The Issue The issue presented is whether Petitioner achieved a passing score on the February 21, 1996, midwifery licensure examination.
Findings Of Fact l. The North American Registry of Midwives, by and through Schroeder Measurement Technologies, developed, administered, and graded the midwifery licensing examination which Petitioner took on February 21, 1996. The examination measures minimum competency. The questions for this licensure examination are developed and reviewed by panels of experts who are practicing midwives with between five and thirty years of experience. The answer to each question is tied to reference materials by the panel of experts. When a question is challenged by a candidate who sat for the examination, additional experts review the challenge to determine if it has merit. Petitioner's challenged questions were reviewed using this procedure. The minimum passing score on the February 21, 1996, examination was 78.97. The base examination was administered in August 1995 at which time 75 was the minimum passing score. A variation of the August 1995 examination was administered in February 1996. A process known as "statistical equating" was used subsequent to August 1995 resulting in a different "cut score". In essence, the adjustments in "cut scores" occur so that the degree of difficulty remains the same. The "cut score" is not the same as a passing grade. The 78.97 minimum passing score for the February 1996 examination is the equivalent score to the 75 minimum passing score on the original test, having been adjusted statistically for the difficulty level between the tests. The February 1996 test was an easier test than previous examinations and, therefore, a higher raw score was deemed necessary to establish a minimum competency level passing standard. Petitioner achieved a score of 76.14 on the February 1996 midwifery examination. After being notified that she had failed to achieve a passing score, Petitioner traveled to the Agency's offices in Tallahassee to review her examination. She was given copies of the questions she answered incorrectly, her answers, the correct answers, and the scoring sheet used to grade her examination. At the beginning of her review, an Agency employee discussed her scoring sheet with her and advised her that there had been a problem with question numbered 115 on the examination. Accordingly, all candidates who took the examination were given credit for having correctly answered that question. He showed Petitioner the handwritten calculations on the bottom of her scoring sheet which reflected the additional credit given to her for a correct answer to question numbered 115. The extra credit still was not enough for Petitioner to achieve a passing score. Petitioner reviewed the questions and her answers. As a result, she filed challenges to 24 questions. Those challenges were reviewed subsequently by a panel of experts. The experts responded to each of Petitioner's challenged questions by explaining in writing why each of Petitioner's answers was correct or incorrect and citing to the page of the authoritative treatise where the correct answer appears. Petitioner had already been given credit for two of the questions she challenged, which she had answered correctly. Petitioner was also given credit for answering correctly one additional question in part one of the examination and three additional questions in part two of the examination. Petitioner's score was then, and only then, re- calculated on the bottom of her scoring sheet to include credit for those four additional correct answers. Even after Petitioner's correct raw score was re-calculated and then properly weighted for that portion of the examination, she only achieved a revised score of 77.86, less than the minimum score required to pass the examination. The scoring of Petitioner's examination was fair and accurate. No irregularities occurred in the scoring of Petitioner's examination. The February 21, 1996, midwifery licensing examination, which is administered nationwide, was not arbitrary and capricious. It has undergone a lengthy test-development process which conforms with all known testing standards. Further, the examination's performance on a national basis has shown that it does not discriminate against any subgroup. Each question on the examination has been statistically validated. The statistical analyses and reviews performed after this examination indicate that there are no psychometric characteristics which would indicate that more than one correct answer exists for any question on the February 1996 examination, with the exception of question numbered 115.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered dismissing Petitioner's challenge and finding that Petitioner failed to achieve a passing score on the February 21, 1996, midwifery licensing examination. DONE AND ENTERED this 1st day of August, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1997. COPIES FURNISHED: Steven A. Grigas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308-5403 William P. Doyle, Esquire 1930 Tyler Street Hollywood, Florida 33020 William Buckhalt, Executive Director Agency for Health Care Administration Council on Midwifery Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether the Petitioner's application for licensure by examination as a registered nurse should be granted or denied.
