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 issues to be resolved in this proceeding concern whether the Petitioner was discriminated against because of her race (African-American) in not being selected for promotions and whether she was not selected because of her handicap (back injury).
Findings Of Fact The Petitioner is a black female. At times pertinent hereto, she was employed by the State of Florida, Department of Health and Rehabilitative Services (now known as Department of Children and Family Services), at Florida State Hospital in Chattahoochee, Florida. She has a disability or handicap involving a back injury. She was first employed by the Respondent in July 1976, as a Registered Nurse II and initially supervised two or three wards. The Petitioner also worked for Apalachee Community Mental Health Service in Quincy as a Team Leader during 1977-1978. She was a part-time relief nursing supervisor at Tallahassee Memorial Hospital between 1978 and 1979. She became a Registered Nurse III in March 1978 at Florida State Hospital (FSH) and became a full-time nurse there in 1979. She supervised an entire unit after that time and worked in several different units of the Forensic/Corrections Department as a Senior Registered Nurse beginning in November 1982 and lasting until March 1987. Between March and December 1987, she served as a Senior Registered Nurse Supervisor until her current assignment. She has been employed since December 1987 as a Registered Nurse Specialist Coordinator and remained in that position until her resignation due to disability retirement on January 25, 1994. She has a good employment record, earning consistent above satisfactory or "exceeds" performance standards ratings during her career. The Petitioner earned her Bachelor of Science Degree in Nursing (BSN) from Florida A & M University in 1976. She has since earned 21 hours toward a Masters Degree and took continuing nursing education courses at a time when the continuing education course work was not yet required. She is licensed by the State of Florida as a Registered Nurse. Petitioner's Disability On August 25, 1992, the Petitioner suffered a job- related injury to her back. The Petitioner was absent from work for some months, apparently receiving worker's compensation during this time. On January 27, 1993, she was cleared to return to light duty work at the hospital by her treating physician. The Respondent provided her with an appropriate light duty job assignment at which she remained through the balance of her employment with FSH. On June 18, 1993, the Petitioner was determined to have reached maximum medical improvement by her treating physician. She was thereupon discharged from further medical care by Capital Health Plan. On July 26, 1993, she filed an application for 100 percent "line of duty" retirement from the Florida State Retirement System. The State Office of Worker's Compensation thereafter approved her application for "permanent total disability" worker's compensation benefits, effective June 16, 1993, resulting from the injuries suffered on August 25, 1992. The Petitioner was absent from employment from June 4, 1993 through January 27, 1994, inclusive, claiming 34 weeks of worker's compensation benefits for this time. Ultimately, and as part of her effort to obtain disability retirement, the Petitioner resigned from her employment with the Respondent on January 25, 1994. At the time of the Petitioner's resignation, the Department had an action pending to involuntarily terminate her from employment allegedly because of her inability to discharge her assigned job duties and responsibilities. Vacant Positions During the fall of 1992, a vacancy occurred in the position of Registered Nurse Supervisor, Forensic/Corrections at Florida State Hospital. This was in the facility known as the Corrections Mental Health Institute (CMHI). A career service system position description existed for this job which was developed by the State of Florida, Department of Administration. That position description required, among other things, that the incumbent hold a license as a registered nurse (RN) with the appropriate experience, education, licensure and nursing abilities. The position called for a minimum of 75 percent of the time expended in the job being involved with direct patient contact with forensic patients. The FSH advertised this position as position number 46392 in the HRS Job Bulletin. The application deadline was January 21, 1993. The minimum requirements for the job were licensure as an RN with three years of nursing experience. A bachelor's degree from an accredited college or university could substitute for one of the three years experience required. A bachelor's degree in nursing was not required for the job, however. For this and the other positions a "knowledge, skills and ability" instrument (KSA) was prepared, as required by applicable law, to provide for numbered items consisting of the knowledge, skills or competencies a person hired for each position would be expected to have. Position number 46392 included a KSA requirement of budget experience as being essential, since the position required the development, allocation and administration of that unit's nursing service budget. The job advertisement involving this position complied with existing HRS and FSH rules, policies and procedures. There was no evidence offered to show that it discriminated against any person as to race, national origin, or handicap and no person or class or persons was encouraged or discouraged from applying for the position. Neither employment with the Department nor FSH were prerequisites to application or acceptance of the position. Twenty-six applications were received for this position. The procedure for hiring a person in the state system and the FSH involves various tasks. First, the hiring authority must request the personnel office to fill the position. The hiring authority, from a class specification developed by the Department of Management Services (DMS), creates this specific position description which includes the specific duties of the position and the minimum qualifications established at DMS. The class specification contains generic KSAs and from the class specification and position description the hiring authority develops a KSA examination module. This module is created in three steps: (1) job analysis, where the position description is compared to the KSAs for choosing which KSAs will be searched- for when hiring the position; (2) development of a rating scale where the applicant's KSAs are compared against those developed for the position, to determine the applicant's relative qualifications; and (3) the development of KSA interview questions. According to the pertinent rule, KSAs must not reflect "easily learned" material or skills which can be rapidly learned on the job. The KSAs must also be job related. The scoring on the KSA application rankings form and on the interview questions, was 50 for a "superior level," 33 for "satisfactory level," and 17 for "acceptable level." The interview questions are the only ones which can be asked of applicants during the interview. The KSA examination module is transmitted to the personnel office, prior to the job being advertised. After the job announcement is disclosed, the applications are screened against the minimum qualifications for the position by the personnel office and those that are qualified are submitted to the hiring authority for screening against the developed KSAs for the position. This step is a paper review of the applications which is documented on the application review form filled out on each applicant. The application rankings are normally used to reduce the applicant pool to a smaller number, usually about five, who are then interviewed. The interview questions developed previously are asked of each interviewee, and their answers are rated against the 50-33-17 scale for their scores from each interviewer. The interview scores are aggregated, and the applicant with the highest interview score is selected