The Issue Whether the Respondent's license to practice nursing should be disciplined based upon the allegations that Respondent was guilty of unprofessional conduct, in violation of Section 464.018(1)(h),Florida Statutes.
Findings Of Fact Department of Health (Petitioner) is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Chapters 20, 120, 455 and 464, Florida Statutes, and the rules promulgated pursuant thereto. Bonnie Fay Baker Palmer (Respondent), is now and was at all times material hereto a Licensed Practical Nurse (L.P.N.) in the State of Florida having been issued license no. PN 0448611 in accordance with Chapter 464, Florida Statutes. Respondent was employed at Imperial Village Care Center as a L.P.N. for approximately three and one-half years prior to February 21, 1996. Sometime in December 1995 or January 1996, while working the day shift as the floor nurse on Canterbury Hall of the Care Center, Respondent was assigned to care for patient, G. C. Patient, G. C., was an elderly patient who suffered from dementia and other ailments and was not ambulatory. G. C. had contractions of her left leg and left arm and any movement of those extremities caused her pain. G. C. was transported in a wheelchair and screamed, kicked, yelled, hit,and pinched anyone who tried to move her or give her treatment. On the date of the alleged incident, Respondent was ordered to medicate G. C., because she suffered from decubites (bed sores) on the heel of her foot. Respondent was assisted by a C.N.A. who picked up G. C. and placed her on her bed. G. C. became very agitated and began to scream, yell, scratch, hit and pinch Respondent and the C.N.A. Respondent attempted to apply medication to the affected area. While doing so, Respondent wore a protective mitten, used to protect staff from aggressive patients. During this time, the mitten was seen by the C.N.A. in the patient's mouth. The testimony is unclear if Respondent was wiping the saliva from patient's mouth with it, or if Respondent stuffed it in her mouth. The hearsay statement signed by Respondent, but prepared by the Director of Nursing, who did not testify, is not helpful in clarifying what happened. The statement was prepared approximately two months after the alleged incident by a person not present during the incident, and contained matters extraneous to this matter. Respondent has no prior criminal or disciplinary history and denies that she abused the patient in any way. No qualified testimony was offered to prove that Respondent failed to meet the minimum standard of acceptable nursing practice in the treatment of patient, G. C.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty of the charge in the Administrative Complaint, dated September 20, 1996, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1998. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Boyd, Lindsey, Williams, & Branch, P.A. 1407 Piedmont Drive East Tallahassee, Florida 32312 Bonnie Fay Baker Palmer Route 2, Box 810 Waynesville, Georgia 31566 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
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
Findings Of Fact On 22 June 1982 DHRS, Office of Licensure and Certification, conducted an inspection of Respondent's facility known as Regency Oaks at Gainesville, Florida. During this inspection the nurses' schedule was not produced and the inspector, with the assistance of Respondent's staff, attempted to reconstruct the nurses' schedule for the month of June, 1982, up to the date of the inspection. From the data received it was determined that on the 7:00 a.m. to 3:00 p.m. shift on June 5, 1982, Respondent was staffed with one registered nurse (RN) and three licensed practical nurses (LPN) on June 6 there were two RN's and two LPNs; on June 12 there were three RNs and one LPN; and on June 19 there were three RNs and one LPN. Staffing requirements for nursing homes are determined by the shift and census of the nursing home. All of the shortages here involved the day shift. On each of the days of 5, 6, 12, and 19 June the regulations required two RNs and three LPNs on the day shift. The regulations also permit the substitution of an RN for an LPN. Accordingly, from the evidence gathered bv Petitioner's evaluation at the June 22 inspection, Respondent was short one RN on June 5 and one LPN on June 6, 12, and 19. Respondent presented time cards for the periods here involved. These time cards, which were accepted in evidence as business records of Respondent, show that on June 12 Respondent had two RNs and three LPNs on duty on the day shift. Respondent's one witness admitted the nursing home was understaffed one RN on June 5 and one LPN on June 6 and 19.
The Issue The issues in this case are whether, before applying for licensure as a registered nurse in Florida, Petitioner had suffered the denial of an application for licensure as a practical nurse in the state of Virginia, and, if so, whether Petitioner's failure to disclose that fact in her Florida application was a knowing misrepresentation; finally, if either or both of the forgoing questions are answered in the affirmative, whether Respondent has grounds to deny Petitioner's pending application for a nursing license.
