The Issue The issue is whether the Inverrary Retirement Center should be fined $500.00 for violation of Rule 10A-5.19(5), Florida Administrative Code, as it existed on January 16, 1986?
Findings Of Fact The Inverrary Retirement Center is an adult congregate living facility licensed under Chapter 400, Florida Statutes. Verna Smith is a certified nursing assistant who was employed by the Inverrary Retirement Center on January 16, 1986. At 4:00 A.M. on that day, Smith found resident A.P. sleeping on the floor in his room. Mr. A.P. was a 75 year old amputee with diabetes and a heart condition which required that he use a pacemaker. Ms. Smith spoke to him, requested that he return to bed, but he refused. Mr. A.P. engaged in unusual conduct because he wished to life at home with his wife, who was no longer able to care for his needs. Mr. A.P. thought that if he were difficult, the Inverrary Retirement Center might ask that he leave, which would allow him to return home. When Ms. Smith found Mr. A.P. on the floor he was not in obvious distress and offered no complaints. Ms. Smith did not lift Mr. A.P. off the floor and return him to his bed because she was alone during that shift and was not able to lift him. She did not check Mr. A.P.'s pulse or respiration or contact her supervisor. Ms. Smith held a nursing assistant certificate issued by the Florida Department of Education, certificate number 0585-589329565. At about 6:30 A.M., Ms. Smith was preparing to dress Mr. A.P., but he found him unresponsive. The day nursing shift arrived at about 6:45 and Ms. Lorna Paisley was called by Ms. Smith. Ms. Paisley checked Mr. A.P. and found neither respiration nor pulse. Ms. Paisley called the emergency medical services team at 6:55 A.M., which arrived at 6:58 A.M. When the EMS personnel arrived, 15 to 20 minutes had elapsed since Ms. Paisley had begun her shift. The EMS team found that Mr. A.P. was dead and obviously had been dead for some time. Ultimately, Ms. Smith was fired for not handling the matter in accordance with institutional policies. After she was fired, Inverrary Retirement Center obtained proof that Smith had a current Department of Education certification as a nursing assistant while she was employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint against Retirement Center of America, Inc., doing business as Inverrary Retirement Center be DISMISSED. DONE AND ORDERED this day of April, 1987, in Tallahassee, Florida. WILLIAM H. DORSEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4718M The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Sentence 1, rejected as a statement of issues. Sentence 2, covered in Finding of Fact 6. That Ms. Smith was fired is covered in Finding of Fact 7, and the remainder of that proposal constitutes an inference which is rejected. Sentence 1, covered in Finding of Fact 2. Sentences 2-4, rejected as unnecessary. Covered in Finding of Fact 6. Rejected as argument, not a finding of fact. Rejected as unnecessary. Sentence 1, rejected as unnecessary. Sentences 2-4, covered in Finding of Fact 6. Sentence 5, rejected as unnecessary. That Vera Smith was the only employee on duty is covered in Finding of Fact 4, along with the reason Mr. A.P. was not lifted to his bed. The remainder is rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 7. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Finding of Fact 1. 3(a) Sentences 1 and 2, covered in Findings of Fact 2 and 3. Sentence 3, covered in Finding of Fact 4. Sentences 4-6, covered in Finding of Fact 6. 3(b). Sentence 1, rejected because only Vera Smith was on duty at 4:00 a.m. on January 16, 1986. Her certification by the Department of Education, however, was sufficient to meet staffing standards prescribed by HRS rule. No finding is made with respect to Ms. Paisley's certification because it is irrelevant. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 North West 167th Street Miami, Florida 33014 Dr. Martin Marenus 5811 North West 28th Street Lauderhill, Florida 33313 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Respondent, Jo Ann Murphy, is a licensed registered nurse in the State of Florida, holding license number 69367-2. The Respondent received her nursing education and training in Albany, Georgia, and became a registered nurse in Florida in 1973. In 1977 she became certified by the American College of Obstetrics and Gynecology as a nurse clinician. In 1981 she was certified as a clinical nurse practitioner in ambulatory gynecology and obstetric care. Until 1979, the Respondent was head nurse of OB/GYN Labor and Delivery, Postpartum Unit, at West Florida Hospital in Pensacola. From 1979 to 1983 she was office nurse and nurse practitioner in the office of Thomas H. Wyatt, M.D., in Pensacola. The Respondent became employed at University Hospital in Pensacola on April 25, 1983, primarily because of her knowledge in the field of Caesarian Sections. She was terminated less than one month later, on May 23, 1983, while still in her probationary period, for unsatisfactory nursing performance. On May 18, 1983, another registered nurse on the morning shift with the Respondent, testified that she smelled alcohol on the Respondent's breath at 7:30 A.M. Although this witness worked with the Respondent each day, this is the only time she contends that she smelled alcohol on her breath, and this witness did not see the Respondent stagger or exhibit any other symptom of alcohol use. This witness testified that the Respondent showed a lack of initiative, but that when the Respondent was told