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 When Respondent informed J.L. that the pass was revoked, J.L. became very agitated.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 is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand. RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516 Petitioner: 1. Partially adopted in finding of fact 1. 2-4. Partially adopted in finding of fact 2. 5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 3. 9. Partially adopted in finding of fact 4. 10. Rejected as being hearsay. 11-16. Partially adopted in finding of fact 5. 17. Rejected as being hearsay. 18-20. Partially adopted in finding of fact 6. 21-25. COPIES Partially adopted FURNISHED: in finding of fact 8. Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ms. Susan H. T. Benson P. O. Box 143 Naples, FL 33939 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
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 Whether Lazaro Saavedra is eligible for licensure by endorsement as a registered nurse in Florida, as provided in Chapter 464, Florida Statutes, and Chapter 210, Florida Administrative Code?
Findings Of Fact Petitioner, Lazaro Saavedra, received his education in Cuba (Tr. 109). There is evidence that he attended medical school for a period of four to five years beginning in 1960 (Tr. 109, 110, 119; JX-4), but he did not complete his medical education (Tr. 109). Petitioner asserts that he attended nursing school in Cuba from 1959 to 1962 (Tr. 108), and was licensed to practice nursing in Cuba (Tr. 118-119, 125). The record in this cause is devoid of any documentation of Petitioner's nursing education. While a witness apparently had a paper that may have been some sort of copy of Petitioner's nursing degree, it was neither identified for the record or offered into evidence (Tr. 85, ln. 11-15; 86, ln. 2-6). Petitioner attempted to prove his nursing education by his own testimony, but he was unable to describe well the content of his nursing program (Tr. 124, ln. 24-25, 125). He was unclear and imprecise regarding the dates of his nursing education and its overlap with his medical education (Tr. 109, 110, 124). The only testimony Petitioner offered to prove his attendance in nursing school, other than his own, was that of Bruno Barreiro. Mr. Barreiro knew Petitioner to be a nursing student (Tr. 91). He later saw Petitioner on "rounds" at a hospital (Tr. 92), but stated that medical students and nursing students took rounds together (Tr. 99). The witness expressed no knowledge of Petitioner as a graduate or as a practicing licensed nurse (Tr. 91, 98). Petitioner attempted to prove his nursing education and licensure in Cuba by the testimony of witnesses who "knew him as a nurse" in Cuba. Alicia de la Rua is a Florida licensed nurse who worked in the same hospital as Petitioner in Cuba for three months in 1964 (Tr. 55, 56, 59). They did not work together (Tr. 59), but were on the same ward in separate men's and women's sections (Tr. 61). Ms. de la Rua never saw Petitioner's nursing diploma or license (Tr. 60) and has no personal knowledge that he attended nursing school in Cuba (Tr. 61). She did see him dressed as a nurse and acting as a nurse in the principal hospital in Matanzas, Cuba (Tr. 55, 61-62). Francisca Garcia is licensed as a nurse in Florida. She met Petitioner in 1965 or 1966 in the clinic Petitioner's father and brother, who were medical doctors, operated in Havana (Tr. 69, 91, 118-119). Petitioner treated Ms. Garcia's nephew by giving him a vaccination (Tr. 70). In Cuba that treatment could have been performed by someone with a medical education or even a nurse's aide (Tr. 70). Although Ms. Garcia states that she saw Petitioner's diploma or license at the clinic (Tr. 65, ln. 9-15), no such document has been offered in this proceeding, and her testimony about the diploma is not persuasive due to Petitioner's failure to offer any copy of the degree for admission into evidence, although a copy was apparently available at the hearing. See Finding of Fact 2, above. Petitioner first sought licensure in Florida in 1977 (JX-4). The basis for that application was his incomplete medical education, and the application was denied (Tr. 111, 117). On that