Findings Of Fact On October 15, 2012, Petitioner Yolette Tema ("Tema") signed an application for licensure as a registered nurse, which she mailed to the Department of Health for review by Respondent Board of Nursing (the "Board"). Item No. 9 of the application sought information about the applicant's disciplinary history. Four subparts (lettered A through D) asked questions that called for a "yes" or "no" answer, which the applicant was to give by marking the applicable check box. The first question ("9A") was: Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country? Tema answered, "No." In Item No. 10 of the application, there appeared above the signature line the following declarations: I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. Tema's signature manifested her agreement with the foregoing declarations. Despite having acknowledged the hard consequences of deceit, Tema's negative answer to the question of whether she ever had suffered the denial of an application for licensure was false. In fact, in June 2011, the Virginia Board of Nursing had denied Tema's application for licensure as a practical nurse, on the ground that she had provided false information in an effort to obtain a license by fraud, deceit, or material omission. Tema had received timely, contemporaneous notice of the Virginia Board of Nursing's final decision, and she was fully aware of that disposition at all times relevant to this case. When she completed the Florida application in October 2012, therefore, Tema knew that her response to question 9A was false. Because the information Tema failed to disclose obviously would have hurt her chances of obtaining a license in Florida, the undersigned disbelieves Tema's explanation for the material omission, which was that she simply made a mistake.1/ Instead, the undersigned infers that Tema intentionally omitted the damaging fact of the Virginia denial in hopes that the Board would not discover it.2/ The Board did, however, discover the Virginia decision while reviewing Tema's application. Based on that past denial and Tema's present failure to disclose it, the Board determined that Tema's Florida application should be denied. The Board's preliminary decision was communicated to Tema through a Notice of Intent to Deny dated February 11, 2014. Determinations of Ultimate Fact Tema is guilty of having an application for a license to practice nursing denied by the licensing authority of another state, which is a disciplinable offense under section 464.018(1)(b), Florida Statutes.3/ Tema is guilty of attempting to procure a license to practice nursing by knowing misrepresentation, which is a disciplinable offense under section 464.018(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying Tema's application for licensure as a registered nurse. DONE AND ENTERED this 10th day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2014.
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer 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 November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 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: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to these proceedings, respondent was a licensed practical nurse holding license number 26892-1. The designation of "-1" in the license number is the Board's designation for a licensed practical nurse, and the designation "-2" is for a registered nurse. Respondent is not now and has never been a licensed registered nurse in the State of Florida. In June of 1974, respondent went to the nursing director's office of the Bryan Cameron Community Hospital in Bryan, Ohio, and applied for a position as a registered nurse in the operating room. Respondent could not substantiate that he was a licensed registered nurse. On the day that respondent was to report to work, the hospital administrator, Mr. Rusty O. Brunicardi, told respondent that he was having a problem verifying his registry and asked respondent if he would fill out a form saying that he was a registered nurse. Respondent then filled out and signed a form, witnessed by two persons, certifying that he was a licensed registered nurse in the State of Florida and that, his license number is 26892-1. Mr. Brunicardi also informed respondent that he should contact the Florida State Board of Nursing and have them call him and that, upon Brunicardi's receipt of a call from the Board, respondent could start to work. Respondent indicated to Brunicardi that there was some kind of mixup in the Board's files and that he would straighten it out. Respondent then left and Brunicardi never heard from him again. Respondent began his employment with the Manhattan Convalescent Center in Tampa, Florida, on October 17, 1975. As a part of the orientation procedure for new employees, respondent was made aware of the Center's policy or procedure with respect to patient trust funds. The policy was that when patients with money in their possession are admitted to the Center, the money was to be taken by the admitting nurse to the business office and put into a trust fund account for the patient. After the money had been turned in, the nurse would give the patient a receipt. The business office kept a ledger card for each patient. when a patient requested money, the nurse was to write it down in the