for the job. A selection form is completed then which lists the top applicant, in the order of their scores, after the interview process. Each application for position 46392 was screened using the KSA instrument prepared in advanced, as required by applicable law, to determine which of the applicants was qualified for the job. The KSA criteria and the interview questions utilized were reviewed by the personnel office at FSH in advance of their use, to ensure compliance with HRS rules, regulations and policies, and EEOC guidelines. Points were then awarded to each of the applicants by the KSA examining committee. Applicant Z. Thompson, a white female nurse, was awarded a total of 233 points. The Petitioner, Jean Spear, was awarded a total of 165 points. Other black and white applicants ranked lower in point award amounts and some ranked higher, including black applicant Bethea, with 199 points. Based upon those scores, three applicants were selected to be interviewed for this position: Z. Thompson; D. Breeden, a white female Registered Nurse; and C. Bethea, an African-American female Registered Nurse. Applicants Thompson and Breeden had associate science degrees in nursing while applicant Bethea had a bachelor of science degree. The bachelor of science degree is a higher degree than an associate science degree and can offset a year of the experience requirement for this and the other positions. However, the bachelor of science degree does not automatically mean that the holder thereof has a higher level of qualification for the position when all the applicants' qualification attributes are weighed against the position requirements and considered together. The Petitioner was not selected for an interview for this position because she finished ninth in the overall KSA rankings for the position. The interview committee for this position consisted of three FSH employees: Joel Devolentine, the administrator in charge of the program; Alva Martin, the chief nursing consultant at FSH; and Harry Moody, Jr., an administrator at the Department of Corrections, Corrections Mental Health Institution (CMHI). Interviewers Devolentine and Martin are white and Mr. Moody is black. The interview were conducted on February 11, 1993. During the interview process, Mr. Devolentine asked the candidates questions which were prepared in advance. Each interviewed person was asked the same questions, in the same sequence. Each member of the interviewing committee scored the responses on forms provided using the scoring system designated and implemented for that purpose. Each member of the committee scored the interviewees independently and did not discuss the points awarded to those persons with the other members of the committee. Each made his or her entries on the interview form separate and apart from the other members of the interview committee, contemporaneously with the responses given by the applicants. Upon conclusion of the interviews, the score sheets were given to Mr. Devolentine by each member of the committee for tabulation. There is no evidence that points awarded were changed or modified in any way once they were awarded. The total numerical scores for each of the candidates interviewed, showed that Z. Thompson had the highest score. Black candidate C. Bethea had the next highest score, and white candidate D. Breeden had the lowest score. The preponderant evidence shows that the KSA's experience in budget issues and the KSA's requiring certification in behavior analysis were both directly related to the job in question and both KSA competencies or certifications were possessed by Z. Thompson and not by the other candidates interviewed nor by the Petitioner, who had not received enough qualification points for the position to be interviewed. Because she received the highest total number of points and met all the minimum requirements set forth in the position description in the HRS job bulletin, because she possessed more experience in budget issues and was certified in behavior analysis, Z. Thompson was selected to be awarded the job. The preponderant evidence shows that the hiring process as to this position was conducted in accordance with existing HRS and FSH rules, regulations, policies, and procedures. There was no persuasive evidence that any of the hiring and selection process was designed or used to favor one class of persons or one person over another by reason of race, ethnicity or handicap. Although there was testimony concerning comments made by various supervisory personnel at FSH to the effect that Z. Thompson should apply for this position or that it was intended in advance that she get this position, there was no persuasive evidence of such pre-selection of Z. Thompson by the hiring decision-maker. It is somewhat noteworthy that white interview committee member Alva Martin gave black candidate Bethea 380 points and white candidate Breeden 347 points, while black interview committee member Moody gave black candidate Bethea 448 points, and white and winning candidate Thompson 465 points. Committee member Devolentine gave winning candidate Thompson 516 points; next highest candidate D. Breedan, a white female, 482 points; and black candidate Bethea 448 points, the same number of points that black committee member Moody had given candidate Bethea. There is no definitive, persuasive evidence that race was a determining factor in the award of the job to candidate Thompson. There was no persuasive evidence as to this position that handicap was a factor in determining that the Petitioner did not get selected for an interview for the position nor selected for the position. Position number 34563 involved a vacancy occurring during 1992. The application deadline for the position was October 22, 1992. The minimum requirements for the job were licensure as a Registered Nurse and four years of nursing experience with one year of that experience requirement offset if a candidate had a bachelor's degree from an accredited college or university. The position description indicates that approximately 75% of the time expended in the job required direct patient conduct with forensic clients. This is the position known as Executive Nursing Director, Forensic/Corrections at Florida State Hospital. The position was advertised in the HRS Job Bulletin. The advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures, and no person, or class of persons, was either encouraged to apply or discouraged from applying as to race, handicap or other status. Thirteen applications were received, and the screening and interview process described above was employed once again in accordance with HRS rules, regulations, and policies and EEOC guidelines. The screening used the KSA instrument prepared in advance for the position, as required by applicable law to determine which applicants were qualified for the job. That resulted in points being awarded and twelve out of the thirteen applicants being interviewed for the position. The interview committee consisted of four FSH employees: Robert Alcorn, the administrator in charge of the program; Alva Martin, chief nursing consultant at FSH; Richard Taylor, a unit director in the Forensic Services at FSH; and R. W. Myers, an administrator in the Forensic Services. Alcorn and Myers are white males. Ms. Martin is a white female and Mr. Taylor is an African-American male. The interviews were conducted on November 23, 1992, with interviewer Robert Alcorn asking all questions of all candidates. The questions were prepared in advance and the interview process included the private and independent deliberation and evaluation by each committee member, conducted as described above. There is no evidence that any points awarded were changed or modified in any way once they were assigned by each committee member. Upon conclusion of the interview process, Mr. Alcorn recommended the following persons for the position of Executive Nursing Director, Forensic/Corrections, as being most qualified for the job, by order of preference: (1) G. Cook with 82.1 points; (2) Z. Thompson