The Issue Whether or not Respondent's nursing home administrator's license may be disciplined by reprimand, fine, restriction, suspension; or revocation for acts alleged in the administrative: complaint, specifically the alleged violations of Sections 400.022(1)(d), 400.162(1)and (2), 468.1755(1)(e), 468.1755(1)(g), 468.1755(I)(k), and 468.1755(1)(m) Florida Statutes (1983), and Rules 10D-29.104 and 10D-29.118(1) Florida Administrative Code.
Findings Of Fact At all times relevant, Respondent held Florida nursing home administrator's license number 0001557. She is also a registered nurse. She has worked in a variety of positions at various institutions in Florida, Pennsylvania, and New Jersey since 1963, including head nurse, assistant director of nurses, director of nurses, research nurse supervisor, assistant supervisor medical review team, assistant administrator of a nursing home, and administrator of a nursing home. The date she acquired Florida licensure as a nursing home administrator was not established, but it is clear her license has never before been the subject of disciplinary action. Her reputation as a nursing home administrator is outstanding, and in this capacity, she had been the recipient of numerous awards and commendations both prior to and since the incidents giving rise to the administrative complaint herein. Petitioner's argument that the documents in support of Respondent's character and ability which were written in late 1984 and in 1985 are not credible because the writers did not know of the incidents giving rise to the administrative complaint is not persuasive, as it is apparent from the evidence as a whole that the events giving rise to the administrative complaint were a topic of conversation in the community at least by October, 1984. From January 1979 until October 1984, Respondent, who is 46, held the position of nursing home administrator at Heritage Health Care Center, Inc. (HHCC) in Naples, Florida. HHCC is a skilled nursing facility providing services to medicare, medicaid, and private pay patients. Clarence Berylyoung was a 78 year old private pay patient admitted to HHCC on July 21, 1983. His medical records reveal he was hospitalized briefly in October 1983 with a diagnosis of a stroke of unknown severity and organic brain syndrome. Respondent helped transport him to the hospital and back to the nursing home. It is not clear whether Respondent's accompaniment of Berylyoung at that time was part of Respondent's duties as HHCC nursing home administrator or as a result of a close personal relationship which had grown up between Respondent and Berylyoung. According to Ann Heusser, HHCC's current Director of Nursing Services and formerly its Day Supervisor, Berylyoung became more forgetful and harder to deal with after his hospitalization than he had been before and was confused and forgetful immediately afterwards. However, the medical records indicate Berylyoung was alert and had a stronger gait at the time of discharge on January 23, 1984. During his stay at HHCC, Berylyoung and Respondent did develop a close personal relationship; her part in which she described as "that of a good neighbor" or as providing companionship. She checked on his clothes daily. She talked to him when she saw him. At his request, she purchased beer and other items for him outside the facility. Because he had no family close by, she took him outside the facility occasionally at mealtimes and otherwise provided transportation for him to places he might wish to go. It is not clear at what precise dates but apparently while Berylyoung was still a patient at HHCC, and therefore prior to January 23, 1984; Respondent transported Berylyoung to a local attorney's office. While there, but without Respondent's prior knowledge, Berylyoung named Respondent as a beneficiary in his will. At this visit, or perhaps earlier, Berylyoung signed a "power of attorney" permitting Respondent to handle his affairs. Neither the will nor the power of attorney was offered in evidence and no timeframe was established by which the execution of these documents can be related to Berylyoung's October 1983 stroke or his subsequent discharge. Further, there is no evidence whatsoever that Respondent entered the attorney's office, let alone that she influenced Berylyoung then or at any time to make these decisions. While Berylyoung was still a resident of the nursing home; Respondent used this power of attorney to transfer, at Berylyoung's request, approximately $25,000 to $30,000 of his funds from an Ohio bank to a Naples, Florida bank. She also used it to help him sell a trailer and a motor vehicle. There is no evidence that Respondent misused or mismanaged the funds or the sale or performed any act Berylyoung had not instructed her to do. No evidence established any timeframe by which these transactions can be accurately related to Berylyoung's stroke. As a private pay patient at HHCC, Berylyoung