trust fund book on the station, take it to the office and deliver the money requested to the patient on the following day. On or about November 20, 1975, Gloria Elizabeth Adams was admitted as a patient to the Manhattan Convalescent Center having in her possession $44.00 in cash. She gave $35.00 of this amount to her admitting nurse, respondent herein, for the purpose of putting it into a trust fund for her. Respondent wrote in his nursing notes on Adams' admission that she had brought money in and that it had been put in her trust fund. A day or two thereafter, respondent asked her to write a check for the trust fund. She asked respondent what had happened to the $35.00 she had previously given him and, not receiving a satisfactory answer, she refused to give him a check. Ms. Adams then went to the desk and asked to withdraw $5.00 from her account. She was told she would receive it the following day. She then saw respondent, who again asked her to write a check for $35.00 for the trust fund. She again refused and told him she had asked to withdraw $5.00 from her account. He then brought her $5.00, and she never saw him again. About a week after Ms. Adams was admitted, the Director of Nursing at the Center, Phyllis Hereford, learned that there was a problem with Ms. Adams' trust fund. Since respondent was Adams' admitting nurse, Ms. Hereford spoke to him about it. He at first told her that he had put the money in an envelope and put the envelope in a narcotic book for Sister Edna Mae, the next nurse coming on duty. Ms. Hereford suggested that he call Sister to see if she remembered. He did so and Sister was very adamant that she did not receive an envelope with money in it in the narcotic book, and that, had the envelope been there, she would have seen it when she was counting drugs. Director Hereford told respondent that since he had mishandled Ms. Adams' money, he was responsible for it and should pay it back. He indicated that he would do so, but he did not return to work more than one day thereafter. The administrator of the Center determined that the missing $30.00 would be deducted from respondent's pay check and placed into the Adams' trust fund. The ledger card for Ms. Adams reveals that on December 9, 1975, a deposit was made for $30.00 "to cover mishandled monies on Station 2." There was nothing on the ledger to indicate that an earlier deposit had ever been made. Ms. Hereford learned that another patient, Doris Clark, had $10.00 mishandled by respondent and the Center deducted $10.00 from respondent's paycheck and reimbursed Clark's trust fund by such amount. No objection or complaint was received by the Center from respondent concerning the $40.00 deduction from his salary.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board dismiss that charge relating to the monies of Doris Clark; find respondent guilty of unprofessional conduct in his actions surrounding the monies of Ms. Adams; and find respondent guilty of willfully violating F.S. ss. 464.081(1) and 464.24(1)(d) in his actions surrounding his attempt at employment with the Bryan Cameron Community Hospital. It is further recommended that, for such offenses, the Board suspend respondent's license number 26892-1 for a period of one (1) year. Respectfully submitted and entered this 5th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Danny L. Pressler 3 Seashore Drive Ormand Beach, Florida Mr. Danny L. Pressler 307 Southeast Avenue Montpelier, Ohio 43543 Ms. Geraldine Johnson Florida State Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211 Julius Finegold 1130 American Heritage Life Building Jacksonville, Florida 32202
Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1982.
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand. RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516 Petitioner: 1. Partially adopted in finding of fact 1. 2-4. Partially adopted in finding of fact 2. 5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 3. 9. Partially adopted in finding of fact 4. 10. Rejected as being hearsay. 11-16. Partially adopted in finding of fact 5. 17. Rejected as being hearsay. 18-20. Partially adopted in finding of fact 6. 21-25. COPIES Partially adopted FURNISHED: in finding of fact 8. Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ms. Susan H. T. Benson P. O. Box 143 Naples, FL 33939 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In mid-January of 1978, the Bureau of Records Administration of the Department of Professional and Occupational Regulation mailed some 90,000 notices of license renewal to nurses currently licensed in the State. These notices contain the information that the nurses' current license expires on March 31, 1978, that failure by the licensee to renew before the expiration date automatically terminates the license, and that the license may be reinstated upon the payment of a fee and evidence that the licensee meets the current standards for practice. The notice further states that the current qualifications include the completion of high school or its equivalent. When the renewal cards and fees were returned to the Bureau of Records Administration, if postmarked on or before March 31, 1978, the Bureau mailed to each individual a renewal certificate for the year commencing on April 1, 1978. Processing time by the Bureau was