with 80.6 points; (3) B. Weems with 74.6 points; (4) L. McMullian with 64.1 points; and (5) J. Spear, the Petitioner, with 61.0 points. Candidate Gwen Cook met all of the requirements of the position description in the HRS Job Bulletin and had more experience in forensic and emergency nursing than did the Petitioner. She received the highest total points and was offered and accepted the job. The KSA at issue as to this position required hospital emergency room experience, including certification in advanced cardiac life support. The position was executive nursing director in a medical-surgical psychiatric ward. Therefore, it was relevant to require, in a KSA for the position, that applicants have extensive knowledge of emergency medical procedures including management of airway obstructions, intubation defibrillator operation, etc., as well as the certification for advanced cardiac life support. It was a legitimate KSA requirement to specify hospital emergency room type experience, which Gwen Cook had in better degree than the Petitioner. The Petitioner did have psychiatric emergency care experience which was relevant, but the higher level of emergency and advanced cardiac life support experience possessed by Gwen Cook coupled with her additional forensic experience justified her selection for the position. The Petitioner was certainly qualified for the position, but Ms. Cook was more qualified, and there is no showing that the point rankings referenced above were improperly arrived at in violation of any rules, policies or statutes. There was no persuasive evidence that they were arrived at to the Petitioner's detriment for reasons of racial preference, ethnicity, or improper discriminatory consideration of the Petitioner's handicap. It was not persuasively demonstrated by the evidence that the advanced cardiac life support certification was a certificate that could be earned in a very short period of time, and thus it was not shown that it was an invalid KSA criterion. In 1992, a vacancy occurred in position number 04877. The FSH advertised this position in the HRS Job Bulletin. It was the position of Registered Nursing Consultant. The position application deadline was July 1, 1992. The position description for this position, which had been developed by the Department of Administration, required that the incumbent have appropriate knowledge, experience, education, and abilities in nursing principles, especially in the area of infection control. The description called for approximately 75 percent of the time expended by the holder of this position to be in direct patient contact with forensic clients. The minimum requirements for the job were licensure as a registered nurse with four years of nursing experience. A bachelors degree from an accredited college or university could substitute for one of the four years of experience required. Specific experience in infection control and epidemeology was essential. The job advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures. Employment with the Department or with the Florida State Hospital was not a prerequisite to attainment of the position. Fourteen applications were received and each application was screened using the KSA instrument prepared in advance for that purpose, as required by law. This was used to determine which of the applicants were qualified for the job. Both the KSA criteria and the interview questions used were prepared and reviewed in advance of their use to ensure compliance with relevant law, in the manner delineated more particularly above. Points were awarded to the persons who applied for the job by the KSA examining committee in such a manner that the Petitioner received 232 points, with only applicant, Nora Howell, who received 300 points, being ranked higher. The Petitioner, was tied for second place in point awards with black applicant C. Bethea and applicant S. Harris. The remainder of the fourteen applicants all scored lower. Based upon those scores determined by the KSA examining committee, the six highest ranking applicants were selected to be interviewed for the position, including the Petitioner. The interview committee consisted of two FSH nursing professional employees: Kathy Wheeler, the administrator in charge of the program and Sue Calloway, a practicing registered nurse at FSH. The interviews were conducted on July 9, 1992. During the interview process, committee member Kathy Wheeler asked the candidates questions, which had been prepared in advance. Each person interviewed was asked the same questions by the designated interviewer, Ms. Wheeler. They were asked in the same sequence. Each member of the interviewing committee scored his or her responses to the questions on forms that had been provided using the scoring system designated and implemented for that purpose. There is no evidence that any member of the committee discussed the points he or she awarded to the interviewees with other members of the committee and no evidence that the entries on the interview forms were made other than separate and independently from each other member of the committee. There is no evidence that points awarded were changed or modified in any way once they were awarded. Upon conclusion of the interviews, all the scoring sheets were given to Ms. Wheeler for tabulation. The total numerical scoring for each of the applicants interviewed was: Nora Howell, 128.4 points; Jean Spear, 119.9 points; C. Bethea, 111.4 points; V. Ramsey, 122.9 points; J. Collins, 118.8 points; and S. Harris, 111.4 points. One of the KSAs applicable to this position called for the person to be hired to have significant expertise in the area of infection control and epidemiology for this nurse consultant position. While the Petitioner remonstrates that this is not a legitimate KSA requirement because it is not directed related to the job and is an area easily learned on the job, the preponderant evidence reveals that indeed, it is directly relevant to this position and it is of significant importance. It is not a field or area of expertise which can be rapidly learned after hiring. Thus, the preponderant evidence shows that this KSA item or criterion is a legitimate one. The preponderant evidence shows also that successful applicant Nora Howell possessed this expertise to a greater extent than did the Petitioner. Thus, although the Petitioner was well qualified for the job in most respects, the qualifications of Nora Howell in this area exceeded those of the Petitioners according to the preponderant, credible evidence. This justified her being awarded a higher level of points in the screening and interviewing process than the Petitioner. Since she met or exceeded all the other position criteria which had been duly and legally adopted, it was justifiable for her to be offered and to accept the position instead of the Petitioner on these qualification-related bases. The application, screening, and interview process and ranking and scoring of points followed the procedure delineated by statute and rules and described in more detail above. There is no credible evidence that the hiring decision as to this position was made for any reason motivated by racial discriminatory intent or discrimination because of any handicap of any applicant. There is no clear evidence that "pre- selection" occurred as the Petitioner contends, but even if Nora Howell had informally been pre-selected for this position, there is no credible evidence that it had anything to do with racial or handicap discrimination against the Petitioner. During the fall of 1992, Florida State Hospital advertised the position of Senior Registered Nurse Supervisor for the Forensic/Corrections Department, position number 09671, in the HRS Job Bulletin. The position application deadline was January 21, 1993. The minimum requirements for the job were licensure as a registered professional nurse and three years of nursing experience. Here again, a Bachelor's Degree from an accredited college or university could substitute for one of the three years experience required. Experience