received no state or federal funds toward his care. His bill was approximately $1800 to $2,000 per month during his stay. He became dissatisfied with HHCC and wished to move out. After several months, he persuaded Respondent that without her help he would have no chance of ever leaving HHCC. She agreed that he could temporarily move into her home with herself, her husband, her two children, and her mother-in-law. Berylyoung was discharged on January 23, 1984. There is no evidence that the move was other than at Berylyoung's request or that Respondent persuaded, encouraged, or coerced Berylyoung to move from HHCC. Berylyoung stayed at Respondent's home until approximately February 24 or 25, 1984; when she placed him temporarily in a motel. He stayed at the motel for approximately five days, where Respondent checked on him 3-4 times a day and others did likewise. Respondent then helped him find an apartment and get settled and thereafter did occasional grocery shopping and housekeeping for him and generally maintained the friendly relationship they had established until August 26, 1985. Despite speculation by HHCC's Director of Dietary Services, Susan Gentry, as to why the move to the motel may have been desired by Respondent, there is no direct credible evidence that Berylyoung's move to his own apartment was other than at Berylyoung's own request or by mutual agreement. Respondent signed Berylyoung's name to a form indicating receipt of his medications (P-1A). This was done at the time of Berylyoung's discharge on January 23, 1984, at his request, and while Respondent still possessed the power of attorney to act for him. At the time it was signed, Berylyoung, with his medications, was moving into Respondent's home on a temporary basis. This falls short of establishing that Respondent had Berylyoung released into her custody. HHCC also uses a document titled "Standard Admission Record and Agreement" (P-1, page 1). It is divided into two parts. The top portion of a single page is filled out when a patient is admitted to HHCC. At the bottom of the page is a portion designed to elicit discharge information. In this bottom portion, under the date of discharge of 1-23-84, Respondent wrote, "Living by himself--no address." However, Respondent testified that she made this entry not on the date of discharge when she knew Berylyoung would be living with her for awhile but later in 1984 while Berylyoung was temporarily living in a motel with no permanent address, that her purpose in filling in this information at that time was to update the records; and that the statement was true when she wrote it. Neither Mrs. Heusser nor any other witness could state that this information was false when written by the Respondent or even when it was written by the Respondent. Respondent also admits filling in the "agency referral" line at the bottom of a document titled, "Discharge Summary" and dated "1-23-84" at its top. (P-1; page 3). Respondent admits that on the agency referral line she wrote in, "Living by himself at his request. Will follow up as needed. Ann Martin." Respondent claims that despite the 1-23-84 date at the top of the page, this line was added by her as a follow-up after Mr. Berylyoung left her home. Respondent asserts, and Mrs. Heusser confirms, that standard operating procedure at HHCC is that these discharge summaries usually are signed after a patient has been discharged and after a patient has actually left the facility. Mrs. Heusser specifically did not know whether this information added by Respondent was accurate when Respondent wrote it but she did not find it odd or unusual that Respondent would add more to this page as much as 2 to 3 weeks after actual discharge of any patient. Based on the testimony and evidence as a whole, Respondent's explanation that her notations on both the "Standard Admission Record and Agreement" and the "Discharge Summary" would normally be made, and in fact were actually made, by her after the patient's discharge and not on the date of discharge is entirely credible. Moreover, her adding her signature to the agency referral line of the Discharge Summary does not, under these circumstances, indicate an attempt to mislead; falsify, or defraud, so much as it suggests an attempt to indicate who had made this note and that she, Respondent, and not Berylyoung, had filled in this portion of the "Discharge Summary." On May 7, 1984, Berylyoung's outstanding bill of $1,386.90 was written off by HHCC. Attached to the write-off slip was a form collection letter dated February 29, 1984, (5 days after he had left Respondent's home), signed by Respondent on behalf of HHCC, and addressed to Berylyoung at Respondent's home address, 3101 Buena Vista Lane, Naples, Florida 33942. This form collection letter was attached as support for the write-off. (Composite P-2). Typed on the write-off slip itself was the notation, "Funds depleted. Does not qualify for