generally two weeks, though it could take from four to six weeks. After the close of the renewal period, a lapse list was prepared and sent to the Board of Nursing to indicate those individuals who had not renewed their licenses. In 1978, some 4,000 to 5,000 names were on the lapse list. The only acceptable proofs of timely payment of the $6.00 renewal fee was actual receipt of the fee in the Bureau's office, signed certified mail, postmarks bearing a date of March 31st or before, or the tendering of cancelled checks. An application and notice of renewal was mailed to respondent Oliff, who has been a licensed practical nurse since 1968. A renewal certificate was not issued to her by the Bureau because the Bureau did not receive the $6.00 fee. The Bureau prepared and forwarded to the Board of Nursing a lapse card indicating respondent's failure to renew her license. Had the Bureau received respondent's renewal application and fee, it would have issued a renewal certificate to her. Respondent Oliff received the renewal notice and information from the Bureau. She was aware that her LPN license expired on March 31, 1978, and that her failure to renew the same would terminate her license. She was also aware that if her license were terminated, she would have to apply for reinstatement or reregistration with the requirement that she meet current qualifications, among which was the completion of high school or its equivalent. Ms. Oliff did not then and does not now possess this qualification. Nursing is the respondent's sole means of support, and she is also responsible for the support of her retarded daughter, a grandchild and her mother. It was Ms. Oliff's testimony that, on or about February 12, 1978, she wrote a $6.00 check made payable to the Board of Nursing, placed the check in the return envelope which was provided in the renewal notice and placed the stamped envelope in the United States mail. This testimony is substantiated by a copy of respondent's check register and by the testimony of Ms. Frances Fisher, a friend who was with respondent when she prepared the envelope and when she took it to the post office in St. Petersburg. Respondent Oliff did not become particularly concerned when she did not receive her renewal certificate before March 31, 1978, because in two previous years she had not received her renewed license. On those occasions, she had been able to obtain her license by showing the cancelled checks. Respondent came to Tallahassee on the evening of March 31, 1978, on other business. On the first working day thereafter, April 3, 1978, she went to the Department of Professional and Occupational Regulation and inquired about her license. It was at this time that respondent learned that her license had been terminated because the Department had not received her check or renewal form. Respondent tendered a $6.00 check to the Board of Nursing. This check was returned to her with the explanation that her license could not be renewed for $6.00. She was advised to place a tracer on her original renewal application and check and was informed that if she provided proof of the proper postmark or of a cancelled check, the renewal would be issued. A tracer or mail nondelivery report was placed by respondent with the U.S. Postal Service. Respondent was advised that the Postal Service was unable to locate the letter. Respondent applied for reinstatement. This was denied by the Board of Nursing on the grounds that respondent did not meet the current qualifications for a licensed practical nurse; to wit: the completion of an approved four year high school course of study or equivalent thereof.
Recommendation Based upon the above findings of fact and conclusions of law, it is recommended that: The Board of Nursing deny respondent's reinstatement application for failure to meet current standards for practice; and The Board of Nursing issue a renewal license for 1978-79 to the respondent upon the respondent's tender of the renewal fee and completed application. Respectfully submitted and entered this 29th day of November, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 COPIES FURNISHED: Judson M. Chapman Horne, Rhodes, Jaffry, Stephens, Bryant, Horne and Chapman Post Office Drawer 1140 Tallahassee, Florida 32302 Julius Finegold 1107 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson State Board of Nursing 6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Karen J. Workman Oliff P.O. Box 3121 CASE NO. 78-1337 St. Petersburg, Florida 33731 As a Licensed Practical Nurse License Number 20183-1 (Terminated) /