dealing with forensically-committed patients was essential. The evidence shows that the job advertisement complied in all respects with existing HRS and FSH rules, polices, and procedures. The advertisement did not discriminate against any person or group or class of persons on the basis of race, handicaps, or other reasons. No person, or class of persons, was either encouraged or discouraged from applying by the advertisement. Neither was employment with the Department nor the hospital a prerequisite. Twenty-four applications were received. Each application was screened using the KSA instrument prepared in advance for that purpose by the procedure delineated above. In the KSA screening or examining process, applicant Patricia Powell scored 266 points; William Dixon scored 250 points; and Jean Spear, the Petitioner, scored 249 points. Applicant Zilla Thompson scored 323 points, S. Peoples scored 232 points, and Betty Thames scored 233 points. These six top point winners in the KSA examining process were selected to be interviewed by the interview committee. The interview committee consisted of five employees: Steve Lacy, an administrator in charge of the program; Gwen Cook, a practicing Registered Nurse in the forensic services at FSH; Judy Wester, a direct care supervisor in forensic; Alva Martin, the chief nursing consultant at FSH; and Willie McLeroy, a forensic direct care supervisor at FSH. The interviews were conducted on February 1, 1993. During the interview process, interview committee member Alva Martin was designated to ask the candidates questions which were written, prepared, and approved in advance under the process already delineated above. Each person interviewed was asked the same questions by the same interviewer in the same sequence. Scoring was done independently by each member of the interview committee and the scores submitted to Steve Lacy of the committee for tabulation. There was no evidence that points awarded were changed or modified in any way once they were awarded by each member of the committee. Applicant Dixon was awarded 3127 points and Petitioner Spear was awarded 2276 points. That made the Petitioner rank fifth from the top point earner, Mr. Dixon. Mr. Dixon met all the minimum requirements set forth in the position description in the HRS Job Bulletin for the position. Mr. Dixon had more forensic nursing experience overall than did the Petitioner, having ten years versus the Petitioner's five years. The Petitioner offered no preponderant, persuasive evidence that the hiring decision for this job or for the other three jobs was racially motivated. The Respondent's position in response to the Petitioner's attempted prima facia showing of racial discrimination, to the effect that she is black and that the successful job applicants were all white, is that, in fact, the Respondent hired the persons it believed were most qualified for the job. In fact, the proof shows that as to three of the positions, already treated herein, the winning applicants were indeed the most qualified for the job. The proof shows that the Petitioner was most qualified for the job currently being discussed in the paragraphs next above, that is, position number 09671. Her denial of hiring for that position, however, was not shown to be due to any racially discriminatory intent given the proof culminating in the above findings concerning how the selection process operated in accordance with the rules and policies of the agency. The preponderant, persuasive evidence shows that the Petitioner was actually better qualified than Mr. Dixon, the nurse who was awarded the position. The expert testimony of Dr. Frank, corroborated by the testimony of witness Betty Thames, in particular, shows that the Petitioner was better qualified for this supervisory position number 09671 because of her more extensive educational and work-experience qualifications. She had more varied experience in the nursing profession in areas that were related to this job than Mr. Dixon had, in spite of his longer experience in the forensic department. The Petitioner was shown to have a superior ability in the area of implementing medications and psychiatric nursing treatment procedures because the Petitioner had demonstrated this ability in a broad variety of settings, with different kinds of patients, coupled with her three and three-quarter years of forensic supervisory experience. She is also superior in her skills and expertise regarding working as a contributing member of a multi-disciplinary team, functioning as a team leader and with consulting with families. She also has more experience as a liaison nursing person with jails and community health-related facilities or resources. Additionally, for position number 09671, KSA number one for that position indicated a desire for experience in a tardive dyskinesia clinic. Only Mr. Dixon had this experience of all the applicants for this position, so the Petitioner was not given credit for it in the screening and interview process. In fact, she had many of the same general skills and abilities. The specific emphasis on tardive dyskinesia experience was shown, however, through the testimony of Dr. Frank, as being unnecessary to this type of supervisory position. More importantly, in the interview for this Senior Registered Nurse Supervisor position (09671), there was a written interview question asked the Petitioner concerning her disability. That question was as follows: "6. Do you have any disabilities that would prevent you from lifting or working a 40-hour week or that would prevent you from performing this job? How many days have you missed in the past year due to illness? How many unscheduled absences did you have in the past year? Do you have any responsibilities commitments or activities that would prevent you from doubling on or changing your work days or weekends?" Witness Betty Thames for the Petitioner also stated that during the course of a telephone interview in which the interview committee chairman, Steve Lacy, questioned her, as the Petitioner's supervisor, concerning her attendance that he made a "nonprofessional remark" (in a negative vein) regarding the Petitioner's physical limitations to the effect that "It doesn't matter why she was out to me". This was related to a discussion between the two in the telephone interview concerning the Petitioner's work attendance history and her back injury. Lacy's statement was admitted into evidence as a "party admission exception" to the hearsay rule. He was clearly an agent of the Respondent and a key person in this hiring process. The Respondent was aware of the Petitioner's disability. She had injured her back on the job in August of 1992. She had been off work receiving worker's compensation benefits for the injury and, based upon her doctor's finding that she had reached maximum medical improvement, had been returned to work, apparently in early 1993, and given light duty involving work not requiring lifting more than 15 pounds, prolonged walking, stooping or bending. She reported this disability on her employment application for these positions. Her back injury clearly limited her in a "major life activity," such as lifting, walking, prolonged standing, or her level of mobility and strength in general. All of the positions for which she had applied were less strenuous than the position she had last held before going on retirement. This was testified to by the Petitioner as well as C. J. Brock, the Respondent's personnel director and Betty Thames, the Petitioner's immediate supervisor. Mr. Brock testified that her injuries would not normally be considered a negative factor for supervisory or consulting positions in nursing, which is the position at issue. In fact, after the Petitioner answered on all of her application forms "yes" to the question concerning whether she had a disabling or handicapping condition and had additionally written that her limitations involved lifting, bending, prolonged standing or walking, the personnel office still qualified her for the position at