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
Findings Of Fact The Respondent, Betty Jean Dempsey Hatton, L. P. N., holds License No. 29095-1. She was employed as a licensed practical nurse at Riverside Convalescent Center in Jacksonville, Florida, during the month of January, 1979. An Administrative Complaint was issued against Respondent Hatton on April 20, 1979, alleging that she was guilty of unprofessional conduct. The Respondent requested an administrative hearing. On or about January 27, 1979, Respondent Hatton had become unhappy with her work at the convalescent center and had decided to resign. She was requested to work 11:00 o'clock p.m. to 7:00 o'clock a.m. shift beginning the night of January 27, 1979. The Respondent agreed to work that shift, although she informed Eleanor L. Hennessey, the evening supervisor, that she intended to resign. The Respondent had not submitted a written resignation at that time. Ms. Hennessey finished her work at 11:00 o'clock p.m. and expected the Respondent to begin work at that time pursuant to her work schedule and pursuant to her agreement. The Respondent did in fact report to work at the convalescent center as agreed on the night of January 27, 1979. Fiona M. Morris, R. N., the Director of Nursing at Riverside Convalescent Center, was notified by Ms. Hennessey that Respondent Hatton had quit work, but Ms. Morris did not receive either an oral or a written resignation from the Respondent. Introduced into evidence was a copy of an official time and signature sheet for the month of January, 1979, for the employee, Respondent Hatton. The Respondent signed in for work on the night of January 27, 1979, at 10:45 o'clock p.m. and signed out at 4:00 o'clock a.m. January 28, 1979. The Respondent had previously agreed by conversation with Ms. Hennessey that evening to work the 11:00 p.m. to 7:00 a.m. shift for which she had been employed and from which she had not resigned. Respondent Hatton in fact did not work all of said shift, leaving some three (3) hours early. She left without informing her supervisor, Ms. Hennessey, and left her floor unattended. In mitigation of leaving her night shift early, Respondent Hatton contended that she told someone on the floor she was leaving, and that she had injured herself the day before and was suffering pain from her back. The Respondent also said she had informed several people that she was resigning as of January 27, 1979. Neither party submitted proposed findings of fact, memoranda of law or proposed recommended orders.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner Board reprimand the Respondent, Betty Jean Dempsey Hatton. DONE and ORDERED this 16th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Betty Jean Dempsey Hatton 8201 Styers Court Jacksonville, Florida 32221 Geraldine B. Johnson, R. N. Board of Nursing Ill Coastline Drive East, Suite 504 Jacksonville, Florida 32202
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, Carolyn A. Keegan, is a licensed Practical nurse in the State of Maine and has been since October 10, 1947, when that State first began licensing nurses. Petitioner attended the Eastern Maine General School of Nursing between September, 1940, and June, 1942, but did not graduate. She has been employed as a nurse since that time. When the State of Maine began licensing nurses in 1947, Petitioner was grandfathered in as a licensed practical nurse without being required to take an examination or graduating from an accredited nursing program. On June 12, 1980, Petitioner applied for licensure as a licensed practical nurse in the State of Florida by endorsement. This application was denied by the Board of Nursing on July 11, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carolyn A. Keegan for licensure as a licensed practical nurse be denied. It is further RECOMMENDED that Petitioner be permitted to take the appropriate examination at the earliest practicable time. DONE and ENTERED this 8th day of January 8, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Carolyn A. Keegan 11839-108th Avenue, North Largo, Florida 33540 Linda A. Lawson, Esquire Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the matter in issue herein, the Respondent, University of South Florida, (University), was an entity of the State of Florida located in Tampa, and operated, among other services, a Student Health Services at which physicians and nurses were employed to provide health services to members of the student body. The Petitioner, Olympia Malone, was hired by the University as a registered nurse at the Student Health Service in January, 1986. At the time of her hiring, Ms. Malone had 3 years of college. She had received an Associate Degree from Hillsborough Community College, was licensed by the State of Florida as a registered nurse, and had been employed as such at St. Jospeh Hospital for 12 years. Over the years of her employment with the University, Ms. Malone received several performance evaluations which covered the period from July 