The Issue Petitioner seeks licensure by examination as a registered nurse in the State of Florida. The issue for disposition here is whether her application should be granted.
Findings Of Fact Vergella Joseph Anicet was born in Haiti on July 26, 1957. After high school and university studies she attended the National School of Nursing in Port-Au-Prince, Haiti, from 1982- 1985, and graduated in 1985. Ms. Anicet emigrated to Miami, Florida, in November 1985. After approximately a year she moved to Central Florida and now is residing in Orlando. In 1990, Ms. Anicet applied for licensure as a registered nurse in Florida. Upon her request, the nursing school in Haiti sent a transcript directly to the Board of Nursing. The Board approved her to work as a graduate nurse until she could take the licensing examination. After she failed the examination Ms. Anicet lost her graduate nurse permit but qualified for licensure as a certified nursing assistant. In 1993, she passed the licensed practical nurse (LPN) examination and has been employed as an LPN since then. Ms. Anicet applied again for licensure as a registered nurse by examination in February 1999. As part of the process of that application she requested the nursing school in Haiti to send her transcript to the Board of Nursing. The nursing school sent Ms. Anicet's transcript directly to the Board. However, the transcript sent in 1999 varied in many material aspects from the version that the Board received from the school in 1990. The discrepancies are in the described courses, numbers of hours completed, and in the clinical practice experiences described in the two transcripts. From the record it is impossible to determine which is the correct transcript. In response to a request by Ms. Anicet's attorney, the National School of Nursing in Port-Au- Prince sent a letter to the Board of Nursing in October 1999, in an attempt to explain the two transcripts. As best as can be determined, the school revised its curriculum in November 1997 and somehow readjusted the official transcript to conform to the revisions. However, there is no key to how the adjustments were made. The differences are not attributable to different translations, French to English, of the two documents.¹ There is no evidence of any fraud by Ms. Anicet. The peculiar documents came directly to the Board from the school in Haiti. The Board has had problems verifying the coursework of other applicants who are graduates from this same school. The evidence establishes that Ms. Anicet graduated from nursing school but does not establish the courses or program which she completed.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Board of Nursing enter its final order denying Ms. Anicent's application without prejudice to her right to reapply when she is able to obtain an appropriate credentialing report. DONE AND ENTERED this 18th day of October, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2000.
The Issue The issues are: 1) whether, based on the 2017 passing rate of graduates of Petitioner's prelicensure nursing education program (Program) taking the National Council of Licensing Examination (NCLEX), Respondent is required to return the Program from probationary to approved status, pursuant to section 464.019, Florida Statutes; and 2) whether, in declining to return the Program to approved status, Respondent has unlawfully relied on an unadopted rule, in violation of section 120.57(1)(e). At Petitioner's request, the parties presented evidence concerning constitutional challenges that Petitioner intends to present to a district court of appeal.
Findings Of Fact The Program is a prelicensure professional nursing education program that terminates with an associate degree. Respondent approved the Program in 2013, thus authorizing Petitioner to admit degree-seeking students into the Program, as provided in section 464.019. As provided by section 464.019(5)(a)1., the passing rate of the Program's graduates taking the NCLEX for the first time must meet or exceed the minimum passing rate, which is ten points less than the average passing rate of graduates taking the NCLEX nationally for the first time. Until June 23, 2017, the passing rate of a Florida program was based only on first-time test- takers who had graduated within six months of taking the exam (New Graduates). Chapter 2017-134, sections 4 and 8, Laws of Florida, which took effect when signed into law on June 23, 2017 (Statutory Amendment), removes the six-month restriction, so that the passing rate of a Florida program is now based on all first-time test-takers, regardless of when they graduated (Graduates). The statutory language does not otherwise address the implementation of the Statutory Amendment. For 2015 and 2016, respectively, the minimum passing rates in Florida were 72% and 71.68%, and the Program's New Graduates passed the NCLEX at the rates of 44% and 15.79%. As required by section 464.019(5), Respondent issued the Probationary Order. The Probationary Order recites the provisions of section 464.019(5)(a) specifying the applicable passing rate, directing Respondent to place a program on probation if its graduates fail to pass at the minimum specified passing rates for two consecutive years, and mandating that the program remain on probation until its passing rate achieves the minimum specified rate. The Probationary Order details the 2015 and 2016 passing rates of Petitioner's relevant graduates and the minimum passing rates for these years. The Probationary Order makes no attempt to describe the condition of probation, which might have included a reference to