to do something she would do it well, and that she never had any concern regarding the Respondent's ability to function as a nurse. Two other hospital employees, a Licensed Practical Nurse (LPN) and a nurses aide, testified that they smelled alcohol on the Respondent's breath on a date unknown. The nurses aide, however, never saw the Respondent stagger, or exhibit any other sign of intoxication, and she says she only smelled alcohol on the Respondent's breath on one occasion. The LPN testified that she also saw the Respondent sitting at her desk in a daze or stupor, but this symptom was not observed or described by any other witness. Both of these witnesses worked with the Respondent each day, but only claimed to have smelled alcohol on her breath on one occasion. The Respondent denied having any alcohol to drink on or before any shift that she worked while employed at University Hospital. Her husband and her daughter confirmed that the Respondent had not consumed alcohol on the morning of May 18, 1983, before going to work. Another witness, a physician who was in the residency program at University Hospital while the Respondent worked there, had the opportunity to work in close contact with the Respondent on five or six occasions in the labor and delivery suite, and never smelled alcohol on her breath, or saw her stagger or exhibit any other sign of intoxication. This doctor found her to be alert, she performed her functions with no problems, and he had no complaints with her. The nursing director at University Hospital, who conducted the termination interview of the Respondent, observed what she characterized as red, blotchy skim on the Respondent, and the Respondent appeared to be nervous. However, this witness did not smell alcohol on the Respondent's breath, and she saw no other symptoms of alcohol use. Both the Respondent and the physician who employed her for four years confirmed the Respondent's skin blotches, but this is an inherited tendency having nothing to do with medical problems or alcohol use. The nursing director and the patient care coordinator both testified that the Respondent stated at her termination interview that she used to have an alcohol problem, but that she had been rehabilitated. The Respondent denies having made such a statement. Another physician, in addition to the one mentioned in paragraph 7 above, who was in labor and delivery with the Respondent more than ten times, and probably every day she worked at University Hospital, did not smell alcohol on her breath although they worked together closely. This witness found the Respondent's nursing abilities to be competent and very professional. Likewise, the physician who employed the Respondent for four years had no problems with her or her work, he found her prompt and attentive in her duties, and an excellent nurse. On another occasion, not specifically dated, but separate from the instances of the alleged alcohol breath, the Respondent is charged with having "defied an order to stay with a critically ill patient". The evidence is completely devoid of any explicit order given to the Respondent to stay with any patient during the time she worked at University Hospital. Instead, it is contended that the Respondent violated what are characterized as "standing orders" that a nurse should not leave a patient who has been assigned to her. These "standing orders" are supposed to have been set forth in policy manuals given to employees of the hospital, but no such manual was offered in evidence; nor was the nature of the "standing orders" explicitly described by the witnesses. On the one occasion when the Respondent is charged with defying orders to stay with a patient, the patient was being attended also by an LPN when the Respondent left to telephone the patient's physician. In the same general area, but behind the curtains of an adjoining cubicle, another registered nurse was attending a patient there. The patient whom the Respondent and the LPN attended went into deceleration after the Respondent had left to telephone her physician. The LPN needed help with the oxygen and to turn the patient. The other registered nurse in the adjoining cubicle came in and the patient was stabilized. The Respondent returned in a few minutes. It is below minimum standards of acceptable and prevailing nursing practice for a registered nurse to leave a patient, whose condition is considered critical, in the care of an LPN. Yet the patient was not in critical condition when the Respondent left to call the physician, and there was another registered nurse in close proximity who responded when the need for her arose. Thus, there is not sufficient competent evidence to support a finding of fact (1) that the Respondent either had alcohol on her breath or was in a drunken condition while on duty; (2) that the Respondent defied an order to stay with a critically ill patient; or (3) that the Respondent left a patient whose condition is considered critical in the care of an LPN. The competent evidence in the record supports a finding of fact (1) that the Respondent did not have alcohol on her breath at any time while employed at University Hospital; (2) that the Respondent did not defy an order to stay with a critically ill patient; and (3) that the Respondent did not leave a patient whose condition is considered critical in the care of an LPN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint against the Respondent, Jo Ann Murphy, be dismissed. THIS RECOMMENDED ORDER entered this 10th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 10th day of January, 1985. COPIES FURNISHED: Julia P. Forrester, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Thomas C. Staples, Esquire P. O. Box 12786 Pensacola, Florida 32575 Ms. Helen P. Keefe Executive Director, Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32202 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s certified nursing assistant license.