issue in this proceeding. In spite of that, the Respondent's agent in the hiring process still, at least as to position number 09671, formally asked her about her disability and handicap in the context of the above-quoted questions. The Petitioner maintains she was asked about this in each of her interviews for all four positions. Her testimony does not clearly show exactly what the nature of the questions were, if they were asked, and that self- serving testimony cannot serve as evidence of disability discrimination as to the other three positions, as it is not sufficiently preponderant credible and persuasive. The formal written questioning as to position number 09671, however, does show that the employer had a no doubt genuine, but for the reasons delineated below, illegal pre- occupation about the Petitioner's disability or handicap. There is no evidence of malicious intent in the above-quoted inquiry about the Petitioner's physical limitations or even in the statement attributed to Steve Lacy referenced above. The inquiring statement rather reflects a genuine but ill-advised concern by the Respondent about getting an employee in the subject position who might be absent from work excessively or be the source of other personnel problems due to her disability. The Petitioner has raised an issue concerning "pre- selection" by citing statements witnesses related at hearing, made by certain supervisory individuals involved to one degree or another in the hiring process for the four positions at issue. These statements purport that a certain person who ultimately got the job in question was the person the declarant involved wished to have apply for the job or a statement to the effect that the Petitioner need not apply because another person, such as, for instance, Nora Howell, was going to get the job. These statements were purportedly made before the hiring process started or was completed, and therefore were offered as evidence of illegal pre-selection, that is, illegal pre-selection in the context of the agency's rules. These statements were admitted as party admission exceptions to the hearsay rule. In terms of their credibility and persuasiveness, however, it is pointed out that they were not subject to cross- examination. Moreover, whether they are credible or not, they did not stand as probative of racial discrimination or disability discrimination because the statements could just as easily have been reflections of preferences based on friendship, which might be distasteful, ill-advised, or even illegal in another context but does not itself show racial animus or intent to discriminate based upon the Petitioner's disability. The statements might equally reflect an innocent statement or statements by these individuals which reflect their genuinely-held belief that the persons they purportedly favored were actually the best qualified for those jobs. It is thus found that these statements, as evidence of pre-selection, are largely immaterial to resolution to the issues in this case because they do not have any significant probative value in fact-finding as to the issues of racial or disability discrimination. The Petitioner was paid $1,544.68 bi-weekly through January 25, 1994, the date she retired. She was making $1,499.69 on a bi-weekly basis prior to September 30, 1993, back through the relevant period at issue. Her salary would have been increased a minimum of 10 percent if she had been hired at any of the four positions involved in this case. Because of the above findings of fact, she should have been hired in position number 09761. Thus, she should have had her pay increased by 10 percent from the hiring date for that position forward to the time when she retired. That hiring date would be shortly after the interview date for that position, of February 1, 1993, so her salary should have been increased 10 percent forward from that time with a cost of living increase of 3 percent beginning October 1, 1993, with such back pay and attendant upward adjustment in retirement benefits being awarded through her retirement date of January 25, 1994. There is no proof of compensatory pay, front pay or attorney's fees and costs in this proceeding.
Recommendation Accordingly, in consideration of the preponderant evidence of record and for the reasons delineated in the above findings of fact and conclusions of law, the Petitioner was the victim of discrimination because of her handicap as to position number 9671. Because the Petitioner is unable, due to her total and permanent disability to return to work, her remedy is back pay. She should therefore be awarded back pay represented by the salary she would have earned in position number 9671 from the hiring date of that position which occurred shortly after February 1993, the interview date. She should have her attendant retirement benefits adjusted upward by virtue of being denied that job, with an attendant cost of living increase of 3 percent which she would have earned beginning October 1, 1993, with such increased salary and benefits to be awarded terminating as of January 25, 1994, her retirement date. Jurisdiction is reserved on the issue of attorneys' fees and costs. DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1997. COPIES FURNISHED: Lawrence F. Kranert, Esquires Florida State Hospital, Building 249 Post Office Box 1000 Chattahoochee, Florida 32324 Jack McLean, Esquire 100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909 Larry K. White, Esquire John W. Hedrick, Esquire 1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact This cause comes on for hearing based upon the petition of Jeanne Fried, R.N. filed with the State of Florida, Department of Professional and Occupational Regulations, Board of Nursing, Respondent. This petition was received by the Respondent on October 4, 1978 and referred to the State of Florida, Division of Administrative Hearings for consideration in accordance with the provisions of Section 120.57(1), Florida Statutes. The Petitioner is a Registered Nurse licensed to practice in Florida. The Respondent is an Agency of the State Of Florida which has among its responsibilities the licensure, certification and regulation of certain individuals who wish to practice nursing in the State of Florida, to include the Petitioner. In 1968, the Petitioner received a Baccalaureate degree from the Medical College of Georgia. Her degree was in nursing and she became a Registered Nurse at that time. Since 1968, the Petitioner has worked in the field of nursing. In addition, she has received a Masters of Education degree from the University of Florida with a minor in nursing. This latter degree was earned in December, 1975. Subsequent to receiving the Masters of Education degree, Ms. Fried attended a course entitled Studies for Nurse Practitioners for Adult Care, and was awarded a certificate of completion in that course. That certificate was received in March, 1976 and a copy of the certificate may be found as the Petitioner's Exhibit Number One (1), admitted into evidence. After receiving that certificate, she worked in the capacity of an Advanced Registered Nurse Practitioner at the Lake Butler Reception and Medical Center, Lake Butler, Florida from April, 1976 through August, 1976. From August, 1976 to the present, the Petitioner has worked in a similar position in the Veterans Administration Hospital at Lake City, Florida. Until July 17, 1977, the Respondent had not recognized nor established guidelines for the position known as Advanced Registered Nurse Practitioner. On that date, the Respondent enacted an item entitled Appendix to Chapter 210-11, Guidelines for Advanced Registered Nurse Practitioner Programs of Study. This item appears as a rule set forth in the Florida Administrative Code. The authority for the passage of the rule is found in Subsection 464.051(3), Florida Statutes and it implements Subsections 464.021(2)(a), 4 and 464.051(3)(d) and (e), Florida Statutes. To receive the necessary certification to become an Advanced Registered Nurse Practitioner, an applicant must comply