New Graduates, other than to refer to section 464.019(5)(a)2., which, unchanged by the Statutory Amendment, specifies only that a program must remain on probation until and unless its graduates achieve a passing rate at least equal to the minimum passing rate for the year in question. For 2017, the minimum passing rate for a Florida program was 74.24%. If, as Respondent contends, the new law applies to all of 2017, six of the fifteen of the Program's Graduates failed the NCLEX, so the Program's passing rate was inadequate at 60%. If, as Petitioner contends, the old law applies to all of 2017, twelve of the Program's test-takers were New Graduates, and only three of them failed, so the Program's passing rate was adequate at 75%. To discredit Respondent's retroactive application of the new law to January 1, 2017, which produced its calculation of a 60% passing rate, Petitioner, relying on section 120.57(1)(e)1., has shown that this implementation of the Statutory Amendment constitutes an unadopted rule that enlarges, modifies, or contravenes the Statutory Amendment, as detailed in the final order issued in DOAH Case 19-0442RU. But no more credit can be given to Petitioner's contention that the Statutory Amendment may only be applied prospectively, starting on January 1, 2018. Petitioner grounds this argument in the timing of Respondent's meeting in early 2018 to determine the 2017 passing rate for the Program: because the meeting took place in 2018, Respondent could not apply the new law until 2018. It makes no sense that an agency could control the effective date of a statute by timing when it convenes a meeting to apply the statute. Even if Petitioner's argument were an attempt to claim a vested interest in the calculation methodology set forth in the Probationary Order, it is unpersuasive. In stating the condition of probation, the Probationary Order does not incorporate textually the notion of New Graduates, but instead refers to the statute, which was not amended, that sets the passing rates. The condition of probation does not even refer to the statute that, amended by the Statutory Amendment, identifies which graduates to include in calculating the passing rate. Assigning meaning to the effective date of the Statutory Amendment, the passing rate of Petitioner's graduates in 2017 was inadequate. From January 1 through June 22, 2017, five of the Program's test-takers were New Graduates and they all passed. From June 23 through December 31, 2017, four of the eight Graduates taking the NCLEX passed the test. Combining these results for all of 2017, the Program's passing rate was nine divided by thirteen, or 69%--more than five points below the minimum passing rate for 2017.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order extending the probationary status of the Program for 2018. DONE AND ENTERED this 29th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2019. COPIES FURNISHED: Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Shavon L. Jones, Esquire Sec Outsourcing, LLC 14311 Biscayne Boulevard, Suite 2851 Miami Beach, Florida 33154 (eServed) Timothy Frizzell, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Marlene K. Stern, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Wendy Brewster-Maroun, Esquire Brewster-Maroun Spradley, PLLC 18520 Northwest 67th Avenue, Suite 259 Hialeah, Florida 33015-3302 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Jody Bryant Newman, EdD, EdS Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D02 Tallahassee, Florida 32399 Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Having reviewed the entire record before it, the Board finds that the Findings of Fact as contained in the Hearing Officer's Recommended Order are adequately supported by competent, substantial evidence and hereby adopts those Findings of Fact as its own.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure by examination be GRANTED and that Ann Mary McKay be authorized to take the licensed practical nurse examination. DONE and ENTERED this 9th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1982.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed practical nurse licensed in the State of Florida and holding license number 0504051. The Petitioner is an agency of the State of Florida and is charged with enforcing the provisions of Chapter 464, Florida Statutes (1981), related to regulating and enforcing the licensure and professional practice standards for nurses of various categories enumerated therein in the State of Florida. During times pertinent to the allegations of the amended administrative complaint, the Respondent was employed as a licensed practical nurse at Ocala Geriatric Center, Inc. On September 16, 1982, the Respondent was the "float nurse" at Ocala Geriatric Center, meaning that she was a nurse assigned to various portions of the Geriatrics Center on an impromptu basis, which assignments to the various wings of the facility would be communicated to her by notations on her timecard which she would receive when she reported to duty for a particular shift. On September 16, 1982, she was previously scheduled by her supervisor to work on the north wing of the Ocala Geriatric Center. When Respondent reported to work for the 11:00 p.m. to 7:00 a.m. shift for September 16 - September 17, 1982, she was told by her supervisor, Deloris Jamison, to work instead on the east wing of the facility. Respondent, upon learning this, became engaged in a dispute with Mrs. Jamison regarding this assignment, refused to fulfill the assignment and indicated that she preferred to report herself as sick and return