The Issue Whether Respondent should take final action to deny Petitioner's application for licensure as a practical nurse on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact Petitioner is a native of Haiti, where she graduated from the Université d'Etat d'Haiti, l' École Nationale des Infirmières, Haiti's national nursing school, in 1993. Since 1997, she has lived and received mail at a residence in North Miami Beach, Florida, having the following mailing address: 1120 Northeast 155th Street, North Miami Beach (or, alternatively, Miami), Florida 33162 (155th Street Mailing Address). In or about 2006 and 2007, Petitioner attended the Miami Lakes Educational Center's practical nursing program, but she never completed the program. Thereafter, Petitioner enrolled in and later completed (in or about June 2008) a "remedial" program of practical nursing coursework specifically designed for graduates of Haiti's national nursing school. The coursework was given at Miami-Dade College (North), under the directorship of Mariane Barrientos. On April 23, 2009, Petitioner filed with Respondent an Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (First Florida Application). On the completed application form, in the spaces provided for the applicant to indicate the "Nursing School Attended" and "Additional Nursing Program Attended," she wrote "Universite D'Etat Ecole Nationale Des Infirmières" and "Miami Dade College Remedial Theory & Clinical," respectively. By letter dated April 30, 2009, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the address she gave as her mailing address on her First Florida Application, Respondent advised Petitioner that it had received her First Florida Application and, upon review, had determined it to be "incomplete" because the following requirements had not been met: Graduates of schools outside the United States must have credentials evaluated by a Board approved credentialing service. . . . Evaluation results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. Graduates of schools outside the United States must provide proof of Board approved English competency. . . . Results must be mailed directly to the Florida Board of Nursing. Copies from the applicant are not acceptable. After having received this letter, as well as follow-up written correspondence from Respondent dated August 12, 2009, also addressed to Petitioner's 155th Street Mailing Address (with "Miami" designated as the city), Petitioner withdrew her First Florida Application by completing a Respondent-created form (on which she gave her address as "1120 NE 155 St Miami Fl 33162") and submitting it to Respondent on October 27, 2009. Approximately two months later, in or around December 2009, Petitioner submitted an Application for License by Examination: Practical Nurse, to the Colorado Board of Nursing (Colorado Application). The application was accompanied by a money order (in the amount of $88.00) Petitioner had obtained to pay for the application fee. On the completed application form, under "Name of Professional Nursing Program Attended," "Miami Lakes Educational Center" was written; in the space provided for the applicant to indicate the "Date of Graduation," it was claimed, falsely, that Petitioner had graduated from this "[p]rofessional [n]ursing [p]rogram" in June 2009; and Petitioner gave her 155th Street Mailing Address (with "Miami" designated as the city) as her mailing address. At the end of the form was the following "Attestation," which Petitioner signed and dated on December 14, 2009: I state under penalty of perjury in the second degree, as defined in 18-8-503, C.R.S., that the information contained in this application is true and correct to the best of my knowledge. In accordance with 18- 8-501(2)(a)(1), C.R.S. false statements made herein are punishable by law and may constitute violation of the practice act. In support of the Colorado Application, the Colorado Board of Nursing received a fraudulent Miami Lakes Education Center transcript showing, falsely, that Petitioner had completed the nursing program at the school on June 29, 2009. The transcript purported to be signed (on December 11, 2009) by Dr. Angela Thomas-Dupree, who was an administrator at the Miami Lakes Education Center at the time. In fact, the signature on the transcript was a forgery: it was not Dr. Thomas-Dupree's, and she had not authorized anyone to sign her name on any transcript issued by the Miami Lakes Education Center.3/ In response to the Colorado Board of Nursing's request that she "verify [the] transcript" it had received (a copy of which the Board sent to her), Dr. Thomas-Dupree advised the Board, in writing (through a memorandum dated March 16, 2010), that (contrary to what the transcript indicated) Petitioner "[a]ttended [but] did not complete" the nursing program at the Miami Lakes Education Center. Thereafter, the Colorado Board of Nursing made its determination to deny Petitioner's Colorado Application on the ground that she had "attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact" in violation of Colorado law.4/ By letter dated June 25, 2010, addressed to Petitioner at her 155th Street Mailing Address (with "Miami" designated as the city), the Colorado Board of Nursing advised Petitioner that a decision had been made to "deny [her] request for a license." The body of the letter read as follows: Panel B of the State Board of Nursing ("Board") reviewed your application for a Practical Nurse license on June 23, 2010. After careful consideration of all of the information contained in your application file, it was the decision of the Panel to deny your request for a license based on C.R.S. §12-38-118 and §12-38-117(1)(a) and its determination that you: have procured or attempted to procure a license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact; If you feel that you have additional information or documentation to submit that would change the outcome of the Panel's decision you may write a letter and request that your file and the supplemental information be re-examined by