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 the state agency that issued the Notice of Intent to Deny Ms. Perez's application for licensure by examination as a registered nurse.1 Ms. Perez graduated from nursing school in Cuba in 1979, and was awarded a nursing degree. Ms. Perez emigrated from Cuba to the United States in 1980. She left Cuba with virtually no notice and did not have the opportunity to take with her any documents or other papers. At some point, Ms. Perez decided to apply to take the examination required for licensure as a registered nurse in Florida. She asked a neighbor who was going to Cuba for a 90- day visit to go to the school from which she graduated and obtain the documents needed to establish that she was eligible to take the Florida examination. Ms. Perez's neighbor sent Ms. Perez the documents obtained in Cuba on Ms. Perez's behalf, and Ms. Perez submitted to the Board the originals of the documents she had received together with her application for licensure by examination.2 The documents provided to the Board by Ms. Perez included the original of a document she received from Cuba that carries the date of July 14, 1979, and reflects that Ms. Perez had received, under her maiden name, a degree from the Instituto Politecnico de Enfermeria "Flores Betancourt" entitled "Tecnico de Nivel Medio en Enfermeria." The Board's staff recognized this document as a diploma; it kept a copy of the document for its files and returned the original to Ms. Perez.3 Ms. Perez also provided with her application the original of a document identifying her by her maiden name. The document is entitled "Certification de Estudios Terminados"; it identifies the school Ms. Perez attended as the Instituto Politecnico de Enfermeria "Flores Betancourt"; it identifies the degree Ms. Perez received upon completion of her studies as "Enfermero (A)"; it lists all of the courses offered by the Instituto Politecnico de Enfermeria "Flores Betancourt"; and it includes grades for the courses Ms. Perez took a period of two years, which included all of the courses offered except for surgical nursing practice. The information provided was hand- written on what is identified as a Ministerio de Educacion form "Certificacion de Estudios Terminados," and it carries the seals and signatures of the "Director" and the "Secretario," as well as a handwritten notation that appears to be the location of the document in the official records. The Board's staff accepted the document as the transcript of Ms. Perez's nursing program in Cuba, and the Board did not question the authenticity of the transcript. At the time Ms. Perez's application was reviewed by the Board's staff, the Board used guidelines entitled "Levels of Nursing Licensure in Cuba" to determine equivalencies of Cuban programs and programs recognized in Florida. Those guidelines showed that the Cuban titles equivalent to a registered nurse in Florida were "Licentiate en Enfemeria," "Technico Medico Enfemeria," or "Enfemeria Technico." The Board considered the degree of "Tecnico de Nivel Medio en Enfermeria" that appears on the diploma provided by Ms. Perez to be the equivalent of a registered-nurse degree in Florida. The degree of "Enfermero (A)" is not listed on the guidelines and is not familiar to the Board's staff. Because the diploma and the transcript submitted by Ms. Perez with her application identified different degrees, the Board was unable to determine that Ms. Perez had completed a nursing program was substantially equivalent to a registered- nurse program, and it made the preliminary decision to deny her application for licensure by examination because she failed to establish that she was eligible to take the examination that is a prerequisite to licensure. The documents submitted by Ms. Perez to the Board after the final hearing on January 25, 2008, consisted of a "Certificacion de Estudios Terminados"; a translation into English of this document; a Statement of Accuracy from a Certified Translator; an English translation of the "Certificacion de Estudios Terminados"; a letter to the Board from Ms. Perez; and a "Certifico" from the Cuban Ministerio del Interior showing that documents relating to Ms. Perez had been provided to Violeta Pedroso Hernandez" on September 26, 2007. Ms. Perez received these documents on September 30, 2007.4 This second "Certificacion de Estudios Terminados," or "Certification of Completed Studies," contains handwritten information entered on a form identical to the form used for the transcript Ms. Perez submitted along with her application for licensure. The transcript contains the identical information as that contained in the first "Certificacion de Estudios Terminados" provided to the Board by Ms. Perez and accepted by the Board as authentic, except that the handwriting on this document is different from the handwriting on the first transcript provided by Ms. Perez and the degree identified in the second transcript was "Tecnico de Nivel Medio en Enfermeria," or "Intermediate Level Nursing Technician" rather the "Enfermero (A)." The "Tecnico de Nivel Medio en Enfermeria" degree is recognized by the Board as the equivalent of a registered nurse degree in Florida and would be sufficient to establish eligibility to take the registered-nurse examination. The documents provided to the Board by Ms. Perez after the January 25, 2008, hearing were reviewed by Shelley Young, an Educational Consultant for the Board. Among her other duties, Ms. Young reviews the credentials of foreign-educated nurses, including Cuban-educated nurses. Ms. Young testified that she reviewed the second "Certificacion de Estudios Terminados" provided by Ms. Perez and that she "has doubts