with the guidelines set forth in the aforementioned appendix. The only aspect of the guidelines which is in dispute between the parties is found in that section of the appendix entitled, "Curriculum" and specifically (3) which reads: The program shall be at least one (1) academic year in length (nine months full time) which shall include a minimum of one (1) academic quarter of theory in the biological, behavioral, nursing and medical sciences relevant to the area of advanced practice, in addition to clinical experience with a qualified preceptor . . . The petitioner does not disagree with the fact that the course that she was certified in from the University of Florida in March, 1976 does not constitute an academic year within the meaning of the appendix; however, she is of the persuasion that she is entitled to certification as an Advanced Registered Nurse Practitioner because individuals who also attended the University of Florida course, Studies for Nurse Practitioner for Adult Care, have been certified by the Respondent as Advanced Registered Nurse Practitioners. (This certification for the other individuals has occurred notwithstanding their failure to complete a full academic year as prescribed in the guidelines for the Advanced Registered Nurse Practitioners found in the Appendix to Chapter 210-11, Florida Administrative Code.) The basis for the certification of these other unnamed individuals transpired through an apparatus of the Respondent, in which, by meeting of its governing board, it was determined that individuals who did not meet the academic requirements of the Appendix to Chapter 210-11, Florida Administrative Code, nonetheless would be given an opportunity for certification as Advanced Registered Nurse Practitioners. This special dispensation on behalf of these unnamed parties was granted in the face of the clear requirements of the established rule, which is the Appendix to 210-11, Florida Administrative Code. By that, it is meant that the rule was passed effective July 17, 1977, but its application to these unnamed individuals who received certification as Advanced Registered Nurse Practitioners without complying to the terms and conditions of the rule, was withheld. The technique for withholding it was to extend the period of enforcement of the guidelines to become effective March 31, 1978 as opposed to the prescribed date of July 17, 1977. Any applicants who applied prior to that date would be considered on a basis which did not require strict compliance with the academic requirements of the "Curriculum" guideline, which could be and was waived in the instances of some of the applicants, to include applicants in a similar factual circumstance to the Petitioner in that they had attended the University of Florida, College of Nursing course, Studies for Nurse Practitioner for Adult Care. The way prospective applicants were notified of the "grace period" allowing noncompliance with the academic requirement for certification in the subject field, was through the publication of that information in the newsletter of the Respondent which is forwarded to hospitals, public health clinics, colleges of nursing in Florida and the Florida Nurses Association. In addition, the Florida Nurses Association attempted to make its members aware of the "grace period." Also, it was the policy of the Respondent to advise the prospective applicants for certification as Advanced Registered Nurse Practitioners of the opportunity for consideration during the "grace period." This information sheet was typically mailed to the applicant with the application form, once an inquiry on the question of application had been received from the applicant. The Petitioner did not receive notice of the "grace period" through any published newsletter or bulletin and did not receive a copy of the information sheet which would have apprised her of the fact of the "grace period." She inquired about making application in February, 1978 and began to execute her application form on March 13, 1978 and completed the form on June 14, 1978. This can be seen by an examination of the Petitioner's Exhibit Number Five (5) admitted in evidence, which is a copy of the application for certification as Advanced Registered Nurse Practitioner filed by the Petitioner with the Respondent. Due to the fact that the application was received subsequent to March 31, 1978, and the fact that the Petitioner did not meet the academic requirements established in the Appendix of Chapter 210-11, Florida Administrative Code, her application to be an Advanced Registered Nurse Practitioner was denied through correspondence dated September 13, 1978.
Recommendation It is recommended that the application by the Petitioner, Jeanne Fried, R.N., be denied by the Respondent, State of Florida, Department of Professional and Occupational Regulations, Board of Nursing. DONE and ENTERED this 30th day of January, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Ms. Jeanne Fried, R.N. Post Office Box 932 Alachua, Florida 32615 Geraldine Johnson, R.N. Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211
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 for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Jean L. Hammer, was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 0588011. In October 1986, respondent was employed by Pinewood Lodge, a treatment center for alcohol and drug rehabilitation, as a staff nurse on the midnight to 8:00 a.m. shift. Respondent was the only employee on duty during her shift, and was responsible for monitoring the patients for signs of distress, noting their progress on the medical records, and administering prescribed medications. For such services, respondent was paid $27,000 per annum; a salary consistent with that paid a registered nurse (R.N.) at the facility. In January 1987, respondent was offered and accepted the position of Supervisor of Nurses at Pinewood Lodge. The staffing of this position required the services of and provided an annual salary of $25,000 and other benefits. Respondent occupied this position until July 1987 when it was discovered that she was not a registered nurse and was discharged. The respondent's personnel file at Pinewood Lodge demonstrates that in seeking and gaining employment at the facility respondent represented herself to be a licensed registered nurse, the recipient of a Bachelor of Science degree from the University of Pittsburgh, and the recipient of an Associate in Science Nursing degree from Broward Community College. Such representations were false, and the documents submitted to support such representations were forgeries. The proof further demonstrates that respondent assumed the title of R.N., routinely signed documents in a manner that identified her as an R.N., and otherwise led the public and associates to believe that she was licensed as a registered nurse; all for pecuniary gain. While there was no showing that anything untoward occurred during the course of her tenure at Pinewood Lodge, respondent knew her actions were improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's license for one year, that following such suspension respondent be placed on probation for two years subject to such terms and conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1988. APPENDIX Petitioner's proposed findings of fact have been addressed as follows: Addressed in paragraph 1. Addressed in paragraph 4. 3-4. Addressed in paragraph 3. 5-6. Addressed in paragraph 4. 7-8. Addressed in paragraphs 3 and 5. 9. Addressed in paragraph 5. COPIES FURNISHED: E. Raymond Shope, Esquire John S. Cobb Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard Smith, Esquire 1258 South State Road 7 Fort Lauderdale, Florida 33317-5989 Judie Ritter, Executive Director Board of Professional Nursing 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this proceeding are whether the Respondent has committed violations of statutes pertaining to the practice of nursing as alleged in the Amended Administrative Complaint, and, if so, what disciplinary action is appropriate.