25, 1986 through January 23, 1990. Prior to receipt of the last report on January 26, 1990, she received a commendation letter in May, 1989 from Ms. Sharon A. Berry, her immediate supervisor, and had been asked to transfer over to the physician area. Petitioner claims to have been told there was some problem in getting nurses to work in that area and she was asked to go there to get it organized. She was told she had the skills needed at the new section. She agreed to do this because she enjoyed it and saw it as a chance to keep her nursing skills up since the work related to direct patient care. While there she learned new skills and made suggestions for some of which she was commended. However, when she asked for a raise she was told by Ms. Allen, the Director of Nursing Services, that she had been transferred there because of personality conflicts. When a nursing supervisor position came open in the Student Health Service in 1989, Ms. Malone applied for it but the promotion was given to Ms. Hansen, another nurse, whom Petitioner feels was less qualified then she. Malone filed a grievance about this failure to select her for promotion but subsequently withdrew it because she felt she could not win and to carry it forward would polarize the work section. Ms. Allen selected Ms. Hansen for the position of supervisor because she felt, from the records, Hansen was best qualified. Though Ms. Malone indicates she has had supervisory experience as preceptor for licensed practical nurses, nursing assistants and students at St. Joseph Hospital, her application makes no reference to any supervisory experience as did Ms. Hansen's. Ms. Allen's selection was based on who had the most supervisory experience. She went strictly by what was on the applications. At no time prior to the rendering of the appraisal on January 26, 1990 was Ms. Malone given any indication there was any concern about her performance, nor was she counselled. Unknown to her, however, there were several memoranda concerning her performance, dating back to 1988 and 1989, which were being kept in a private file maintained by Ms. Allen. These memoranda, which were not being kept in Ms. Malone's official personnel record with the University, made repeated reference to personality conflicts involving her and other employees which were, apparently, causing some concern to the staff. An Addendum to Annual Performance Review relating to Ms. Malone, dated January 28, 1991 and covering the period from January 24, 1990 to January 23, 1991, refers to a counselling session with her conducted on January 24, 1991, one day after the expiration of the reporting period. At this session, Ms. Malone's non-written evaluation was discussed but she disagreed with it and left the meeting before the discussion could be completed. The use of a non-written evaluation was, at that time, a new, informal, fluid procedure whereby the rater, using the old rating form, discussed with the ratee that individual's strengths and weaknesses. The supervisor had the option of using the old formal form or the new discussion/memorandum format. Once the discussion was completed, the employee had the right to request a memorandum of the evaluation. In this case, the process did not get that far since Ms. Malone got upset and departed the room before it was completed. It is this evaluation which she now considers to be racial discrimination and retaliation for her prior grievance which forms the basis for this hearing. Ms. Malone objected to the use of this new procedure because she felt it did not require the supervisor to identify specifics. In December, 1990, she had requested of Dr. Anderson, the Director of the Student Health Service, that (1) she get an evaluation by an impartial rater, and (2) her evaluation be in writing. In response, Dr. Anderson advised Ms. Malone that her immediate supervisor, Ms. Hansen, had to render the evaluation and that she would be given "something in writing." About a year before this latter evaluation, Ms. Malone, in January, 1990, received a written evaluation by Ms. Hansen which, though it reflected she achieved standards in every category, also reflected she had experienced some difficulty in working with others and with carrying out assigned additional responsibilities. On February 2, 1990, Ms. Malone filed a grievance because of that evaluation and in August, 1990, her supervisors and Mr. Carrington, the University's Assistant Personnel Director, met with her to discuss the areas of insubordination alleged by Ms. Hansen. Ms. Malone was told this meeting was not a counselling session. When she asked for permission to gather information on her own time to refute the allegations, it was granted and the information was thereafter sent to Mr. Carrington and Dr. Anderson, but she got no response. Ms. Malone's attorney filed a complaint about this with the EEO office in the summer of 1990. This grievance got lost and was not responded to. Also that summer, Ms. Malone filed a grievance with the