home rather than work at her assigned location on the east wing that evening. The Respondent was told to shift her duties from her customary station on the north wing to the east wing that evening due to a shortage of nurses on duty on that shift. The director of nurses of the Ocala Geriatric Center, Ellen Cain, had already arranged for nurse Phyllis Shepard to work half of the 11:00 to 7:00 shift on the north wing of the facility. When nurse Shepard duly reported for duty at the north wing she found the Respondent present at the north wing even though the Respondent had previously been informed that she was to work on the east wing. At this time the Respondent announced her intentions to nurse Shepard to remain on duty at the north wing and not to report to duty on the east wing, contrary to her supervisor's direction. At this point nurse Shepard went to the south wing of the facility and conferred with nurse Jamison regarding the Respondent's assignment and her own assignment, and had the instructions confirmed by supervisor Jamison. Upon nurse Shepard's return to the north wing, the Respondent indicated to her also that she intended to report herself sick and go home rather than work on the east wing. Only upon calling the Director of Nurses, Ellen Cain, at her home and again receiving instructions to work on the east wing that evening, did the Respondent ultimately elect to proceed to her assigned duty station. Patients Whitehurst and Rubright were classified on September 16, 1952 and September 17, 1982, "as critical geriatric patients" inasmuch as they were nasal-gastric or "tube-fed" patients and both had "indwelling" catheters for elimination of urine. On or about September 16, 1982, the Respondent charted a "dash" on the fluid intake and output record of patient Whitehurst, rather than specifying actual fluid, if any, taken in by the patient. This is an improper method of notation of fluid intake and output for such a patient, since this does not accurately reflect any information one way or the other regarding fluid intake or output for that patient for that shift. At best it might lead to a presumption that that patient had received no fluid, which is a potentially serious problem with such a patient since if a catheterized patient does not receive adequate fluid from time to time during the day, then the catheter is at risk of being blocked, with potentially serious health consequences to the patient. On that same date Respondent also failed to chart any information in her nurses' notes for patient Whitehurst. Both nurses Shepard and the Director of Nursing at Ocala Geriatric Center, Ellen Cain, were accepted as expert witnesses in the field of nursing and specifically with regard to minimal standards of professional nursing practice in Florida. It was thus established that the failure to chart in her nurses' notes any information for patient Whitehurst was conduct not comporting with minimal standards of nursing practice, especially in view of the fact that the patient Whitehurst was a naso-gastric tube patient who was also catheterized. It is imperative to note any reason why such a patient does not receive fluid during a single shift or alternatively, when a patient does receive fluid, to note on the chart the amount and type of fluids received. Further, the use of a dash on the nursing chart makes it even more imperative that the nursing notes explain what occurred on that shift regarding the patient's fluid intake, so that the nurse charged with the responsibility of that patient on the ensuing shift would be aware of the patient's fluid status and aware of any abnormality that may have occurred on the previous shift. Although the Respondent may have, in fact, administered the proper fluids to patient Whitehurst on that shift, she failed to record whether or not that duty was performed. On September 16, 1952, the Respondent also charted a for fluid intake on patient Rubright, but again failed to make any notation on the nurses' notes as to why this patient actually received no fluids. This failure to properly chart and make notes regarding the patient's fluid intake and failure to administer fluids without explanation does not comport with minimal standards of nursing practice, especially inasmuch as patient Rubright was also a naso- gastric tube-fed and catheterized patient. The Respondent also failed to chart or record any nurses' notes with regard to patient Lesimby on September 16, 1982. Failure to chart was established to be a violation of federal medicare regulations and a violation of this particular facility's policies with regard to such medicare patients. Although daily charting and notes from each shift for such critical care patients as patients Whitehurst and Rubright is required by minimal standards of professional nursing practice, failure to chart nurses notes for other patients, simply because they are medicare patients, does not necessarily depart from proper standards of nursing practice, although federal regulations require that medicare patients be the subject of daily charting, including recording of vital signs. Compliance with such federal standards is of course, not the subject of the administrative complaint in this proceeding, however. Respondent's failure to properly record fluid intake and output for patients Whitehurst and Rubright, and her failure to properly chart nursing notes for those patients on the above dates, as well as her failure to order medications for patients as required by her position at Ocala Geriatric Center, Inc., could have resulted in serious harm to the oat' ants. It was not established that the Respondent has committed acts or omissions that could have jeopardized safety in the past, however, and it was not shown that any other violations of the nursing practice act or failures to comport with minimal standards of nursing practice have ever been charged or proven with regard to the Respondent's licensure status and nursing practice in the past.