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing assistance in Florida. See § 20.43 and chs. 456 and 464, Fla. Stat. Respondent is a certified nursing assistant (“CNA”) in the State of Florida, having been issued certification number CNA 16962. The Department seeks to sanction Respondent based on an incident that occurred on January 16, 2018. The Department’s Administrative Complaint specifically alleges that “Respondent struck Patient J.H. at least one time on Patient J.H.’s head.” The Department asserts that Respondent violated section 464.018(1)(h) by committing “unprofessional conduct” as defined by a rule of the Board of Nursing. Rule 64B9-8.005(13) defines “unprofessional conduct” to include using force against a patient or striking a patient. Section 464.204 authorizes the Department to discipline Respondent up to and including permanent revocation or suspension of her assistant nursing certificate. On the date of the incident, Respondent was working as a CNA at Avante, a rehabilitation center located in Melbourne, Florida. At that time, J.H. was a patient on hospice care at Avante. J.H. was staying in a semi-private room with two beds. J.H.’s roommate was D.D. At the final hearing, the Department represented that J.H. is mentally incapacitated. J.H.’s records from Avante indicate that she suffers from a variety of ailments which have resulted in an altered mental status, impaired ability to communicate, and impaired ability to control sporadic movements of her limbs. (Both D.D. and Respondent testified that J.H. had difficulty speaking.) Therefore, she is not able to testify about the incident. D.D., however, was present in the room on January 16, 2018. D.D. testified at the final hearing about what she observed between Respondent and J.H. on the evening of January 16, 2018. Initially, D.D. explained that the beds in the room she shared with J.H. were positioned side-by-side, about four-to-six feet apart. The beds were also separated by a privacy curtain. A sink was located on the wall opposite the beds. Above the sink was a mirror. When the encounter between Respondent and J.H. occurred, D.D. was sitting at the sink facing the mirror. Respondent was tending to J.H. in her bed. At some point, D.D. heard a sound coming from J.H.’s bed. When she turned to look, D.D. saw that J.H. seemed annoyed, and Respondent’s glasses were askew on top of her head. Respondent then left the room. About an hour later, after D.D. had returned to her bed, D.D. stated that Respondent reentered the room. Respondent walked over to J.H. who was lying in her bed. D.D. testified that she then heard Respondent say, “Don’t you ever hit me again.” D.D. then saw Respondent hit J.H. twice on her forehead with her balled-up fist. D.D. did not see J.H. move or react after Respondent struck her. At the final hearing, D.D. disclosed that she did not directly observe the incident because she was sitting in her bed, and the privacy curtain obstructed her line of sight. Instead, D.D. revealed that she watched Respondent’s actions through the mirror over the sink. D.D. commented, however, that when she sat up in her bed, she had a clear view through the mirror to J.H.’s bed. D.D. exhorted that she had no difficulty seeing Respondent hit J.H. D.D. was astounded by what she saw. She had no way of notifying anyone of the incident that night. The next morning, however, D.D. promptly reported the incident to her physical therapist. No evidence indicates that J.H. suffered any injuries from the encounter. At the final hearing, Respondent adamantly denied hitting J.H. Respondent further denied that she has ever abused a patient in her care or been accused of hitting a patient. Respondent asserted that she did not do anything wrong involving, or use any force against, J.H. Respondent stated that she has held a CNA license for over 20 years. She has worked at Avante since 2007. Respondent explained that when she approached J.H. in her bed on the evening of January 16, 2018, she discovered that J.H. had wet herself. Therefore, Respondent proceeded to change her. In that process, J.H. knocked Respondent’s glasses off her head. The glasses fell onto the bed. Respondent then reached down, grabbed her glasses, and replaced them on her face. She then finished changing J.H. and left the room. At the final hearing, Respondent claimed that D.D.’s statement is false. Respondent declared that D.D. is confused about the incident and, maybe, does not care for Respondent. Respondent also asserted that, because she was sitting in her bed, D.D. could not accurately see what happened when she changed J.H. Following the incident, Avante terminated Respondent’s employment. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent hit J.H. on January 16, 2018. Accordingly, the Department failed to meet its burden of proving that Respondent committed “unprofessional conduct,” which would support discipline under section 464.204, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing enter a final order dismissing the Administrative Complaint against Respondent, Jacqueline Jean. DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 30th day of January, 2019.
