a pool of 35-40 applicants. Nineteen students graduated from the 2002-03 class, and 22 students graduated from the following year's class. In both years, Petitioner retained four faculty members--two full time and two part time. In both years, Petitioner had one faculty position vacant. In February 2003, Petitioner relocated its operations from a building in Hallandale to a building in Hollywood. Petitioner made this move without prior notification to, or consent from, Respondent. Ms. Pryce testified that, subsequent to the move, Petitioner communicated to Respondent, using Petitioner's new address, about several items, such as the names of upcoming graduates. These contacts do not represent a formal notification of a change of address, and Ms. Pryce conceded that she had not known of any requirement of notice prior to making such a move. Petitioner's formal notification of the change of address took place over one year after it had relocated its operations. The omission of prior notice denied Respondent the opportunity to inspect the proposed new facility, including classrooms, laboratories, computers, and library resources, to ensure that it met all applicable requirements for a school educating persons seeking licensure as licensed practice nurses. By letter dated May 10, 2004, Respondent advised Petitioner that the failure to notify Respondent of the change of address violated "64B-9." The notification issue arose when Respondent mailed a letter to Petitioner warning that its license would expire on June 30, 2004, and requesting a Program Evaluation Report by September 2, 2004. The postal service returned the letter as undeliverable because it was addressed to Petitioner's former address. After obtaining the new address, Respondent re-mailed the letter, on June 16, 2004, again requesting a Program Evaluation Report by September 2. Petitioner failed to provide Respondent with a Program Evaluation Report by the deadline set forth in the June 16 letter from Respondent. Thus, on September 21, 2004, Respondent sent another letter, advising Petitioner that Respondent would review Petitioner's approval status at its meeting on October 14, 2004. This letter notes that Respondent had not received any response to the request for a Program Evaluation Report, and Respondent would not accept additional documents for consideration at its October 14 meeting. Ms. Pryce claims that hurricane season and her unfamiliarity with computers delayed the timely delivery of the Program Evaluation Report, but these claims do not justify the length of time, past the deadline, before Ms. Pryce filed the report. Based on its consideration of the matter at the October meeting, Respondent issued, on November 2, 2004, an Order determining that Petitioner was not in compliance with Board rules due to the above-described relocation and failure to file a Program Evaluation Report. The Order notes that Petitioner's approval has expired and is not renewed until Petitioner timely files a Program Evaluation Report, undergoes a site visit by the Executive Director of the Board, and appears at the Board's December 2, 2004, meeting. Until then, the Order prohibits Respondent from admitting additional students, although it may continue to educate existing students, who will be eligible to take the licensure examination, upon graduation. The November 2 Order memorializes the decision of the Board--and agreed to by Ms. Pryce--to extend the deadline for filing the Program Evaluation Report to November 1, 2004. The Order requires the Program Evaluation Report to demonstrate compliance with Florida Administrative Code Rules 64B9-2.002(2) and (6) and Petitioner to demonstrate compliance with Florida Administrative Code Rule 64B9-2.015, during the site visit. On November 12, 2004--11 days after the extended deadline to which she had agreed--Ms. Pryce filed the Program Evaluation Report. Two days later, Respondent's Executive Director conducted a site visit. On his site visit, the Executive Director found that the passing rate of Petitioner's students, on the practice nursing licensure exam, for the 2002-03 school year was 63.2 percent, while the national and Florida averages were 86.5 percent, and the passing rate of Petitioner's students for the 2003-04 school year was 59.1 percent, while the national average was 88.7 percent and the Florida average was 83.6 percent. Since at least 1997, the passing rate of Petitioner's students has been at least 10 percent below the national average passing rate. The Executive Director also issued a report, dated November 17, 2004, setting forth various recommendations to the Board for consideration to improve the quality of Petitioner's program. At Ms. Pryce's request, the Board continued consideration of Petitioner's case from the December meeting to the February meeting. The December 7, 2004, letter continuing the matter also warns Petitioner to provide to Respondent any additional materials that Petitioner wants the Board to consider prior to January 3, 2005. At the February, 10, 2005, meeting, the Board asked Ms. Pryce if she had yet obtained a consultant's report with specific recommendations to improve the quality of Petitioner's nurse-education program. Ms. Pryce responded that she had a consultant in mind, but had not retained anyone yet. On February 16, 2005, Respondent issued a second Order. The Order outlines the above-stated facts and revokes Petitioner's approval, effective June 30, 2005, but allows currently enrolled students to complete the program by June 30, 2005. On March 6, 2005, a consultant issued a detailed report, recommending that Petitioner raise its admission standards and provide tutoring for students, form an advisory committee for curriculum, and increase faculty involvement and raise faculty standards.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order rescinding Petitioner's approval to operate a nurse-education program. DONE AND ENTERED this 21st day of November, 2005, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 21st day of November, 2005. COPIES FURNISHED: Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Mark J. Berkowitz Mark J. Berkowitz, P. A. 524 South Andrews Avenue, Suite 200N Fort Lauderdale, Florida 33301 Lee Ann Gustafson Assistant Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Department is the state agency charged with the responsibility of regulating the profession of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times material to this case, Respondent has been licensed by the Department, license nos. RN 1672492 and 167249A. Respondent holds dual licensure since he is listed as a registered nurse (RN) and an advanced practice RN with specialty (ARNP). In Respondent's case, the advanced specialty practice is in the area of anesthesia. To become licensed as an ARNP, Respondent submitted an application, a fee, and copies of a certification from the Council on Recertification of Nurse Anesthetists (CRNA) which included an identification card specifying Respondent's CRNA number to be 24936. Respondent represented, under oath, that the copies were true and correct duplicates of the originals. Based upon this documentation, the Department issued the ARNP license. On or about March 25, 1986, Respondent was employed by the Hialeah Anesthesia Group (HAG). Respondent's supervisor was Manuel B. Torres, M. D., president of HAG. On or about November 30, 1987, Dr. Torres notified Respondent that his employment and privileges at Hialeah Hospital were being suspended. According to Dr. Torres, this suspension was to continue until confirmation was given by the Impaired Nurse Program at South Miami Hospital that Respondent's problem had been corrected. At the same time, Dr. Torres notified the CRNA that Respondent had voluntarily entered an impaired nurse program. Subsequently, Dr. Torres received a letter from Susan Caulk, staff secretary for CRNA, which notified him that, according to CRNA files, Respondent had not passed the certification examination, was not a member of the American Association of Nurse Anesthetists, and that Respondent's CRNA recertification number was not valid. Dr. Torres then notified the Department regarding the certification issue. Later, after Respondent had completed a controlled substance addiction program at Mount Sinai Medical Center, Dr. Torres advised him that, if he could prove his CRNA certification, he could be rehired at Hialeah Hospital. Respondent never returned to demonstrate his certification. An individual who represents himself to be certified as an ARNP when he has not qualified to be so certified has exhibited conduct which falls below the standard of care of the nursing practice. Further, such an individual, by practicing as an advanced practitioner without the educational background, compromises the safety of patient care.