about this being an authentic transcript" because the document looks like "a Xerox copy of a transcript written in Spanish with scores put in." Ms. Young concluded that the document submitted by Ms. Perez was not an authentic transcript because it "doesn’t look like it's an original" transcript.5 In Ms. Young's experience, original transcripts from Cuba are "generally" 11 inches wide by 14 inches long; the document submitted by Ms. Perez was eight-and-a-half inches wide and 11 inches long. The evidence presented by the Board at the June 24, 2008, hearing is not sufficiently persuasive to support a finding that the second transcript provided by Ms. Perez is not authentic. The evidence establishes that Ms. Perez provided the Board with the original documents she received from Cuba and that she has no other means of obtaining the documents the Board requires from foreign-educated nurses to establish that they completed a program equivalent to a program approved by the Board and are, therefore, eligible to sit for the registered- nurse examination. The diploma and second transcript Ms. Perez received and transmitted to the Board are sufficient to establish that the nursing degree Ms. Perez was awarded in Cuba was a "Tecnico de Nivel Medio en Enfermeria" degree that is recognized by the Board as the substantial equivalent of the registered-nurse program approved by the Board.
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 Magdalena Perez is eligible to take the examination required for licensure as a registered nurse in Florida. DONE AND ENTERED this Tallahassee, Leon County, Florida. day of August, 2008, in 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 day of August, 2008.
Findings Of Fact At all times material to this proceeding, the Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0695621. Before 1987, the Respondent practiced nursing for approximately 30 years, including some time for the United States Marine Corps, without any occasion for license discipline. During 1987, through August 2,1987, the Respondent was employed as a licensed practical nurse at Haines City Health Care Center. During 1987, the Respondent's performance at work at the nursing home was adversely affected by situational depression caused in part by the pain probably caused by an arthritic condition that involved the temporomandibular joint and in part by a reaction to the medication prescribed to alleviate the pain On many occasions while the Respondent was working at the Haines City Health Care Center in 1987, the Respondent experienced dramatic mood changes.. She would act normal, even very happy, one minute, and become very depressed, even crying, the next. In February, 1987, the Respondent signed the medication administration record indicating that she had performed a dressing change on a patient when she in fact had not performed the dressing change. On July 31, 1987, the Respondent charted in the medication administration record the administration of procardia to a patient when she in fact had not administered the medication. On August 2, 1987, the Respondent had the assignment, among other things, to clean out some medicine carts. She accumulated 14 assorted pills but could not dispose of them because another nurse was required to be there to verify the proper disposition of the pills. She put the pills in a souffle cup and covered them with a plastic cup, planning to dispose of them properly when another nurse was available to watch her. Time went by, and the Respondent got busy doing other things, and she forgot to dispose of the pills. She did not realize her error until she got home after her shift was over. She telephoned to ask the nurse on the next shift to dispose of the pills in the presence of another nurse. She also asked the nurse not to report her error to their supervisor. The incidents described in Findings 4 through 6, above, constitute unprofessional conduct which departs from, or fails to conform to , the minimal standards of acceptable and prevailing nursing practice. There was no evidence that any of the incidents described in Findings 3 through 6, above, resulted in any physical harm or injury to a patient (although failure to administer prescribed procardia could have endangered the health of the patient under some circumstances.) Thinking that the Respondent's performance deficiencies and mood changes may have been evidence of a chemical dependency of some kind, the staff at the Haines City Health Care Center recommended that the Respondent submit to an evaluation and treatment, if necessary, by the Intervention Project for Nurses (IPN). The Respondent agreed and enrolled on September 23, 1987. Testing convinced the professional working for the IPN that the Respondent had no chemical dependencies but indicated to them that she may benefit from psychiatric evaluation and treatment for depression. The Respondent considered some of the suggestion to be cost-prohibitive for her means, but she did see visit her medical doctor, who prescribed an antidepressant. Her doctor advised her to discontinue the medication when the Respondent noticed undesirable side- effects. By not completing the recommended psychiatric evaluation and treatment and not filing required status reports, the Respondent did not comply with the requirements of the IPN, and was dismissed from the program without having completed it. When the Respondent returned to the Haines City Health Care Center, she was not given back her job. She then sought and was given employment as an LPN at another facility, the Ridge Convalescent Center, Inc., and has been a satisfactory employee from February 15, 1988, through the date of the final hearing, December 9, 1988.