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Nursing finding the Respondent guilty of the violations charged with respect to Section 464.018(1)(f), Florida Statutes (1981), with the exception of the violation charged with regard to patient Lesimby, and that the penalty of a reprimand and 90-day suspension of her licensure be imposed. DONE and ENTERED this 19th May of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of July, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Linda Sears Gibson 2003 Southwest Seventh Street Ocala, Florida Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing assistance pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. At all times relevant to these proceedings, Respondent was a certified nursing assistant, having been issued license number 84961. Her address with the Department of Health is Post Office Box 402, McIntosh, Florida 32664. On June 25, 2007, a Final Order was entered by the Board of Nursing against Respondent. The Final Order required Respondent to pay a fine of $50.00, enroll in and successfully complete courses in Legal Aspects for Nursing Assistants, and placed Respondent on probation for two years. A condition of the two-year probation was “[w]hether employed as a nurse or not, the licensee shall submit written reports to the Nursing Compliance Officer which shall contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer; and a statement by the licensee describing her employment. This report shall be submitted to the Nursing Compliance Officer every three (3) months in a manner as directed by the Nursing Compliance Officer.” (Emphasis supplied.) Respondent’s probation required that she “be responsible for assuring that reports from nursing supervisors will be furnished to the Nursing Compliance Officer every three (3) months. That report shall describe the licensee’s work assignment, work load, level of performance, and any problems." Quarterly self-reports and reports from her nursing supervisor, if any, were due to the Department on September 24, 2007, December 24, 2007, March 24, 2008, June 24, 2008, September 24, 2008, December 24, 2008, March 24, 2009, and June 24, 2009. Failure to comply with the terms of probation contained in the Final Order without prior written consent from the Board of Nursing was a violation of Respondent’s probation. As part of the Final Order a Notice of Appeal Rights was included, indicating that Respondent had 30 days to file a Notice of Appeal with the clerk of the department pursuant to Section 120.68, Florida Statutes, if she wanted to challenge the Final Order. Shaila Washington, a compliance officer for the Board of Nursing, was Respondent’s compliance officer. As Respondent’s compliance officer, Ms. Washington mailed Respondent the Board of Nursing's standard information packet on July 18, 2007. The packet outlines the terms imposed by the Board and summarizes what the Respondent needed to do in order to comply, including definite due dates listed above. The letter accompanying the information packet states in bold, "Remember, it is your responsibility to read the final order and ask questions if you do not understand it." Respondent did not contact her compliance officer regarding the information packet mailed to her. She also did not appeal the final order. Ms. Washington testified, and Respondent confirmed, that Respondent failed to submit any of the quarterly reports, by Respondent or any supervisor, as required pursuant to the terms of Respondent’s probation. Respondent stated that she did not file any of the reports because she was not working as a CNA. However, the Final Order was clear that even if Respondent was not employed, she was required to follow the probation terms and submit the reports.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Nursing enter a Final Order finding that Respondent has violated Section 464.204(1)(b) and Section 456.072(1)(q), Florida Statutes. It is further recommended that Respondent’s license to practice nursing assistance be reprimanded and that Respondent’s license be suspended, with the suspension stayed for 60 days to allow Respondent to comply with the terms of the Board’s prior Final Order. If within 60 days Respondent has not complied with the terms of the Board’s prior Final Order, it is recommended that the stay will be lifted and the suspension be imposed. The suspension will be lifted upon Respondent’s compliance with the Board’s prior Final Order. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 3rd day of December, 2009.