Findings Of Fact At all times material to this proceeding, the Respondent has been licensed by the Petitioner as a licensed practical nurse. From approximately May 21, 1980 until May 29, 1981, the Respondent was employed as an "LPN charge nurse" at Huntington Square Convalarium, Inc., in Daytona Beach, Florida. She had previously been employed at Huntington Square in the same capacity for approximately two months. She then went on maternity leave before she was reemployed. Persons in this capacity at Huntington Square supervised several nurses' aides, and performed usual nursing duties which included assessment of patients, preparation, administering and charting of medications, public relations duties with members of patients' families, telephone duties, being aware of safety conditions in the building, and the like. During the time that she served as a charge nurse at Huntington Square, the Respondent, on a recurring and frequent basis, engaged in unprofessional conduct which departed from the minimal standards of acceptable and prevailing nursing practice. Respondent was experiencing extreme personal difficulties during that period, and she was subject to extreme mood swings while on the job. While in depressed moods, the Respondent would occasionally become inattentive to patients' needs and, on a few occasions, she failed to respond to obvious needs such as a catheter misplacement or edema. Respondent was subject to frequent crying fits. Other than occasional inattentiveness, the Respondent would, during her depressed episodes, inadequately chart and document procedures, use loud and profane language, and engage in extended conversations with staff members, visitors, and even patients regarding her personal problems. Respondent's conduct was disruptive and upsetting to the staff at Huntington Square, especially to those persons whom the Respondent supervised. Respondent's preoccupation with her own problems caused her to give too little attention to the needs of her patients, both directly and through persons she supervised. There was no testimony from which it could be concluded that any serious repercussions were imposed upon the Respondent's patients by her conduct. The conduct did, however, fall below minimal and acceptable standards of nursing practice in the State of Florida. Respondent's depression appears to have reached a peak in May, 1981. At that time, she was involved in an incident at Pick Shoe Store in Daytona Beach. The Respondent was dating an employee of the store. Respondent showed up at the store in an extremely agitated condition with a hand gun. Respondent was ultimately forced out of the store, the door was locked behind her, and she was handled by the police. What the Respondent's specific intent was at that incident is not known. She did admit to various persons, however, that on at least one occasion she attempted suicide at approximately that time. The Respondent suffers from a condition, recurrent depression, which is properly classified as a mental illness. The condition has in the past affected her ability to perform nursing functions. The condition is, however, controllable. Respondent was hospitalized in connection with a suicide attempt. Since October, 1951, she has engaged in regular counselling services at the Human Resources Center in Daytona Beach. Her condition has stabilized, and she has taken positive steps to improve her personal relationships. If the Respondent's condition remains stable, she is fully able to practice nursing effectively. If the Respondent continues to engage in a regular counselling program, it is likely that her condition will remain stable. Since November, 1981, the Respondent has worked at Bowman Nursing Center as a supervisor nurse. She is charged with responsibilities for examining reports; taking controlled drug counts; setting up, administering and charting medications; assisting with feeding; reporting on patients' progress; and making written evaluations. The Respondent has performed her job functions in an acceptable manner, and her job performance has steadily improved during her employment.
The Issue Whether the Petitioner, International Vocational Training Center, should be approved to train practical nurses as requested. More specifically, whether the proposed program has demonstrated it has adequate physical space and an appropriate curriculum as required by provisions of the Florida Administrative Code.
Findings Of Fact On or about January 28, 2002, the Petitioner, International Vocational Training Center, through its President and CEO, Hilda Allen, filed an application for nursing program with the Respondent, Board of Nursing. This is the application at issue in this proceeding. Prior proposals whether reviewed or acted on by the Respondent or not are not at issue. On March 11, 2002, the Respondent provided feedback to the Petitioner regarding the application. More specifically, the Respondent noted items that would "strengthen" the proposal and make it "more efficient for board review." Among the items suggested were limiting class size, providing information deemed partial or incomplete, and to submit a final proposal with the amendments documented. On April 25, 2002, the Respondent acknowledged receipt of Petitioner's amended application and notified Petitioner that a site visit to the school would be conducted on May 21, 2002. The site visit was performed by the Respondent's nursing education director, Danni Atkins, and Dan Coble, Executive Director for the Board of Nursing (Board). Concurrently to the site visit, the Petitioner's application was scheduled for Board review at its June 2002 meeting in Fort Lauderdale. At the June 2002 Board meeting, action on the Petitioner's application was tabled. At that time the Respondent requested, and Petitioner timely submitted additional information regarding the application at issue. The matter next came before the Board in August 2002. By this time the Board had identified three areas of concern: the physical space allocated by the applicant for the program, the curriculum content for the program, and other financial and budget issues related to the applicant. Again the Petitioner sought to provide information to satisfy the Respondent's concerns. Nevertheless, the Board issued a Notice of Intent to Deny in October 2002. In December 2002, the Petitioner appeared before the Respondent to again attempt to resolve the issues. At that time the Petitioner offered evidence to demonstrate it met the criteria concerns noted by the previous comments. In this regard, the Petitioner sought and obtained an approval from the Department of Education for the practical nursing program it proposes. A copy of that document was marked and received in evidence as Exhibit 2. The curriculum (dated July 2002), while acceptable to the Florida Department of Education, has not been fully reviewed by the Board. As to the physical space concerns expressed by the Respondent, diagrams submitted by the Petitioner do not contain dimensions as to width or length for any of the rooms designated. During the Board meeting on December 12, 2002, the Petitioner represented it had over 6,000 square feet of space to allocate to the practical nurse program. In contrast, on June 27, 2003, Petitioner represented the space measured about 4300 square feet. In either event, the configuration of the space is the essential issue. During the site visit, representatives from the Board were unable to determine that the physical space as proposed for configuration by the applicant would be adequate given the number of students who would be participating in the program. The applicant has not demonstrated the square footage and configuration of the physical space it proposes to use with the specificity needed to determine whether it would be adequate for the number of students participating in the program. The applicant did not submit copies of leases for off-site spaces that might be used for classroom purposes. The Petitioner did not use any Board-approved nursing program as a consultant to develop or fine-tune its proposed curriculum. The basis for the denial of the instant application was