application, Petitioner did not indicate any nursing education, either under "Official Name of Nursing Program" (JX-4, ln. 8) or under a question regarding receipt of nursing education in another country (JX-4, ln. 10). The latter question was left blank; all other questions on the application were answered (JX- 4), including that Petitioner had not written a nursing licensing examination before. Petitioner again applied for licensure by examination in 1981 (JX-5). On the 1981 application, Petitioner did refer to his nursing education, but in vague terms, giving the Official Name of Nursing Program as "Registered Nurse" (JX-5, ln. 8). This application also contains the false statement that Petitioner had never before made application for licensure in Florida (JX-5, ln. 9), and the statement that he had not written a nursing licensing examination before. Petitioner applied for licensure a third time, this time by endorsement rather than by examination, in an application received by the Board on May 18, 1984 (JX-3). This application contains several false statements or omissions. Petitioner again failed to advise the Board of his previous applications (JX-I, section 4E). Petitioner stated that he had never held a license to practice nursing in another country (JX-3, section 4F). Petitioner again stated that he had never written a nursing licensure examination in Florida or any other state or country (JX-3, section 6A). Petitioner made a further false answer to the question "Have you ever been denied a license to practice nursing in Florida . . .?" (JX-3, section 6D). Truthful answers to these questions are necessary so that the Board and its staff may review sufficiently and evaluate an application, taking into consideration any previous Board actions (Tr. 146, 147). To prove eligibility for licensure by endorsement, an applicant who was educated and licensed in Cuba before a prescribed date must demonstrate that licensure by means of official documents (Tr. 140). If original documents are unavailable, as is often the case with Cuban nurses (Tr. 98), the Board requires some other competent, substantial proof, including affidavits of other nurses or doctors licensed both in Cuba and in Florida (Tr. 140, 149). Those affidavits must be consistent with other information received by the Board concerning the applicant's qualifications (Tr. 149). The Board amended its rules by emergency rule effective May 18, 1984 (RX-1), to provide that nurses licensed in Cuba prior to December 31, 1961, would be eligible for licensure by endorsement upon successful completion of a refresher course (Tr. 142, 143). Although Petitioner purportedly graduated from nursing school after that date, the Board reconsidered his application because he had been approved to begin and had completed the refresher course at Miami-Dade Community College before the effective date of the emergency rule (Tr. 144, 145). Petitioner completed the variable time nursing refresher program at Miami-Dade (Tr. 46; JX-2), which was a 16- week course designed for people who had never taken a licensing examination (Tr. 45, ln. 9-14). This program contained no clinical component or direct patient care (Tr. 46, 47). According to the dean of the Miami-Dade program, Dr. Jeanne Stark, who also developed the program (Tr. 46, 47), an individual with a medical background but who had not had a nursing education could successfully attend and complete the 16-week variable time refresher program (Tr. 47-50). Petitioner was approved to take the refresher course by the Board (Tr. 51), prior to his 1984 application, on the basis of affidavits provided by the Cuban Nurses in Exile Association that he was licensed in Cuba (Tr. 141, 142). Those affidavits are no longer relied on by the Board as proof of licensure because of inconsistencies and inaccuracies in them (Tr. 141, 144).
Recommendation Based on the foregoing, it is recommended that the Board of Nursing enter a final order DENYING the application of Lazaro Saavedra for licensure by endorsement. DONE AND ORDERED this 4th day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April 1986.
The Issue Whether Petitioner is entitled to reinstatement of his license as a registered nurse in the State of Florida.