campus employment office based on what she felt was a negative performance appraisal. This matter was referred to an arbitration committee made up of two Black and one White member which determined that no evidence of discrimination or retaliation was indicated. In January, 1991, she then got the counselling session on which she walked out. Several days later, the written addendum, which she considered to be much worse than the original evaluation, was prepared. In March, 1991, Ms. Malone, who is African American, filed the current EEO complaint but did not get a response for "quite a while." She claims that during all this time she was treated differently from the White nurses and harassed with acts of reprisal. For example, Dr. Kali Derasari called her to her office and told her to pull an appointment for a patient to refer to a nurse practitioner. When she advised the doctor of the requirements for record keeping, the doctor disagreed so she did what was asked of her. As a result, the nurse practitioner complained to Ms. Hansen who counselled Petitioner for not following proper procedure. When the doctor, at Ms. Malone's request, backed her up, she was still reprimanded. On another occasion, according to Petitioner, she applied for leave two weeks in advance to attend a work shop she wanted and agreed to use annual leave, if necessary. She got approval from Ms. Hansen for administrative leave on March 27, 1991, 4 days later. She went to the workshop as approved, but 3 weeks later, was called in by Ms. Hansen, told she should not have had administrative leave for a workshop, and directed to change her time sheet which had already been approved. When Ms. Malone called someone at the Personnel office about it, she was told that office had not suggested the change - that her supervisor could approve administrative leave. When she told Ms. Hansen that, it was then agreed she could leave it as it was. There were numerous unspecified other instances of harassment claimed by Petitioner. She recalls one occasion where Ms. Hansen physically provoked her by leaning over her and coming up close to her face, criticizing her about her work. This was ultimately made a part of her record. In addition, Ms. Malone is the only Black nurse in the section. The other nurse there is a White licensed practical nurse, yet Ms. Malone claims she has been instructed not to refer to herself as a registered nurse. She feels this deprecates her position in an attempt to curry favor with the White nurse who is of a lower professional status. She also cites several occasions where she felt information she needed to do her job was kept from her though others were advised. When she reported all this to Ms. Allen, Ms. Hansen's supervisor, she got no response. However, she claims, whenever anyone complained about her, she was called in and counselled. She admits that management could have called and counselled those about whom she complained without her knowing about it. Ms. Malone also appears to disregard the fact that Ms. Allen, the overall supervisor, is Black. In 1987 and 1988, Ms. Malone's supervisor was Sharon Berry. According to Ms. Allen, there was some mutual complaining between the two of them At first Ms. Allen was very protective of Petitioner because she had hired her and wanted her to succeed. However, when Petitioner did not improve as expected, Ms. Allen's attitude changed and when she had an altercation with Ms. Malone about where Malone's car was parked, she began to believe that maybe Malone had some problem with personal relationships. Contrary to what Ms. Malone related, the transfer into the physician's section in 1989 was the result of problems Ms. Malone was having with her supervisors and after the move, she appeared to be doing better. Ms. Malone was given the opportunity, along with other nurses, to work in other areas to get more experience, but she declined the opportunity unless she got more money. Ms. Berry was Petitioner's immediate supervisor just after she was hired and initially they got along well. When problems first began to arise, she went to Ms. Allen who advised her to show Petitioner more understanding. This is consistent with Allen's testimony regarding her initial efforts to protect Petitioner. Nonetheless, Petitioner's performance, monitored on a continuing basis, was "fine." She was a good nurse. Gradually, however, Petitioner's relationships with Ms. Berry and the other nurses began to deteriorate and her lateness began to be a problem. Ms. Berry supervised Petitioner until she transferred to the physician's area. Toward the end of their relationship, Berry claims, Petitioner became remote and withdrawn from other staff, indicating they were "5 faced" and "barracudas." Things got so bad between Berry and Petitioner that Petitioner would not speak to her unless spoken to and then would not make eye contact. Ms. Hansen has been Petitioner's supervisor in the physician's area since 1989. Two of the 3 individuals she supervises are