the Panel. Feel free to contact me if you have any questions regarding this process. Pursuant to sections §12-38-1-117, 12-38-118, and 24-4-104(9), C.R.S., you have the right to request a hearing regarding the denial of your application. In order to exercise this right, you must provide written notification to the Board at the above listed address within sixty days from the date of this letter specifically requesting a hearing. In the event that you do not make a timely request for a hearing, the denial will become final. At the end of the letter was a Certificate of Service, signed by the letter's author, certifying that the letter: was sent First Class Mail from Denver, Colorado, this 25th day of June 2010, addressed as follows: Benita S. Jean-Noel 1120 NE 155th Street Miami, FL 33162[5/] Petitioner received the Colorado Board of Nursing's June 25, 2010, letter,6/ but did not request a hearing on the decision to "deny [her] request for a license." The decision therefore became final, as the letter indicated it would. From approximately December 2011 to December 2012, Petitioner took additional nursing coursework at Sigma Institute of Health Careers (Sigma). On November 5, 2012, before graduating from Sigma, Petitioner filed with Respondent a second Application for Nursing Licensure by Examination seeking a license to engage in the practice of practical nursing in Florida (Second Florida Application). Her signature (dated September 5, 2012) was affixed on the line provided for the "Applicant's Signature" on the penultimate page (page 17) of the completed application form, and it was immediately preceded by a statement reading, in pertinent part, as follows: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. At the time she filled out and signed the application form, Petitioner knew that she had applied for licensure as a practical nurse in Colorado and that her application had been denied on the grounds that she had "attempted to procure [the applied-for] license by fraud, deceit, misrepresentation, misleading omission, or material misstatement of fact." Nonetheless, wanting to keep this damaging information from Respondent, in response to Question 6A on page 13 of the form, which was, "Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country?," she checked the "No" box, knowing her answer to be false. Question 6A was one of four questions in the "Disciplinary History" section of the form, at the end of which was the following directive: If you answered "Yes" to any of the above questions, please send a written letter of self explanation. You must contact the Board(s) in the State(s) in which you were disciplined. You must request official copies of the Administrative Complaint and Final Order be sent directly to the Florida Board of Nursing. Consistent with her having answered Question 6A in the negative, Petitioner did not, along with the submission of her completed Second Florida Application, "send a letter of self explanation" concerning the denial of her Colorado Application.7/ Despite Petitioner's nondisclosure, in its investigation of Petitioner's application, Respondent found out about the Colorado Board of Nursing's denial of her application in 2010, and it obtained a copy of the June 25, 2010, denial letter that Petitioner had received from the Colorado Board of Nursing. Thereafter, by letter dated November 15, 2012, addressed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city), the address she gave as her mailing address on her Second Florida Application, Respondent directed Petitioner to, among other things, "[r]equest that the Board(s) in the state[s] where [she was] previously denied send official copies of the final order to the Florida Board of Nursing" and to also "[s]ubmit a self explanation in reference to the denial(s)." In response to this request, Petitioner wrote Respondent a letter in which she denied, falsely, ever even having applied for a license in any state, including Florida, in the past. Respondent, however, knew better. On February 15, 2013, it issued the Notice of Intent to Deny set out in the Preliminary Statement section of this Recommended Order. The Notice's Certificate of Service reflects that it was mailed to Petitioner at her 155th Street Mailing Address (with "North Miami Beach" designated as the city) on February 18, 2013. In response to the Notice, Petitioner wrote a letter to Respondent, dated March 4, 2013, claiming, falsely, that she "never applied to the Colorado Board of Nursing"8/ and expressing her "read[iness] to challenge any misconception or any misunderstanding regarding the matter." Respondent treated Respondent's letter as a request for hearing and, on March 12, 2013, referred the matter to DOAH for the assignment of an administrative law judge to conduct the requested hearing. The assignment was made, and the hearing was held, as noted above. The foregoing Findings of Fact are based on the evidence received at that hearing and the record as a whole.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing issue a final order denying Petitioner's pending application for licensure as a practical nurse on the grounds alleged in the Board's February 15, 2013, Notice of Intent to Deny.12/ DONE AND ENTERED this 11th day of June, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2013.