state aid due mobile trailer. Present address unknown. (Discharged due to lack of funds.)" The slip was prepared by someone other than Respondent and how the information concerning lack of funds appeared is not explained. However; it may be reasonably concluded that the notation concerning Berylyoung's unknown address resulted indirectly from the previous notations made by Respondent on the "Standard Admission Record and Agreement"; on the "Discharge Summary," and on her signature on the February 29 letter. Unlike the admission and discharge documents which either require a physician's signature or are otherwise part of a patient's medical chart and so may be classified as "medical records," the debt write-off slip is not a part of a patient's medical records as that term is normally understood. The write off slip is merely a financial or business record of HHCC. This finding is consistent with Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code. Respondent signed and approved the write-off slip in her capacity as HHCC's nursing home administrator; and Respondent in fact knew where Berylyoung was living (in his own apartment) at the time she signed his financial write-off slip. Approval of these write-off slips is a routine duty and the Berylyoung slip was one of 18-20 such slips Respondent signed on the same day. Upon the foregoing scenario and Respondent's acknowledgement that she is responsible for financial documents she signs in her professional capacity, it is found that Respondent knew the address of Berylyoung when she signed the financial write-off slip but still approved the write-off of his account at least partially on the ground that his present address was unknown. While this falls short of fraud or falsification, it does constitute negligence and incompetence. Respondent did not know until approximately May; 1984 that the Department of Professional Regulation viewed the holding of a power of attorney by an employee of a nursing home to be the type of conduct subject to license discipline. By that time, she had already turned over all of Berylyoung's money to him and torn up the power of attorney. There was no evidence adduced at formal hearing that Respondent's actions resulted in HHCC being charged by the Department of Health and Rehabilitative Services with violations of Sections 400.022(1)(d) and 400.162(1) and (2) Florida Statutes and Rules lOD-29.104 and lOD-29.118(1) Florida Administrative Code as alleged in paragraph 6 of the administrative complaint. Without such proof, these allegations remain unproven and no harm to HHCC has been established except that it may be "out" $1,386.90. Even that loss, if it occurred, was not established by clear and convincing evidence because it was never clearly established that Berylyoung, if located prior to May 7, 1984, could have paid the $1,386.90. His $25;000-30 000 in the bank plus the proceeds of the sale of his car and trailer, would seem to suggest that at some earlier point in time Berylyoung's finances would have permitted payment to HHCC but no accurate timeframe for these events was established at formal hearing. There is no evidence of record that Berylyoung's health or safety were threatened or impaired by Respondent's influence or actions. Neither Mrs. Heusser, a nurse, nor Miss Gentry, a dietician, who were in the best position to have personally observed Berylyoung's condition, described a patient in danger. Ann Heusser described an elderly man who was alert most of the time, sometimes forgetful as to when he had had his last beer, sometimes belligerent, and who frequently threatened to leave HHCC because he was dissatisfied. All the nursing services did with respect to him is pass out his medication and keep a tight rein on his liquor. They reminded him to wear clean clothes and to feed himself but he could feed himself. He was on a regular diet according to Miss Gentry. His records indicate an intermediate level of care with the need to sometimes clean up loose stools. While he was in her home, Respondent prepared his meals and bathed the man, as did her mother-in-law and friend when Respondent was not there. Her activities with regard to Berylyoung's care at the motel and in his apartment are related supra. Respondent's testimony that Berylyoung was never harmed physically by his discharge is the only factual evidence of his condition after discharge. No other witness observed him after discharge. Mr. John Patrick; Jr.; the current nursing home administrator of HHCC was qualified as an expert witness in nursing home administration and stated that for a nursing home administrator to deliberately falsify medical records of a patient is considered misconduct in the practice of nursing home administration: that falsification of a patient's billing information by the nursing home administrator is considered misconduct in the practice of nursing home administration; and that it is, in Mr. Patrick's