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent for violation of statutory provisions regarding the practice of nursing. By Administrative Complaint the Respondent was charged with unprofessional conduct and with being unable to practice nursing with reasonable skill and safety to patients.
Findings Of Fact At all times material hereto, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0711261. Respondent was employed at Humana Hospital Cypress in Pompano Beach from on or about October 10, 1988, until on or about March 10, 1989. During her employment at Humana Hospital Cypress, Respondent was absent from her duties without giving notice on four occasions, was absent with notice on one occasion, and was on sick leave on five different occasions. These absences constitute an excessive number of absences. The pattern of the absences also raises concerns as to whether the absences are caused by behavioral problems. During her employment at Humana Hospital Cypress, Respondent was observed while on duty by several Charge Nurses (Dysen, Fabella, and Keough) to be extremely nervous; jumpy; on the verge of tears or crying when asked what was wrong; to be constantly complaining about being tired and hungry; to be frequently looking very tired, taking naps during lunch break, and not waking up in time for duty; to be frequently flailing her arms around, talking verbosely in high volumes, and speaking about subject matter inappropriate at a nurse's station; and exhibiting generally unpredictable and worrisome behavior. Lynn Whitehead, R.N., has been a staff nurse on the Substance Abuse floor of Humana Hospital Cypress for approximately six years. During February of 1989, Nurse Whitehead spoke to Respondent after Respondent had a hysterical crying reaction to learning that she failed the Telemetry Nursing course. During Nurse Whitehead's discussion with Respondent, Respondent admitted to Nurse Whitehead that Respondent used drugs and had been to some rehabilitation group meetings in the past. Respondent's behavior in her discussions with Nurse Whitehead - extreme anxiety, pacing, upset, complaints of hunger and exhaustion - along with Respondent's excessive absences, were consistent with drug abuse behavior based on Nurse Whitehead's knowledge and experience. On or about February 28, 1990, Respondent was asked by Nurse Fabella to submit to a urinalysis based on Fabella's observation of Respondent's erratic and unusual behavior which led Nurse Fabella to suspect that drug use might be involved. Respondent refused to submit to a urinalysis and stated the reason was because she knew marijuana would show in her urine. Nurse Fabella counseled Respondent about her erratic behavior, excessive absences, refusal to submit to a urinalysis, and unprofessional nursing conduct, on or about February 28, 1989. Subsequent to the counseling by Nurse Fabella, Respondent failed to keep an appointment with Nurse Cruickshank to discuss her situation and the decision was made to terminate Respondent. Amy Mursten, Investigative Specialist for the Department of Professional Regulation, interviewed Respondent for the purpose of conducting an investigation into her behavior and suspected drug abuse. Ms. Mursten discussed the Intervention Project for Nurses which could help rehabilitate the Respondent and save her nursing practice, but Respondent refused this help and denied having a problem. On at least two occasion, Respondent failed to act professionally or responsibly towards a patient and would have given inappropriate dosages or types of medications to the patients had someone not intervened. The Respondent's behavior patterns described above constitute a departure from minimal standards of acceptable and prevailing nursing practice. The Respondent's behavior patterns described above demonstrate an inability to practice nursing with reasonable skill and safety to patients by reason of use of drugs or narcotics or as a result of her mental condition.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Nursing enter a final order in this case concluding that Respondent has violated Section 464.018(1)(h), Florida Statutes, by engaging in unprofessional conduct, and has violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients. It is further recommended that the Board's final order suspend Respondent's license until Respondent has demonstrated to the Board that Respondent is able to practice nursing with reasonable skill and safety to patients and, once Respondent has demonstrated her ability to so practice, place Respondent on probation for a period of one year subject to such requirements as may appear to the Board to be necessary to assure that Respondent continues to practice with reasonable skill and safety to patients. DONE and ENTERED in Tallahassee, Leon County, Florida, this 30 day of April 1990. MICHAEL M. PARRISH 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 30 day of April 1990.