The Issue The central issue in this case is whether the Respondent is guilty of the violation alleged in the administrative complaint dated March 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent has been licensed as a licensed practical nurse (LPN) in the State of Florida, license no. PN 35080-1. The Department is the state agency charged with the responsibility of regulating the practice of nursing within the State of Florida. During the month of September, 1988, Respondent was employed as a night-shift LPN at Parkside, a residential treatment facility for psychiatric patients. On or about September 25, 1988, Respondent attempted to administer the morning medication to a resident patient, J.L. The patient refused the applesauce (which contained the medicine) and struck the Respondent across the wrist with great force. J.L. had been scheduled for a pass (an opportunity to leave the grounds) that day, but following the incident described in paragraph 3, Respondent decided to revoke J.L.'s privilege. When Respondent informed J.L. that the pass was revoked, J.L. became very agitated. Respondent summoned a fellow worker, Pressoir Berrouet, to assist and to restrain J.L. At some point in time between the activities described in paragraphs 3 and 4, Respondent went to her personal automobile and retrieved a stunning apparatus which she owns for her self-protection. Respondent took the "zapper" or "stun gun" to the patio area of the facility where Mr. Berrouet had secured J.L. in a chair. While J.L. was not restrained by bonds (physical restraints are impermissible at this type of facility), Mr. Berrouet had his hands on the patient's arms so that she was effectively pinned and unable to exit the chair. By this time, Lilli McCain, a day-shift employee at Parkside, had arrived at the facility. She observed Respondent approach J.L. who was still pinned in the chair on the patio. Ms. McCain observed a "black something" in Respondent's hand and witnessed Respondent touch J.L. with the instrument. She then heard J.L. scream out, "you pinched me." Respondent had purportedly "zapped" J.L. Moments later, Ms. McCain observed a red mark on J.L.'s chest. Mr. Berrouet had his back to Respondent through out the time of the incident described in paragraph 6. Consequently, he did not see the Respondent touch the resident, J.L. He did, however, hear a click noise which immediately preceded the scream from J.L. Respondent was upset at having been struck by J.L. Subsequent to the events described above, she resigned from her employment at Parkside. Respondent admitted to Laurie Shifrel, the nursing supervisor at Parkside, that she had used a "zapper" on the resident, J.L. Respondent also told Deborah Moon, the residential program coordinator for the Henderson Mental Health Center (a company which owns Parkside), that she had used a "zapper" on the resident, J.L. At hearing, Respondent testified that she did not use the stunning apparatus on J.L. but admitted she had taken the instrument onto the property to frighten J.L. The more compelling proof demonstrates, however, that Respondent did use the stunning apparatus on J.L. Parkside policy did not require residents to take medications against their will. If a resident refused medication, the proper procedure was to note that information on the patient chart so that the physician could be informed. Restraints were not used at Parkside to control resident behavior. In the event a resident were to become uncontrollable, the operating procedures required that the nursing supervisor be called to the facility or 911 for Baker Act referral depending on the severity of the resident's misconduct. J.L. did not have a history of becoming physically abusive at Parkside. It is not acceptable nursing practice to strike a psychiatric patient or to use a shocking device to curb undesirable behavior. Such conduct falls below the minimal acceptable standard for nursing care. Further, given J.L.'s history, it would be inappropriate to attempt to scare J.L. by a threatened use of such a device. Respondent was sincerely remorseful that she had brought the device onto the Parkside property. Evidence regarding a proper penalty, in the event a violation were found to have occurred, was not offered at the formal hearing.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of the violation alleged, placing the Respondent on probation for a period of one year, requiring the Respondent to attend and complete such CE courses as may be appropriate, and imposing an administrative fine in the amount of $500.00. DONE and ENTERED this 2nd day of November, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalache Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-2944 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. The portion of paragraph 2 which is addressed in finding of fact paragraph 3, is accepted; otherwise rejected as irrelevant. Paragraph 3 is accepted. Paragraph 4 is accepted. Paragraph 5 is rejected as irrelevant and unnecessary to the conclusions reached herein. Paragraphs 6 through the first four sentences of paragraph 9 are accepted. The fifth sentence of paragraph 9 is rejected as contrary to the weight of the credible evidence. The last sentence of paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of paragraph 11 is rejected as contrary to the weight of the evidence or irrelevant. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as hearsay, irrelevant, or contrary to the weight of the credible evidence. To the extent the facts are set forth in findings of fact paragraphs 3 through 8, paragraphs 13 through 22 are accepted; otherwise rejected as hearsay, irrelevant, or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted. The remainder is rejected as irrelevant or hearsay. Paragraph 24 is accepted. Paragraphs 25 through 30 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: None submitted. COPIES FURNISHED: Lisa M. Bassett Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 Jane Frances O'Leary 5295 15th Terrace, N.E. Pompano Beach, Florida 33064 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. DPR CASE NO.: 0106973 DOAH CASE NO.: 89-2944 JANE F. O'LEARY, Respondent. /
The Issue The issue in this case is whether Petitioner’s application for licensure as a registered nurse should be granted.