stated to be: The application failed to contain a financial plan and budget showing that adequate funds had been allocated for provision of a sound and effective total operation within the program; and it failed to show financial resources adequate for planning, implementation, and continuation of the program with a budget projection for 3-5 years, as required by Rules 64B9- 2.007(3) and 64B9-2.011(1)(b)10., Florida Administrative Code; The application failed to reveal the institution possessed adequate space to operate a practical nursing program, as required by Rule 64B9-2.007(6)(a), Florida Administrative Code; and The applicant failed to meet practical nursing program curriculum requirements as contained in Rules 64B9-2.006(3) and 64B9- 2.015(7), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing grant the Petitioner's application with the provision that the application be amended to cure the deficiencies noted above. The Petitioner must modify its curriculum to delineate the limitations of practice for practical nurses and to fully address the role of the practical nurse. Further, the Petitioner must submit an amended drawing of its physical space to clearly and accurately depict the dimensions and spaces intended for the uses described. Should the Petitioner fail to amend the information submitted, it is recommended that the application be denied. DONE AND ENTERED this 28th day of August 2003, in Tallahassee, Leon County, Florida. S J. D. 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 28th day of August, 2003 COPIES FURNISHED: Susan B. Bodell, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kenneth S. Mair, Esquire Mair, Jean-Francois & Associates, P.A. 3500 North State Road, Suite 479 Fort Lauderdale, Florida 33319 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, RN PhD CNNA C, BC Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252
Findings Of Fact Wright is a licensed practical nurse in Florida, holding license number PN 185281. In accordance with her licensure, Wright worked as a practical nurse at Manor Care Nursing Center in Jacksonville, Florida. On January 15, 1991, patient R.B. was admitted to Manor Care for recovery from multiple factures and organic brain damage. R.B. was receiving nourishment, Jevity, through a nasogastric tube (NGT). On January 18, 1991, at approximately 5:00 p.m., R.B. removed the NGT. R.B.'s mental confusion was such that she would attempt to remove the NGT regularly and mittens were used to prevent this behavior. Wright was the nurse responsible for R.B.'s care from approximately 4:00 p.m. to midnight on January 18, 1991. She recorded R.B.'s removal of the NGT. At some point thereafter, registered nurse Rosalina Harrell came and reinserted the NGT. At 9:30 p.m., Wright's notes indicate that R.B. was coughing and that she checked the placement of the NGT. Placement is checked to insure that the tube is inserted into the stomach and not into the trachea and lungs. According to Wright's notes and testimony, she discontinued feeding to give R.B. a rest, even though the placement checks were negative, meaning that the checks did not show that the tube was in the trachea or lungs. Wright restarted the feeding of Jevity (a white liquid food supplement). At 10:30 p.m., Wright's notes showed that R.B. was coughing up "large" amounts of white frothy phlegm. Wright again held the tube feeding for a short time. Another practical nurse, Margaret Patti, came on duty to replace Wright as the nurse in charge of R.B.'s care. In discussing R.B.'s condition with Wright, Wright informed Patti that R.B. had been coughing since the tube was inserted by Harrell. Wright said she did not remove the tube because she was not sure it was indeed in the wrong place. Wright and Patti then both did one test for placement and it was negative to show that the tube was incorrectly placed . Wright then did two other tests while Patti was out of the room, but she reported to Patti that those tests were also negative. Because of the concerns expressed by Wright, Patti monitored R.B. closely after Wright left around midnight. Patti observed some coughing and white sputum between 11:30 p.m. and 2:00 a.m., January 19, 1991. Again at 2:00 a.m. Patti recorded the R.B. was coughing and there was a moderate amount of white sputum present. Then the coughing became continuous and Patti removed the NGT. At 4:00 a.m., Patti recorded that R.B.'s respirations were even and unlabored and that tube feeding remained discontinued. At 5:00 a.m., Patti was advised by the nursing assistant that R.B. had no respiration or heartbeat. Patti called the doctor at 5:40 and R.B. was dead. An autopsy revealed that R.B. had died from asphyxia due to aspiration of Jevity. The lungs were full of Jevity and the bronchioles were plugged by the soft white material. There was nothing in R.B.'s stomach. As it relates to Wright's actions that night, at no time did Wright call a supervisor, registered nurse or doctor to express concern about the placement of the NGT or to indicate the presence of coughing or a white frothy substance around R.B.'s mouth. The presence of coughing and white frothy sputum or phlegm around the mouth is a danger sign that the NGT is in the trachea instead of the stomach. The minimum standard of acceptable and prevailing nursing practice requires that a licensed practical nurse report coughing or frothiness to her supervisor or to an R.N. If the practical nurse did not place the tube, she should contact the person who did insert the tube. If no one is available, then the practical nurse should remove the tube and contact the supervisor, an R.N., or the doctor, by telephone. There is no other acceptable level of care except to stop the food immediately and then report the coughing and presence of white frothy sputum to the appropriate person. At Manor Care that night, no supervisor or R.N. was on the premises, but Wright made no attempt to reach anyone by telephone regarding the situation. Wright's failure to meet these minimum standards of care constitutes unprofessional conduct as that term is defined in Section 464.018(1)(h), Florida Statutes (1991).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final Order and therein: Issue a reprimand to Geraldine McNeal Wright. Place Wright on probation for six months subject to attendance at continuing education courses relative to the omissions in this case, to include a review of danger signs and appropriate responses in patients with nasogastric tubes and a refresher on the appropriate administration of procedures for checking the placement of such a tube. Impose a fine of $100. DONE and ENTERED this 11th day of February, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of February, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4573 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Nursing Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-5); 7(7); 9(12); 10(10); 11(11); 12(11); and 15(12 & 16). [Note--There are two different sets of paragraphs numbered 7, 8, and 9. A review of the actual Finding of Fact will clarify to which paragraph these specific rulings apply.] Proposed findings of fact 8, 9, 8, and 14 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13 and 16 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Geraldine McNeal Wright As indicated above, Wright's proposed findings of fact are in a form which does not permit clear specific rulings. Those proposed findings of fact which are based on the documents attached to the proposed order, which were not part of the evidentiary record, are rejected. Additionally, those proposals which constitute argument are rejected. The proposed findings of fact which are consistent with the facts found herein are adopted. All other proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Charles Faircloth Senior Attorney Department of Professional Regulation 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Geraldine McNeal Wright 7925 Merrill Road, Apt. 216 Jacksonville, FL 32211 Jack McRay, General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Board of Nursing Daniel Building, Room 50 111 E. Coastline Dr. Jacksonville, FL 32202