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 Is proposed rule 64B9-4.009 of the Board of Nursing an invalid exercise of delegated legislative authority? Section 120.52(8), Florida Statutes.
Findings Of Fact The Stipulated Facts The Joint Practice Committee (the Committee) was created by Section 464.003(3)(c), Florida Statutes. The statute charges the Committee to approve those acts of medical diagnosis and treatment, prescription, and operation that may be performed by Advance Registered Nurse Practitioners (ARNPs) under the general supervision of a practitioner licensed under Chapters 458, 459 or 466, Florida Statutes, within the framework of standing protocols. On October 24, 1998, the Committee met to consider whether prescription of controlled substances was an appropriate medical act to be approved for ARNPs under proper protocol. [See minutes of meeting, Exhibit A.] The Committee was asked to review the report by the Statewide Task Force Committee (a separate committee) mandated by the 1996 legislature. Members of the Committee requested additional information before voting on the issues, including the following: A summary of votes taken at the Statewide Task Force meetings Testimony by physician members of the Task Force Committee on the safety of prescription of controlled substances by ARNPs. ARNPs protocols, including samples from practicing Florida ARNPs and protocol requirements from other states. National information on ARNP prescriptive practice for controlled substances, including the annual report from the Nurse Practitioner Journal, information on prescriptive practice from the National Council of State Boards of Nursing, and a state-by-state summary of prescriptive practices. Pharmacology syllabi from medical schools and ARNP programs. National Practitioner Data Bank information on safe practice. Copy of correspondence from the state pharmacy association. DEA Handbook for Mid-Level Providers. On December 8, 1998, the Committee met to consider the prescriptive authority and to review information requested at the October 24, 1998 meeting. [See Exhibit C, minutes of the December 8, 1998 meeting and Composite Exhibit D, materials provided to the Committee]. The Committee also took testimony from persons attending the Committee meeting. After review of the material and consideration of the testimony, the Committee voted as follows: To request the Department of Health to seek a written opinion from the Attorney General on the question: Can the prescribing of controlled substances by Nurse Practitioners under protocol be authorized by rule or must there be a legislative change. To authorize prescription of schedule II-V controlled substances by ARNPs under protocol. To require continuing education on prescribing, record-keeping, discouraging diversion of dangerous drugs approved by the Board of Nursing prior to prescribing controlled substances under protocol. On January 25, 1999, the Department of Health requested an opinion from the Attorney General on the following questions: Whether the Board may adopt a rule pursuant to section 464.003(3), Florida Statutes, authorizing the prescription of controlled substances by Advanced Registered Nurse Practitioners without conflicting with the prescribing requirements found in chapter 893, Florida Statutes. Whether it is necessary to obtain a legislative change to add Advanced Registered Nurse Practitioners to the list of 'practitioners' authorized to prescribe controlled substances under chapter 893, Florida Statutes, prior to adoption of a rule that would allow prescriptions of controlled substances by Advanced Registered Nurse Practitioners? At its regularly scheduled Board meeting on April 14, 1999, the Board voted to proceed with promulgation of a rule to implement the decision by the Committee. On May 17, 1999, the Attorney General's Office responded to the Department of Health by stating that a formal opinion would not be given. In Volume 25, Number 21 of the Florida Administrative Weekly, which was issued May 28, 1999, the Board published its notice of development of proposed rule 64B9-4.009. No rule development hearing was requested. The Board set a rule workshop for June 26, 1999, to discuss changes to Chapter 64B9-4, Florida Administrative Code. At the rule workshop, the Board received a letter dated June 14, 1999, from the FMA, presented to the Board, containing written objections to proposed rule 64B9-4.009. On June 25, 1999, the Secretary for the Department of Health advised the Board that the Department's General Counsel would be preparing a legal opinion on whether current law would allow the rule to be adopted. On July 23, 1999, General Counsel for the Department of Health issued his legal opinion to the Secretary that absent amendment to Chapter 893, Florida Statutes, neither the Joint Practice Committee nor the Board of Nursing can authorize ARNPs to prescribe controlled substances. In Volume 25, Number 29 of the Florida Administrative Weekly, which was issued July 