Findings Of Fact On or about December 6, 1988, Ms. Melegrito was convicted of two counts of fraud in violation of 42 U.S.C. Section 1395 and 18 U.S.C. Section 1341 in the United States District Court for the Western District of Virginia. On or about January 6, 1989, Ms. Melegrito was convicted of four counts of Medicaid fraud in violation of Sections 32.1-314 and 18.2-95 of the Code of Virginia. Both convictions involved the same set of facts. On or about August 3, 1989, the Florida Department of Professional Regulation and/or the Board filed an Administrative Complaint, Case No. 0107472 against Ms. Melegrito’s license as a registered nurse, charging a violation of Subsection 464.018(1)(c), Florida Statutes (1988), for the convictions set forth in paragraph one above. On or about October 27, 1989, the Virginia Board of Nursing revoked Ms. Melegrito’s nursing license as a result of the convictions set forth in paragraph 1 above. On or about December 21, 1990, the Board filed its Final Order in Case No. 0107472, placing Ms. Melegrito’s license on probation for a term concurrent with the probation imposed by the federal court and requiring her to comply with the terms of her federal probation. On or about June 25, 1993, Ms. Melegrito’s license to practice nursing in New York was revoked. On or about July 19, 1994, the Florida Department of Business and Professional Regulation and/or the Board filed an Administrative Complaint against Ms. Melegrito’s license in Case No. 92-11440, alleging a violation of Subsection 464.018(1)(h), Florida Statutes (1994), for unprofessional conduct including a departure from or failure to conform to the minimal standards of acceptable nursing practice. On or about September 14, 1994, Ms. Melegrito was found guilty of violating federal probation and sentenced to four years in the custody of the Federal Bureau of Prisons. Ms. Melegrito failed to make restitution as required by the terms of her probation. On or about November 28, 1995, the Division of Administrative Hearings issued a Recommended Order in Case No. 92-11440, finding that Ms. Melegrito violated Subsection 464.018(1)(h), Florida Statutes, and recommending suspension for three years followed by three years of probation and a $1,000.00 fine. On or about April 30, 1996, the Board filed a Final Order in Case No. 92-11440, imposing suspension for three years followed by three years of probation and a $1,000.00 fine. On or about December 13, 1996, the Agency for Health Care Administration and/or the Board filed an Administrative Complaint, Case No. 95-00886, against Ms. Melegrito’s license, charging Ms. Melegrito with a violation of Subsection 464.018(1)(l), Florida Statutes, for violating the Final Order in Case No. 0107472 by violating the terms of the federal probation. On or about September 4, 1998, the Board filed a Final Order in Case No. 95-00886, revoking Ms. Melegrito’s license for seven years. If Ms. Melegrito desired to reapply for licensure at the end of her revocation period, she was required to demonstrate her safety to practice as well as proof of completing continuing education courses and paying a $250.00 fine and $251.12 in costs. On or about February 24, 1999, Ms. Melegrito was convicted of felony criminal mischief and trespass in the Eighteenth Judicial Circuit in Broward County, Florida. On or about August 18, 2000; July 27, 2001; and December 9, 2004, the Virginia Board of Nursing denied Ms. Melegrito’s petitions for reinstatement of her nursing license. The denial by the Virginia Board of Nursing in 2004 was based in part on Ms. Melegrito’s misrepresentations concerning her licensure status at two job interviews, engaging in the unlicensed practice of nursing in 2003, and misrepresentations on her application for reinstatement by failing to disclose her previous disciplinary history and criminal history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ms. Melegrito’s application for licensure as a registered nurse. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2008. COPIES FURNISHED: Gerald D. Siebens, Esquire Office of the Attorney General One Mack Center 501 East Kennedy Boulevard Tampa, Florida 33602 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Maria C. Melegrito 3137 Honeymoon Lane Holiday, Florida 34691 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether Mary Frances Bland Orfanakos had obtained prescription drugs by presenting a forged prescription, and whether said conduct is a violation of Section 464.21(1)(b), Florida Statutes, as unprofessional conduct.
Findings Of Fact Mary Frances Bland Smith Orfanakos is a Registered Nurse holding License Number 82216-2 issued by the Florida State Board of Nursing. The Parties stipulated to the facts alleged in paragraphs 1, 2 and 3 of the Administrative Complaint. The Respondent specifically denied the allegations contained in paragraphs 4 and 6 of said Administrative Complaint. The Petitioner withdrew the allegations of paragraph 5 of the Administrative Complaint. The Respondent met William Orfanakos in Dallas, Texas prior to October 1975. In October 1975 the Respondent returned from Dallas, where she was employed as a Registered Nurse at Methodist Hospital, to Pensacola, Florida where she assisted in taking care of her father who is terminally ill. On November 21, 1975, she married William Orfanakos in Pensacola, Florida. Shortly after their marriage, she became aware that her husband was a user of Talwin, a drug restricted to use by prescription only. After their marriage, William Orfanakos repeatedly requested the Respondent to obtain blank prescription forms for him. Giving in to his continued requests, the Respondent obtained two blank prescription forms which she subsequently presented to A & E Drugs to be filled, knowing that they were forged. The first of these was presented on February 27, 1976 and the second on March 12, 1976. Mary Orfanakos is a white female in her late twenties. She was first married at age sixteen (16) and, having had a child, worked her way through nursing school. She received her initial nursing training at Springhill College and Providence Hospital in Mobile, Alabama. She graduated in 1973 and was employed at Providence Hospital for one and a half years in delivery and OBGYN before moving to Dallas, Texas. There she worked at Methodist Hospital in cardiac care unit until returning to Pensacola to tend her sick father. She worked at Baptist Hospital in Pensacola, Florida from January 1976 until June 1976. Her work was judged by her supervisors, co-workers and physicians as good. She returned to Texas in June 1976 and is currently employed by United Biologies Houston, Texas. The Respondent acknowledged her acts and is very remorseful over having committed them. After returning to Texas in June 1976 she separated from her husband, William, because of the conflicting obligations which felt to her profession and to her estranged husband, who had urged her to obtain drugs for him. Although the Respondent would like to reconcile her relationship with her husband, she is afraid and remorseful over that relationship with him which caused her to act in a manner which she very apparently views as dishonorable, degrading and unprofessional even though her husband has been successfully treated for his drug-use problem. The Respondent is a knowledgeable, well-trained nurse with considerable professional experience for her years. She resolved to become a nurse while in high school and overcame the problems of a youthful marriage and caring for a young child to obtain her nursing training. The depth of Respondent's character and its generally good quality are apparent in her having overcome many difficulties to obtain her nursing training and her understanding of the nature of her acts and feeling of remorse which she has over them.