Black. She evaluates Petitioner's performance formally once a year and informally on a continuing, routine basis. She has found that Petitioner works without supervision most of the time. This is all right. However, at times Petitioner does not come to her as a resource person but goes to someone outside the section for answers to job questions and this is not all right. She has observed that Petitioner often has some difficulty in her relationships with others. When it became clear Petitioner was having difficulty with another person in the section, Hansen investigated and initiated a new procedure. A part of the problem was Petitioner's attitude and often, even when she was technically correct, her abusive and abrasive approach to others diminished her effectiveness. She has had to reprimand Petitioner in the past. When Ms. Hansen called Petitioner in for the January, 1991 evaluation, she showed Petitioner what she intended to say and Petitioner got angry and left. The matters which would have been discussed with Petitioner had she not walked out, were subsequently formalized. When Ms. Malone complained to Ms. Allen she was told she was too loud, and that she acted like Whites expected her to act. Allen also reportedly alleged that Malone was hostile to her. Ms. Malone admits to being loud and believes her loud voice can cause people to think she is hostile. Nonetheless, Ms. Malone claims that because of all the above listed perceived discrimination and retaliation, she has developed unspecified physical and mental aliments and is taking medication for both even though in the last few months the pressure has let up somewhat. When she notified management of this, she was referred to the Employee Assistance Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing Olympia Malone's Petition for Relief from the unlawful employment practices of both racial discrimination and retaliation filed against the University of South Florida. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3914 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. COPIES FURNISHED: George Clark, III, Esquire 610 Horatio Street Tampa, Florida 33606 Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250 Tampa, Florida 33620-6250 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-4149
The Issue Whether Lazaro Saavedra is eligible for licensure by endorsement as a registered nurse in Florida, as provided in Chapter 464, Florida Statutes, and Chapter 210, Florida Administrative Code?
Findings Of Fact Petitioner, Lazaro Saavedra, received his education in Cuba (Tr. 109). There is evidence that he attended medical school for a period of four to five years beginning in 1960 (Tr. 109, 110, 119; JX-4), but he did not complete his medical education (Tr. 109). Petitioner asserts that he attended nursing school in Cuba from 1959 to 1962 (Tr. 108), and was licensed to practice nursing in Cuba (Tr. 118-119, 125). The record in this cause is devoid of any documentation of Petitioner's nursing education. While a witness apparently had a paper that may have been some sort of copy of Petitioner's nursing degree, it was neither identified for the record or offered into evidence (Tr. 85, ln. 11-15; 86, ln. 2-6). Petitioner attempted to prove his nursing education by his own testimony, but he was unable to describe well the content of his nursing program (Tr. 124, ln. 24-25, 125). He was unclear and imprecise regarding the dates of his nursing education and its overlap with his medical education (Tr. 109, 110, 124). The only testimony Petitioner offered to prove his attendance in nursing school, other than his own, was that of Bruno Barreiro. Mr. Barreiro knew Petitioner to be a nursing student (Tr. 91). He later saw Petitioner on "rounds" at a hospital (Tr. 92), but stated that medical students and nursing students took rounds together (Tr. 99). The witness expressed no knowledge of Petitioner as a graduate or as a practicing licensed nurse (Tr. 91, 98). Petitioner attempted to prove his nursing education and licensure in Cuba by the testimony of witnesses who "knew him as a nurse" in Cuba. Alicia de la Rua is a Florida licensed nurse who worked in the same hospital as Petitioner in Cuba for three months in 1964 (Tr. 55, 56, 59). They did not work together (Tr. 59), but were on the same ward in separate men's and women's sections (Tr. 61). Ms. de la Rua never saw Petitioner's nursing diploma or license (Tr. 60) and has no personal knowledge that he attended nursing school in Cuba (Tr. 61). She did see him dressed as a nurse and acting as a nurse in the principal hospital in Matanzas, Cuba (Tr. 55, 61-62). Francisca Garcia is licensed as a nurse in Florida. She met Petitioner in 1965 or 1966 in the clinic Petitioner's father and brother, who were medical doctors, operated in Havana (Tr. 69, 91, 118-119). Petitioner treated Ms. Garcia's nephew by giving him a vaccination (Tr. 70). In Cuba that treatment could have been performed by someone with a medical education or even a nurse's aide (Tr. 