personal opinion, misconduct in the practice of nursing home administration for the administrator to falsify information on a patient's write-off slip. He also testified that he knew of no negligence or incompetence of Respondent. This type of "expert" opinion testimony is of negligible value because it invades the province of the trier of fact, because it requires conclusions of law; and because it assumes that "falsification" has been established; which it has not. The undersigned specifically finds no falsification has been established by the evidence adduced at formal hearing. (See findings of fact paragraphs 10-14 and legal determinations in the following conclusions of law concerning falsification versus negligence.) Moreover, with regard to Mr. Patrick's testimony as a whole, his misunderstanding of certain key elements of the allegations against Respondent and of much of the evidence adduced at formal hearing, his unfamiliarity with the statutes, rules, and standards of nursing home administration and what constitutes a medical record, his reluctance to specify "misconduct", his effort to substitute the word "inappropriate" for "misconduct", his desire to distinguish between his personal and professional opinions until after the Methot proffer, and his present close ties with HHCC greatly diminish the weight, credibility, and probative value of his testimony for establishing either existing standards of the profession of nursing home administration or any deviation by Respondent from such standards. Respondent is presently the director of nursing at Bentley Retirement Village, Inc. It is apparent from the testimony of Ray Smith, Executive Director and Vice-President of Bentley Village and one who works with Respondent on a daily basis; that despite any cloud which may have attached to Respondent as a result of the events giving rise to the instant proceedings, Respondent's reputation in the community for being an efficient and responsible nursing home administrator and for personal veracity has not been impaired. Mr. Smith is not qualified as an expert in the standards of nursing home administration since he has no education, training, experience, or license in that profession. Indeed, he was not tendered as an expert on such standards, however, the undersigned has carefully observed the candor and demeanor of all witnesses in this cause and finds Mr. Smith's testimony as to reputation and character to be entirely credible. His admitted desire to appoint Respondent, due to her qualifications and abilities, to the post of nursing home administrator for Bentley's newly authorized addition does not diminish the value of his testimony for reputation, character, and mitigation purposes since he is fully aware of all the charges and their basis. Professional reputation and character testimony is admissible in mitigation. Indeed, as to reputation; Mr. Smith's opinion is entirely corroborated by Petitioner's expert witness, John Patrick, who recommended Respondent for a job as a new nursing home administrator in Cape Coral during the course of the events which led up to these proceedings and by letters of commendation received by Respondent after these events. Respondent has never-acted as a trustee, conservator; or guardian for Clarence Berylyoung.
Recommendation Upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Nursing Home Administration enter a final order finding Respondent guilty of simple negligence and incompetence within Section 468.1755(1)(g) in signing the write-off slip, reprimanding her therefor, and dismissing all other charges. DONE and ORDERED this 26th day of March, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1986.
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
The Issue The issue is whether Ms. Battaglia is guilty of violations of the Nursing Practice Act by being unable to account for controlled substances at the close of her shift at a nursing home and by being under the influence of controlled substances during her shift.
Findings Of Fact All findings have been adopted except proposed findings 27 through 33, which are generally rejected as unnecessary. COPIES FURNISHED: Judith V. Battaglia 7819 Blairwood Circle North Lake Worth, Florida 38087 Lisa M. Bassett, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
Recommendation It is RECOMMENDED that: Ms. Battaglia be found guilty of the charges of unprofessional conduct in the delivery of nursing services, unlawful possession of controlled substances and impairment; She be fined $250, that she be required to participate in the treatment program for impaired nurses, that her licensure be suspended until she successfully completes that program, and demonstrates the ability to practice nursing with safety, and that she be placed on probation for a period of five years. DONE and ENTERED this 11 day of October, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 11 day of October, 1989.