Recommendation Based on the foregoing Findings Of Fact and Conclusion Of Law, it is recommended that the Board of Nursing enter a final order finding the Respondent, Gloria A. Williams, guilty of three separate violations of Section 464.018(1)(f), Florida Statutes (1987), and placing her on probation for one year conditioned on her submission for reevaluation of her mental and emotional stability by a psychiatrist or psychologist approved by the IPN, on her completion of any recommended follow-up treatment, and on her submission of quarterly progress reports while on probation. RECOMMENDED this 13 day of January, Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13 day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-4411 To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following rulings are made on the Petitioner's proposed findings of fact: Accepted and incorporated. Rejected, but only because the Respondent's employment at Ridge Convalescent Center, In., between February 15 and at least December 9, 1988, is relevant to the alleged violation of Section 464.018(1)(h), Florida Statutes (1987); otherwise, accepted and incorporated. 3.-12. Accepted and incorporated to the extent necessary and not subordinate. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Gloria A. Williams 2900 Powerline Road, Lot 88 Haines City, Florida 33844 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
The Issue The issue in this proceeding was whether Respondent violated the Nurse Practice Act, Subsections 464.018(d) and (f), Florida Statutes, by making a false record and by abandoning the care of her patient and thereby departing from minimal standards of acceptable and prevailing nursing practice.
Findings Of Fact At all times relevant, Respondent was licensed as a practical nurse with license number 0797251. (Petitioner's Exhibit #1, T-22). Respondent, Sheri Ward, was employed by Bayshore Registry, a private-duty nursing service. (Petitioner's Exhibit #3). On August 3, 1985, Ms. Ward was assigned to Villa Maria Nursing Center, Bon Secours Hospital in Miami, to fill in for the regular LPN who was on leave. (T-26) Her only assigned patient was Estelle Crocoll. (T-10) The patient needed continual care because she remained either comatose or semi-conscious and had to be fed by a tube. She had to be watched to ensure that she didn't regurgitate the feeding. She also had bed sores and muscle contractures and had to be turned every couple of hours. (T-11, 26-28) When she checked in for her shift around 7:00 a.m., Ms. Ward learned that Cleo Bell, the nurse in charge of the unit, was the one who would sign her time sheet. She asked Ms. Bell if she could get off a little early, like around 2:00 p.m. Ms. Bell said okay and asked that she be notified when she (Ms. Ward) left. Ms. Ward's shift was supposed to end at 3:00 p.m. that day. (T-10, 42) Ms. Bell checked on the patient at 11:00 a.m. and around 12 noon but did not see Ms. Ward. (T-l1) Helen Bushey, R.N. is the head nurse on the wing where Ms. Ward was working on August 3, 1985. (T-23) She has thirty years of nursing experience and at the hearing was qualified as an expert to testify regarding nursing standards. (T-24, 26) Among her other duties, Ms. Bushey makes the rounds to check on the patients and to introduce herself to any new private duty nurse assigned to a patient. (T-29) On August 3, 1985, Ms. Bushey checked Estelle Crocoll's room at 8:30 a.m., between 11:00 and 11:30 a.m., and again around 12 noon, but at no time saw Sheri Ward. (T-29, 30) Ms. Ward failed to answer a page and members of the staff told Ms. Bushey they could not recall seeing her after 11:00 a.m. (T-31, 33) Ms. Bushey reviewed the notes on the patient's chart around 1:45 p.m., and found that notations for 3:00 p.m. had been written up already. (Petitioner's Exhibit #3, T-31) She notified Ms. Ward's employer and Ms. Ward was barred from practicing at Villa Marie. (Petitioner's Exhibit #3, T-32) Ms. Ward claimed that she left the patient's room only to help another nurse ("Virginia") move a patient and to get the nurse to come help her move Estelle Crocoll. (T-44) She claimed that the chair in which she sat was obscured from view by a person entering the room. (T-44) She admitted that she left the job no later than 1:25 p.m., and since she could not find Ms. Bell she told "Virginia" to tell Ms. Bell she was leaving. (T-51, 52) Sheri Ward also admitted that she pre-entered notes for 3:00 p.m., having learned that "little bad habit" (her