70). Although Ms. Garcia states that she saw Petitioner's diploma or license at the clinic (Tr. 65, ln. 9-15), no such document has been offered in this proceeding, and her testimony about the diploma is not persuasive due to Petitioner's failure to offer any copy of the degree for admission into evidence, although a copy was apparently available at the hearing. See Finding of Fact 2, above. Petitioner first sought licensure in Florida in 1977 (JX-4). The basis for that application was his incomplete medical education, and the application was denied (Tr. 111, 117). On that application, Petitioner did not indicate any nursing education, either under "Official Name of Nursing Program" (JX-4, ln. 8) or under a question regarding receipt of nursing education in another country (JX-4, ln. 10). The latter question was left blank; all other questions on the application were answered (JX- 4), including that Petitioner had not written a nursing licensing examination before. Petitioner again applied for licensure by examination in 1981 (JX-5). On the 1981 application, Petitioner did refer to his nursing education, but in vague terms, giving the Official Name of Nursing Program as "Registered Nurse" (JX-5, ln. 8). This application also contains the false statement that Petitioner had never before made application for licensure in Florida (JX-5, ln. 9), and the statement that he had not written a nursing licensing examination before. Petitioner applied for licensure a third time, this time by endorsement rather than by examination, in an application received by the Board on May 18, 1984 (JX-3). This application contains several false statements or omissions. Petitioner again failed to advise the Board of his previous applications (JX-I, section 4E). Petitioner stated that he had never held a license to practice nursing in another country (JX-3, section 4F). Petitioner again stated that he had never written a nursing licensure examination in Florida or any other state or country (JX-3, section 6A). Petitioner made a further false answer to the question "Have you ever been denied a license to practice nursing in Florida . . .?" (JX-3, section 6D). Truthful answers to these questions are necessary so that the Board and its staff may review sufficiently and evaluate an application, taking into consideration any previous Board actions (Tr. 146, 147). To prove eligibility for licensure by endorsement, an applicant who was educated and licensed in Cuba before a prescribed date must demonstrate that licensure by means of official documents (Tr. 140). If original documents are unavailable, as is often the case with Cuban nurses (Tr. 98), the Board requires some other competent, substantial proof, including affidavits of other nurses or doctors licensed both in Cuba and in Florida (Tr. 140, 149). Those affidavits must be consistent with other information received by the Board concerning the applicant's qualifications (Tr. 149). The Board amended its rules by emergency rule effective May 18, 1984 (RX-1), to provide that nurses licensed in Cuba prior to December 31, 1961, would be eligible for licensure by endorsement upon successful completion of a refresher course (Tr. 142, 143). Although Petitioner purportedly graduated from nursing school after that date, the Board reconsidered his application because he had been approved to begin and had completed the refresher course at Miami-Dade Community College before the effective date of the emergency rule (Tr. 144, 145). Petitioner completed the variable time nursing refresher program at Miami-Dade (Tr. 46; JX-2), which was a 16- week course designed for people who had never taken a licensing examination (Tr. 45, ln. 9-14). This program contained no clinical component or direct patient care (Tr. 46, 47). According to the dean of the Miami-Dade program, Dr. Jeanne Stark, who also developed the program (Tr. 46, 47), an individual with a medical background but who had not had a nursing education could successfully attend and complete the 16-week variable time refresher program (Tr. 47-50). Petitioner was approved to take the refresher course by the Board (Tr. 51), prior to his 1984 application, on the basis of affidavits provided by the Cuban Nurses in Exile Association that he was licensed in Cuba (Tr. 141, 142). Those affidavits are no longer relied on by the Board as proof of licensure because of inconsistencies and inaccuracies in them (Tr. 141, 144).
Recommendation Based on the foregoing, it is recommended that the Board of Nursing enter a final order DENYING the application of Lazaro Saavedra for licensure by endorsement. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986.
The Issue The issue in this case is whether Respondent is guilty of violating Rule 59S-8.005(1)(e)2, Florida Administrative Code, for administering medications or treatments in a negligent manner and subject to discipline for unprofessional conduct under Section 464.018(1)(h), Florida Statutes. If so, another issue is what penalty should be imposed.