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 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 issue for resolution in this case is whether Petitioner, on her application for certification as a certified nursing assistant (“CNA”) by examination, intentionally denied the fact that she previously had disciplinary action taken against her license, such that her application should be denied on the basis of attempting to obtain a CNA license by bribery, knowing or fraudulent misrepresentation,2/ or deceit.
Findings Of Fact Petitioner has applied to become a CNA pursuant to chapter 464, Florida Statutes. Respondent is the state agency responsible for reviewing applications for licensure as a CNA and determining whether such applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination. On May 7, 2010, Respondent issued a final order permanently revoking Petitioner's CNA license, in Department of Health, Board of Nursing Case No. 2009-08241, on the basis of her commission of various criminal offenses.3/ On April 20, 2014, Petitioner filed an application again seeking to be certified as a CNA by examination. On the application form, Petitioner truthfully answered "yes" to the item asking whether she had been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction, other than a minor traffic offense. She inaccurately answered "no" to the item asking if she had ever had disciplinary action taken against her certificate to practice any healthcare-related profession by the licensing authority in Florida or in any other state, jurisdiction, or country. On May 7, 2014, Respondent notified Petitioner that her application was incomplete pending Respondent's receipt of information regarding judicial disposition of her arrests, sentence completion status for each offense, and a typewritten explanation addressing each offense. Petitioner provided the requested information, including a lengthy explanation of the circumstances surrounding each of her criminal offenses. At that time, Petitioner also provided character letters, including one from the manager of Fort Pierce Health Care attesting to Petitioner's trustworthiness and diligence in performing her job-related duties at that facility. On August 8, 2014, Respondent issued the Notice of Intent to Deny ("Notice") Petitioner's application for certification as a CNA by examination. The Notice cited two grounds for denial: (1) having a license to practice nursing or any healthcare-related profession acted against by a licensing authority; and (2) attempting to obtain a nursing license by bribery, misrepresentation, or deceit, by having incorrectly answered "no" to the application question regarding the previous revocation of her CNA license. At the hearing, Petitioner testified that her incorrect answer regarding previous disciplinary action against her license was a mistake. She explained that she had received assistance in preparing her application from personnel in the CNA training program from which she had taken classes to prepare for the CNA certification examination. Training personnel filled out the application form and Petitioner provided the accompanying written information. Petitioner quickly reviewed the application form before signing it and in doing so, inadvertently overlooked the incorrect response to the item inquiring about previous licensure disciplinary action. When Respondent issued its Notice denying her application on that basis, Petitioner filed a revised application, dated August 30, 2014, correcting the response to that item to reflect the previous disciplinary action against her CNA license. She provided an accompanying written explanation regarding the mistaken response and the previous action revoking her CNA license due to her criminal history.4/ The undersigned finds credible and persuasive Petitioner's explanation that her incorrect response to the item regarding previous licensure disciplinary action was a mistake. This determination is bolstered by Petitioner's truthful correct answer on the application regarding her criminal history, which was the basis for the previous discipline against her license. Indeed, had Petitioner intended to conceal the previous disciplinary action against her license, it is likely she also would have answered "no" to the questions regarding her criminal history, which gave rise to the discipline. The undersigned rejects Respondent's position that Petitioner was intentionally untruthful——i.e., lied——on her April 20, 2014, license application about the previous disciplinary action against her license. For the reasons discussed above, it is determined that Petitioner has shown, by a preponderance of the evidence, that she did not attempt to obtain a CNA license by bribery, knowing or fraudulent misrepresentation, or deceit, in violation of sections 464.018(1)(a) or 456.072(1)(h). At the final hearing, Petitioner expressed sincere contrition and remorse for her criminal offenses, noted that she already had paid the price for such conduct by having her license previously revoked, and expressed hope and desire that she could be relicensed to practice a profession that she loves.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Health, Board of Nursing, enter a final order granting Petitioner's application for certification as a certified nursing assistant by examination. DONE AND ENTERED this 8th day of May, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2015.