23, 1999, the Board published its notice of proposed rule 64B9-4.009. The rule hearing was set for October 12, 1999. As voted by the Committee, the rule provides that an ARNPs' prescriptive authority includes the prescription of Schedule II, III, IV, and V controlled substances after appropriate continuing education. On August 17, 1999, the Joint Administrative Procedures Committee issued a letter to the attorney for the Board commenting that the proposed rule appears to contravene Section 893.05, Florida Statutes. On September 25, 1999, the Committee held a telephone conference. (See Exhibit F, Joint Committee Minutes, Conference call September 25, 1999.) The Committee declined to reconsider the decisions made at the December 1998 meeting. On October 12, 1999, a public hearing requested by FMA was held, at which the Board accepted written and oral testimony. (See Exhibit G, the transcript of the public hearing and Composite Exhibit H, the written comments provided on or before the date of the public hearing including a letter dated October 11, 1999, from the FMA and numerous specialty medical societies presenting written objections to the rule.) On December 8, 1999, the Board held an additional public hearing to consider the transcript of rule hearing on the proposed rule. The Board voted to proceed with promulgation of the proposed rule. Other Facts Agreed Upon The Board admits for purposes of consideration of this case that FMA et al. have standing to bring this rule challenge. The only state agency affected is the Board, 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Board is responsible for the administration of Chapter 464, Florida Statutes, and has implemented its provisions, in part, through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. Facts Related to Standing The respective parties have not contested the veracity of the factual statements pled concerning standing of the respective parties. Therefore, it is accepted that the factual information concerning the organizations and their purposes, as pled, are accurate for fact-finding purposes. Those facts as pled are as follows: The only state agency affected is Respondent, State of Florida, Department of Health, Florida Board of Nursing ("the Board"), 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Department and the Board are responsible for the administration of Chapter 464, and have implemented its provisions in part through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. The address of the Florida Medical Association (FMA) is 113 East College Avenue, Tallahassee, Florida 32301. The FMA is organized and maintained for the benefit of the approximately 16,000 licensed Florida physicians who comprise its membership. One of the primary purposes of the FMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Osteopathic Medical Association (FOMA) is 2007 Apalachee Parkway, Tallahassee, Florida. The FOMA is organized and maintained for the benefit of the approximately 1,800 licensed Florida osteopathic physicians who comprise its membership. One of the primary purposes of the FOMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Family Physicians (FAFP) is 6720 Atlantic Boulevard, Jacksonville, Florida 32211. FAFP is organized and maintained for the benefit of the approximately 3,800 licensed Florida family physicians who comprise its membership. One of the primary purposes of the FAFP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Physicians - American Society of Internal Medicine (FCACP-ASIM) is 2589 Park Street, Jacksonville, Florida 32204. FCACP-ASIM is organized and maintained for the benefit of the approximately 4,500 licensed Florida internists who comprise its membership. One of the primary purposes of the FCACP-ASIM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Surgeons (FC-ACS) is 2589 Park Street, Jacksonville, Florida 32204. FC-ACS is organized and maintained for the benefit of the approximately l,000 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FC-ACS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Surgical Society (FSS) is Post Office Box 536544, Orlando, Florida 32853. FSS is organized and maintained for the benefit of the approximately 200 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FSS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Psychiatric Society (FPS) is 524 East Park Avenue, Tallahassee, Florida 32301. The FPS is organized and maintained for the benefit of the approximately 800 licensed Florida psychiatrists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Pain Medicine (FAPM) is 335 Beard Street, Tallahassee, Florida 32303. The FAPM is organized and maintained for the benefit of the approximately 100 licensed Florida pain management physicians who comprise its membership. One of the primary purposes of the FAPM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Anesthesiologists (FSA) is 355 Beard Street, Tallahassee, Florida 32301. The FSA is organized and maintained for the benefit of the approximately 