Findings Of Fact In June 1994 Respondent was licensed as a registered nurse, holding license number RN 2740932. Respondent had been licensed as a registered nurse since 1993 and as a licensed practical nurse since 1987. Respondent's license as a registered nurse became inactive June 21, 1995 after she failed to renew it. In the fall of 1993 East Pointe Hospital hired Respondent as a charge nurse in the transitional care unit, which had recently been started. Although Respondent had only recently become licensed as a registered nurse, the hospital hired her based partly on her current licensing and partly on her previous experience as a licensed practical nurse and respiratory therapist. During the weekend of June 24-26, 1994 Respondent worked the 7:00 pm to 7:00 am shift. As a charge nurse Respondent supervised several other nurses, typically licensed practical nurses. The charge nurse and nurses whom the charge nurse supervised sometimes divided up the patients in the unit, but the charge nurse retained supervisory authority over the other nurses and always remained directly responsible for patients with more complex problems. Patient C. P. had recently been transferred to the transitional care unit from the acute care unit. On the evenings in question, C.P. was among the patients for whom Respondent was directly responsible. Several IVs were being administered the evening of June 24 and early morning of June 25. One patient was having problems with an IV pump and his veins. Respondent asked another nurse, who was under Respondent's supervision, to do the accuchecks on the other patients, including C. P. Accuchecks are finger stick glucose monitors. As was the case with C. P., physicians typically order accuchecks every six hours for patients receiving their total nutrition intravenously. The purpose of the accucheck is to ensure that the patient receiving all his nutrition intravenously does not develop low or high blood sugar, which could have very serious implications. The other nurse failed to perform the accuchecks for midnight at the start of June 25 and 6:00 am on June 25. Respondent failed to follow up to ensure that they were done. Respondent's failure to perform the required accuchecks or to check to make sure that the other nurse performed them constitutes the negligent treatment of a patient. A physician had also ordered that C. P. receive antibiotics intravenously every eight hours, at about 6:00 am, 2:00 pm, and 10:00 pm. Petitioner alleges that Respondent failed to administer two consecutive doses. However, nothing in the nurses' notes documents what would have been a material omission, and no one on the nursing staff bothered to contact the physician who had ordered the antibiotics. There is also a reasonable possibility that IV bags bearing dates and times were mixed up so as to preclude a determination of which registered nurse failed to administer IV medication, if in fact two doses of antibiotics were missed. Respondent later admitted not performing the accuchecks, but never admitted failing to administer the IV antibiotics. Petitioner has failed to prove that Respondent failed to administer the IV medications as ordered. The hospital terminated Respondent's employment shortly after the incidents involving C. P. Respondent has since held two temporary nursing jobs and has applied unsuccessfully for 12 other nursing jobs. She now lives with her mother in Virginia where she earns $100-$200 weekly in employment unrelated to nursing. C. P. suffered no injury as a result of the failure to conduct ordered accuchecks and the failure, if any, to administer the prescribed IV. Respondent has not previously been disciplined as a licensed practical nurse or registered nurse.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Rule 59S-8.005(1)(e), Florida Administrative Code, and Section 464.018(1)(h), Florida Statutes, for her failure to perform two accuchecks or make sure that another nurse had performed them and issuing a reprimand to Respondent. ENTERED on December 21, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 21st day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as irrelevant. 6-12 (first sentence): adopted or adopted in substance. 12 (second sentence): rejected as subordinate and irrelevant. 13-15: rejected as subordinate. 16: rejected as subordinate and irrelevant. 17-18: adopted or adopted in substance. 19-21: rejected as subordinate and recitation of testimony. 22-23: rejected as irrelevant and subordinate. 24: rejected as subordinate. 25: rejected as subordinate and irrelevant. 26-28: adopted or adopted in substance. 29: rejected as irrelevant. Rulings on Respondent's Proposed Findings 1-3 (first sentence): adopted or adopted in substance. 3 (first sentence)-4: rejected as subordinate and irrelevant. 5-6: adopted or adopted in substance, although not as to the identify of the other nurse. 7: adopted or adopted in substance, except that the failure either to perform the accuchecks or ensure that the other nurse did is negligence. 8-14: rejected as subordinate. 15-18: adopted or adopted in substance. COPIES FURNISHED: Laura P. Gaffney, Senior Attorney Agency for Health Care Administration General Counsel's Office Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Robert E. Tardif, Jr. Duncan & Tardif, P.A. P.O. Drawer 249 Ft. Myers, FL 33902 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, FL 32202
The Issue The issue in this case is whether Petitioner’s application for licensure as a registered nurse should be granted.