characterization) from working and training in a county hospital where ". . . you are really pressed for time." (T-46, 53) The reason she left early was to go to a wedding. (T-13, 48) It is unnecessary to determine Ms. Ward's whereabouts during the day or the exact time she left her duty; clearly, by her own admissions, Sheri Ward falsified her patient's record and abandoned the care of that patient without proper notification. Ordinary common sense would conclude that, given the uncontroverted circumstances, these actions constitute extremely bad judgement. Competent expert opinion concluded that these actions constitute a departure from minimal standards of acceptable nursing practice. (T-36)
Findings Of Fact Respondent, Carol O'Donnell (O'Donnell), was at all times material hereto licensed as a registered nurse in the State of Florida, and held license number 1498442. On May 15, 1986, O'Donnell was employed as a registered nurse at Broward General Medical Center, Broward County, Florida, on the 3:00 p.m. to 11:00 p.m. shift. At or about 7:30 p.m., O'Donnell abandoned her employment, without notice or authorization, and thereby left her patients unattended. Although the period that elapsed between the time O'Donnell abandoned her position and the time her absence was discovered was apparently of short duration and there was no proof any patient suffered from her absence, her conduct constituted a departure from and failure to conform to the minimum standards of acceptable and prevailing nursing practice in the community.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Carol O'Donnell, be reprimanded, and that an administrative fine of $500.00 be imposed upon her. DONE and ENTERED this 20th day of August, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 20th day of August, 1987. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. 5. Addressed in paragraph 3. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Carol O'Donnell 109 North Birch Road, #4 Ft. Lauderdale, Florida 33312 Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive Room 504 Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
The Issue Whether Petitioner should be issued a license as a Licensed Practical Nurse, pursuant to Chapter 464, Florida Statutes.
Findings Of Fact Petitioner Mary Ellen Stone Zirkle, Huntington, West Virginia, submitted an application for Licensed Practical Nurse by Endorsement to Respondent Florida State Board of Nursing, dated August 29, 1978. The application was denied by Respondent by letter of September 28, 1978, for the reason that Petitioner had not completed a program approved by the Board for the preparation of Licensed Practical Nurses and had not completed the 12th grade. Petitioner, through her counsel's letter of October 19, 1978, requested an administrative hearing. (Exhibit 1, Case File) Petitioner attended high school in West Virginia for three years from 1940 to 1943. In November, 1958, she received a certificate from the Huntington East High Trades School, Huntington, West Virginia, certifying that she had completed the requirement in practical nursing prescribed in the adult trade extension program sponsored by the Practical Nurses of West Virginia, Inc., District No. II, and the National Association for Practical Nurse Education. The course in practical nursing consisted of 285 hours of classroom work which involved class attendance for two nights a week for approximately one and one- half years. Although the school was not accredited by the West Virginia State Board of Examiners for Practical Nurses until 1961, West Virginia permitted individuals who had engaged in practical nursing for a period of three years to be issued a license as a practical nurse by waiver. It further authorized such individuals who had completed extension courses equal in theory to those for the graduate practical nurses to thereafter take the examination prescribed by the Board and obtain a license without the designation of "waiver" thereon. In this manner, Petitioner obtained her West Virginia license by waiver on November 6, 1958 and, in 1959, she passed the State Board examination. During the time Petitioner attended the extension course at Huntington East High Trades School, she was simultaneously employed at Cabell Huntington Hospital performing the duties of a practical nurse. During the period March - September, 1960, she attended a "post graduate educational program" at the hospital in operating room technique and was awarded a certificate of graduation. She