1,800 licensed Florida anesthesiologists who comprise its membership. One of the primary purposes of the FSA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Ophthalmology (FSO) is 1133 West Morse Boulevard, Suite 201, Winter Park, Florida 32789. The FSO is organized and maintained for the benefit of the approximately 400 licensed Florida ophthalmologists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Ob-Gyn Society (FOGS) is 355 Beard Street, Tallahassee, Florida 32303. The FOGS is organized and maintained for the benefit of the approximately 700 licensed Florida ob-gyns who comprise its membership. One of the primary purposes of the FOGS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida College of Emergency Physicians (FCEP) is 3717 South Conway Road, Orlando, Florida 32812. The FCEP is organized and maintained for the benefit of the approximately 800 licensed Florida emergency medicine physicians who comprise its membership. One of the primary purposes of the FCEP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. Intervenor, Florida Nurses Association (FNA), is a professional association located at 1235 East Concord Street, Orlando, Florida 32803-5403 representing over 7,000 Registered nurses (RNs) licensed by the State of Florida, of which more than 1,000 are certified as Advanced Registered Nurse Practitioners (ARNPs). FNA's members are directly regulated by the Respondent and substantially affected by proposed rule 64B9-4.009, which grants additional prescriptive authority to certain ARNPs under protocol with licensed physicians. On behalf of its members, FNA serves as a professional advocate before several governmental bodies, including the Board, and actively participated in support of the rule- making process which produced proposed rule 64B9-4009. Intervenor, Florida Association of Nurse Anesthetists, is a Florida nonprofit corporation and professional organization representing the legal, legislative, and professional practice interests of more than 1500 Certified Registered Nurse Anesthetists (CRNAs) practicing throughout Florida, all of whom are Advanced Registered Nurse Practitioners (ARNPs). The address of the Florida Association of Nurse Anesthetists is Post Office Box 150127, Altamonte Springs, Florida 32715-0127. CRNAs are expressly authorized by Florida law to order and administer anesthetic agents. Nearly all the anesthetic agents utilized by CRNAs are controlled substances. Under current law, Florida CRNAs cannot prescribe controlled substances, and are unable to obtain a registration number from the United States Drug Enforcement Administration (DEA). A DEA registration number is a prerequisite to prescribing controlled substances. The proposed rule would permit Florida CRNAs to prescribe controlled substances, and obtain a DEA registration number. The ability to prescribe controlled substances would have a direct impact on the practice of Florida CRNAs, in that it would allow CRNAs to prescribe anesthetic agents and post- operative medications for patients. The Proposed Rule 64B9-4.009 Functions of the Advanced Registered Nurse. All categories of Advanced Registered Nurse Practitioner may perform functions listed in Section 464.012(3), Florida Statutes. The scope of practice for all categories of ARNPs shall include those functions which the ARNP has been educated to perform including the monitoring and altering of drug therapies, and initiation of appropriate therapies, according to the established protocol and consistent with the practice settings. Advanced Registered Nurse Practitioners' prescriptive authority includes the prescription of Schedule II, III, IV and V controlled substances under appropriate protocol. Advanced Registered Nurse Practitioners may prescribe controlled substances only after the Advanced Registered Nurse Practitioner demonstrates completion of a Board-approved course in prescribing controlled substances. The Board approves 'Clinical, Legal, & Ethical Issues in Prescribing Abusable Drugs,' sponsored by the University of South Florida College of Medicine, Courses meeting the following criteria will also be approved: The course must consist of 22 contact hours of formal classroom instruction; The course must include the following education objectives; understand basic pharmacokinetic principles relating to pharmacological agents. describe basic pharmacology of drugs subject to abuse, including opiates, sedative-hypnotics, psychotropic agents, steroids and stimulants. assess the need for and proper use of drugs subject to abuse in managing both acute and/or chronic pain or mood disorders. achieve an improved understanding of drug abuse, drug dependence and addiction. identify the legal basis of ration and state drug control policies. discuss record keeping, enforcement agency practices and problem avoidance. Specific Authority 464.003, 464.006, 464.012, Florida Statutes. Law implemented 464.003, 464.012, Florida Statutes.
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.