Findings Of Fact On or about December 6, 1988, Ms. Melegrito was convicted of two counts of fraud in violation of 42 U.S.C. Section 1395 and 18 U.S.C. Section 1341 in the United States District Court for the Western District of Virginia. On or about January 6, 1989, Ms. Melegrito was convicted of four counts of Medicaid fraud in violation of Sections 32.1-314 and 18.2-95 of the Code of Virginia. Both convictions involved the same set of facts. On or about August 3, 1989, the Florida Department of Professional Regulation and/or the Board filed an Administrative Complaint, Case No. 0107472 against Ms. Melegrito’s license as a registered nurse, charging a violation of Subsection 464.018(1)(c), Florida Statutes (1988), for the convictions set forth in paragraph one above. On or about October 27, 1989, the Virginia Board of Nursing revoked Ms. Melegrito’s nursing license as a result of the convictions set forth in paragraph 1 above. On or about December 21, 1990, the Board filed its Final Order in Case No. 0107472, placing Ms. Melegrito’s license on probation for a term concurrent with the probation imposed by the federal court and requiring her to comply with the terms of her federal probation. On or about June 25, 1993, Ms. Melegrito’s license to practice nursing in New York was revoked. On or about July 19, 1994, the Florida Department of Business and Professional Regulation and/or the Board filed an Administrative Complaint against Ms. Melegrito’s license in Case No. 92-11440, alleging a violation of Subsection 464.018(1)(h), Florida Statutes (1994), for unprofessional conduct including a departure from or failure to conform to the minimal standards of acceptable nursing practice. On or about September 14, 1994, Ms. Melegrito was found guilty of violating federal probation and sentenced to four years in the custody of the Federal Bureau of Prisons. Ms. Melegrito failed to make restitution as required by the terms of her probation. On or about November 28, 1995, the Division of Administrative Hearings issued a Recommended Order in Case No. 92-11440, finding that Ms. Melegrito violated Subsection 464.018(1)(h), Florida Statutes, and recommending suspension for three years followed by three years of probation and a $1,000.00 fine. On or about April 30, 1996, the Board filed a Final Order in Case No. 92-11440, imposing suspension for three years followed by three years of probation and a $1,000.00 fine. On or about December 13, 1996, the Agency for Health Care Administration and/or the Board filed an Administrative Complaint, Case No. 95-00886, against Ms. Melegrito’s license, charging Ms. Melegrito with a violation of Subsection 464.018(1)(l), Florida Statutes, for violating the Final Order in Case No. 0107472 by violating the terms of the federal probation. On or about September 4, 1998, the Board filed a Final Order in Case No. 95-00886, revoking Ms. Melegrito’s license for seven years. If Ms. Melegrito desired to reapply for licensure at the end of her revocation period, she was required to demonstrate her safety to practice as well as proof of completing continuing education courses and paying a $250.00 fine and $251.12 in costs. On or about February 24, 1999, Ms. Melegrito was convicted of felony criminal mischief and trespass in the Eighteenth Judicial Circuit in Broward County, Florida. On or about August 18, 2000; July 27, 2001; and December 9, 2004, the Virginia Board of Nursing denied Ms. Melegrito’s petitions for reinstatement of her nursing license. The denial by the Virginia Board of Nursing in 2004 was based in part on Ms. Melegrito’s misrepresentations concerning her licensure status at two job interviews, engaging in the unlicensed practice of nursing in 2003, and misrepresentations on her application for reinstatement by failing to disclose her previous disciplinary history and criminal history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ms. Melegrito’s application for licensure as a registered nurse. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of March, 2008. COPIES FURNISHED: Gerald D. Siebens, Esquire Office of the Attorney General One Mack Center 501 East Kennedy Boulevard Tampa, Florida 33602 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Maria C. Melegrito 3137 Honeymoon Lane Holiday, Florida 34691 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