Recommendation The Hearing Officer finds that the Respondent, while having violated the standards of her profession, did so at the continued insistence of her husband who she had recently married. But for the close, constant, and personal influence of her husband, the Respondent would not have violated her responsibilities as a Registered Nurse. Although the Respondent did and still does have a great deal of affection for her husband, the remorse which she feels for her actions and her fear of that relationship which caused her to act in a manner which she views as dishonorable and degrading have resulted in her separation from him. Based on the foregoing, the Hearing Officer would recommend that the Florida State Board of Nursing not revoke or suspend the license of Respondent but place her on probation for the maximum period allowed by law under such conditions as the Board, upon review of the record, deems appropriate. DONE and ORDERED this 6th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida Artis L. McGraw, Esquire 26 East Garden Street Pensacola, Florida 32501 Geraldine Johnson, R.N. State Board of Nursing Suite 201 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue Whether the Respondent's provisional approval to operate a practical nursing program should be rescinded for the reasons stated in the Notice of Intent to Rescind Program Approval dated May 10, 2007.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Board is, and was at the times material to this matter, the state agency responsible for reviewing and approving nursing programs in Florida pursuant to Section 464.019, Florida Statutes (2007).3 HOTC's practical nursing program was provisionally approved in June 2003, and HOTC has been operating its practical nursing program since that time. HOTC admitted the first class of students into its practical nursing program in August 2003, and it became accredited by the Accrediting Bureau of Health Education Schools in July 2005. The practical nursing program provided by HOTC is directed to non-traditional students, that is, students who are pursuing a second career, students who come from an underprivileged community, and students who need additional help. The practical nursing program at HOTC takes over one year to complete. There is only one course in the program that is a prerequisite to all other courses in the program, and this course must be satisfactorily completed before a student is allowed to take other courses. No other courses in the program are sequential, and students who have passed the one pre- requisite course may take any of the courses in the program, even if they have failed one or more courses. Each student must, however, satisfactorily complete all courses before he or she can graduate from the program. On February 4, 2005, HOTC sent a list of the students in its first graduating class to the Board so that the Board could certify the graduates as eligible to take the National Comprehensive Licensure Examination for practical nursing, known as the NCLEX-PN, given under the auspices of the National Council of State Boards of Nursing ("Council"). A candidate must pass the NCLEX-PN in order to qualify for licensure in Florida as a practical nurse. The Council contracts with a vendor, which administers the examination each quarter. Each quarter, the vendor issues reports to the Board containing the pass-rates on the NCLEX-PN; the reports are provided to the Board on the 15th day of the month following the end of each quarter. Each quarterly report contains data for that quarter, as well as cumulative data for the year-to-date. Each practical nursing program has a NCLEX-PN number that must be entered on the answer sheet of each student taking the examination. This allows the examination vendor to compile data for each practical nursing program. The data made available to the Board in the reports issued by Council's examination vendor include the national average pass-rate for the examination; the total number of candidates from each practical nursing program in Florida taking the examination; and the scores for each candidate in each program. The NCLEX-PN vendor computes the pass-rate for the candidates nationally and for each practical nursing program in Florida by dividing the number of candidates passing the examination by the number of candidates taking the examination. The Board relies on the information contained in the examination vendor's report as an accurate statement of the national average pass-rates for the NCLEX-PN and of the pass- rates for each of the practical nursing programs in Florida. The NCLEX-PN data for Florida are posted on the Board's website, where they may be viewed and downloaded by schools offering practical nursing programs; a copy of the quarterly reports are also sent to all deans and directors of practical nursing programs with e-mail addresses on file with the Board. In 2005 and 2006, the times pertinent to this proceeding, HOTC did not access the NCLEX-PN data on the Board's website, and HOTC did not receive copies of any of the relevant NCLEX-PN reports from the