thereafter was employed as a licensed practical nurse at Doctor's Memorial Hospital, Huntington, West Virginia, from 1962 until 1976. Her duties included working in all areas of surgery as well as general central service type functions in the general nursing units. In 1974, she satisfactorily completed a required course of studies in operating room technician refresher program which consisted of 80 hours of classroom work. She was also certified as an Operating Room Technician in 1974. (Exhibits 2-6, 7-8) Petitioner submitted letters from the various physicians familiar with her performance of duty at Doctor's Memorial Hospital who "found her to be reliable and efficient in the Operating Room and seemingly quite knowledgeable as a Staff Nurse in the general nursing departments." Her former supervisor at Doctor's Memorial Hospital also submitted a letter in which she commented favorably on Petitioner's efficiency and reliability. The letter stated in part as follows: When assigned to other areas, she worked with as much efficiency as she did in the Operating Room. It was very evident she had been trained well to function as a L.P.N. Her knowledge of nursing procedures and medications was quite adequate even with long periods of absence from general duty. (Exhibit 7) In determining qualifications for licensure by endorsement, Respondent considers that an applicant's graduation from an "approved school of practical nursing" in another state is acceptable as meeting Florida's requirements and does not inquire into the number of hours of instruction required for such graduation. Its inquiry into Petitioner's qualifications in this respect was caused by the fact that the West Virginia State Board of Examiners for Practical Nurses indicated on Respondent's application form that Petitioner's education had been an extension course. It is a policy of Respondent that the equivalent of a four year high school education is completion of the General Education Development Test (GED). Petitioner has not taken such a test. (Testimony of Johnson, Zirkle)
Recommendation That Petitioner's application for license to practice practical nursing without examination pursuant to Section 464.121 (2), F.S., be approved. DONE and ENTERED this 21st day of February, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Peter S. Penrose, Esquire 3175 South Congress Avenue Suite 103 Lake Worth, Florida 33461 Geraldine Johnson, R.N. Licensing and Investigation Coordinator State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211
The Issue The issue in this case is whether the Petitioner's application for licensure by endorsement should be approved or denied.
Findings Of Fact In June of 1997, the Petitioner filed an application for nursing licensure, by means of which she seeks to be licensed as a registered nurse by endorsement. In support of her application, the Petitioner submitted, or caused to be submitted, evidence showing that she was licensed as a registered nurse in Quebec, Canada, and that she had such licensure status by passing an examination in 1976. The examination she passed in 1976 was the examination administered in French by the Ordre des Infirmieres et Infirmieres du Quebec ("OIIQ"). In 1976, the registered nurse licensure examination given by, or required by, the Florida Board of Nursing was the State Board Test Pool Examination, which was administered by the National Council of State Boards of Nursing. In addition to the licensure examination administered by OIIQ, the Canadian Nurses Association Testing Service ("CNATS") has also offered a registered nurse licensure examination in Canada for many years, including 1976. The Florida Board of Nursing has determined that the CNATS registered nurse licensure examinations administered from 1980 through 1995 are equivalent to the State Board Test Pool Examinations administered by the National Council of State Boards of Nursing. There has been no such determination for CNATS examinations administered before 1980 or after 1995. The evidence in this case is insufficient to determine whether the registered nursing licensure examinations administered in 1976 by either CNATS or OIIQ were substantially equivalent to, or more stringent than, the State Board Test Pool Examinations administered in 1976 by the National Council of State Boards of Nursing.5
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying the Petitioner's application for licensure by endorsement. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2000.