Board. Several of the Board's staff, including its Executive Director, Rick Garcia, conducted a site visit at HOTC on October 10, 2006, to evaluate HOTC's practical nursing program. One reason for the site visit was the staff's concern about the pass-rates of HOTC students on the NCLEX-PN. Carol Johnson, the dean of HOTC and the administrator of its nursing program, was present for most of the site visit, which lasted between two and four hours. The Board's staff requested during the site visit that HOTC provide five to seven representative student files, which were produced. Mr. Garcia reviewed two student files that caused him concern because the students had failed several courses but were allowed to take additional courses before being required to remediate and demonstrate mastery of the content of the failed courses. Mr. Garcia noted during the site visit that the documents in one student's file were not arranged sequentially, which caused him concern regarding consistency in file-keeping.4 The site-visit team prepared a Program Evaluation Site Visit Report which contained a statement of its findings and a list of four recommendations. The report was presented to the Board. Sufficiency of the evidence. The Board failed to present any credible evidence to support its contention that the pass-rates of HOTC's graduates on the NCLEX-PN for 2005 and 2006 were more than 10 percentage points below the national average pass-rates for those years. First, the Board failed to present any credible evidence to establish the pass-rates for HOTC's graduates on the NCLEX-PN for 2005 and 2006. The only evidence presented was the testimony of Mr. Garcia, and this testimony was based on the information contained in the report of the October 10, 2006, site visit. That report included a table purporting to show the number of HOTC graduates who took the NCLEX-PN in 2005 and in 2006, through September 30, 2006; the number of HOTC graduates who passed the NCLEX-PN in 2005 and in 2006, through September 30, 2006; and the pass-rates of HOTC graduates in 2005 and in 2006, through September 30, 2006. Both Mr. Garcia's testimony regarding the pass-rates of HOTC's graduates and the numbers included in the site visit report are, however, hearsay5 and cannot form the basis for a finding of fact regarding the pass-rates of HOTC's graduates in 2005 and in 2006.6 Although Mr. Garcia testified that the numbers contained in the site visit report upon which he and the Board relied were drawn from the reports sent to the Board by the vendor that administered the NCLEX-PN, the Board did not offer into evidence a copy of the vendor's reports relating to the pass-rates of HOTC's graduates for the relevant time periods.7 Without these reports, the Board has failed to present evidence upon which a finding of fact can be made as to the pass-rates of HOTC's graduates for 2005 and 2006. Second, the Board failed to present any credible evidence to establish the national average pass-rates for the NCLEX-PN for 2005 and 2006, the pass-rates against which HOTC's pass-rates would have been measured. Again, the only evidence presented by the Board regarding the NCLEX-PN national average pass-rates for 2005 and 2006 was Mr. Garcia's testimony, and this testimony was based on his recollection that the pass-rate was "generally . . . in the mid to high 80's" and on his reliance on the national average pass-rates included in the Board's answers to interrogatories propounded by HOTC.8 Mr. Garcia's testimony regarding the national average pass-rates on the NCLEX-PN for 2005 and 2006 is hearsay, and the information regarding the national average pass-rates included in the interrogatory answer is not only hearsay,9 it is also of questionable validity because the interrogatories were not answered under oath as required by Florida Rule of Civil Procedure 1.340(a) and were signed only by counsel for the Board. Therefore, neither Mr. Garcia's testimony nor the information set forth in the interrogatory answer is sufficient to support a finding of fact as to the national NCLEX-PN pass- rates in 2005 and 2006.10 Mr. Garcia testified that the national average pass-rates for the NCLEX-PN for 2005 and 2006 were drawn from the reports sent to the Board by the vendor that administered the NCLEX-PN, but the Board did not offer into evidence a copy of the vendor's reports containing the national average pass-rates for the relevant time periods.11 Without these reports, the Board has failed to present evidence upon which a finding of fact can be made as to the national average pass-rates upon which the Board relied in reaching its preliminary decision to rescind its approval of HOTC's nursing program.12
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Health Opportunity Technical Center, Inc., did not commit the violations alleged in the Notice of Intent to Rescind Program Approval dated May 10, 2007, issued to Health Opportunity Technical Center, Inc. and withdrawing the Notice of Intent to Rescind Program Approval. DONE AND ENTERED this 16th day of December, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008.