Findings Of Fact Petitioner is a nurse licensed by the Florida Board of Nursing, having nursing license number RN 2651872. On June 3, 1998, an Administrative Complaint was filed against Petitioner in Case No. 1998-00739, asserting that Petitioner engaged in unprofessional conduct in violation of Section 464.018(1)(8), Florida Statutes. The parties entered into a Settlement Agreement and on March 3, 2000, a Final Order was filed by the Board of Nursing approving the Settlement Agreement and imposing one year of probation. Pursuant to an Order to Show Cause, Petitioner appeared before the Board of Nursing in August 2000. By Order filed September 25, 2000, the Board of Nursing extended Petitioner's probation for six months and required him to obtain an evaluation coordinated by the Intervention Project for Nurses (IPN) within six months. On approximately March 29, 2002, an Administrative Complaint was filed against Petitioner in Case No. 2001-12091, alleging that Petitioner had engaged in unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes, and violated the terms of the Final Order in Case No. 1998-00739, in violation of Section 456.072(1)(q), Florida Statutes. On October 28, 2003, the Board of Nursing entered a Final Order with respect to Case No. 2001-12091. The Final Order reprimanded Petitioner; suspended Petitioner's license for a period of three years; required him to undergo an evaluation coordinated by PRN; and imposed a $1,000.00 administrative fine. Specifically, the Final Order provided: The license of Hubert H. Herring is hereby reprimanded. The licensee, Hubert H. Herring, is suspended for three (3) years and thereafter until she/he personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing. That demonstration shall include at least an in-depth psychological evaluation coordinated through the Intervention Project for Nurses, with an MMPI or other appropriate testing from a psychiatrist, psychologist, or other licensed mental health counselor experienced in the treatment of addiction. The licensee shall supply a copy of this Order to the evaluator. The evaluation must contain evidence that the evaluator knows of the reason for referral. The evaluator must specifically advise this Board that the licensee is presently able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained. The licensee must also submit prior to appearance before the Board a reentry plan, proof of continued treatment and counseling if recommended in the psychological evaluation, and demonstration of two years of documented continuous drug free/alcohol free living. The Board reserves the right to impose reasonable conditions of reinstatement at the time the licensee appears before the Board to demonstrate her/his present ability to engage in the safe practice of nursing. Petitioner appealed the Final Order and on January 28, 2005, the First District Court of Appeal affirmed the Final Order in Case No. 1D03-5084. The mandate of the district court issued February 15, 2005. See Herring v. Department of Health, 891 So. 2d 1167 (Fla. 1st DCA 2005). No stay of the penalty was sought during the pendency of the appeal. On November 18, 2004, the Department of Health filed an Administrative Complaint against Petitioner in Case No. 2004- 01520, alleging a violation of the Final Order in Case No. 2001- 12901. On or about June 29, 2005, the Board of Nursing filed a Final Order in Case No. 2004-01520, revoking Petitioner's license. Petitioner appealed this Final Order. The Department of Health requested the First District Court of Appeal to relinquish jurisdiction to the Board of Nursing because the penalty of revocation was outside the Board's disciplinary guidelines. The Court granted the Motion to Relinquish Jurisdiction and on January 10, 2006, the Board vacated the Final Order revoking Petitioner's license. On that same day, the Board issued a new Final Order in Case No. 2004- 01520, that reprimanded Petitioner's license; fined him $250 and imposed investigative costs of $1,592.21; and suspended Petitioner's license until he made payment of the fine and costs of the most recent Final Order and "demonstrates compliance with each and every term of the Final Order in Case No. 2001-12091 filed on October 28, 2003." On February 20, 2006, the First District Court of Appeal dismissed the appeal as moot in light of the vacation of the Final Order being appealed. Petitioner has not been authorized to practice nursing in the State of Florida since October 28, 2003, some four and a half years ago. No evidence was presented at hearing to show whether Petitioner has attended continuing education courses during this time or taken any steps to keep his nursing skills and knowledge up to date. Petitioner submitted the deposition of Dr. Bernard, a physician with whom he worked prior to the suspension of his license. He also presented the testimony of Karen Clark, the staffing coordinator at Tandem Rehabilitation Center. Ms. Clark served in that capacity from December 2002 through August 2004, and knew Mr. Herring during her employment there. According to her testimony, Mr. Herring was a nursing supervisor and was still employed at Tandem when she left in August 2004. She considered him a good, "team player" employee.1/ No testimony was presented, however, regarding his current ability to practice with reasonable skill and safety. Mr. Herring petitioned the Board for reinstatement of his license. His re-entry plan "is simple, to go back to work and provide for my family." He submitted information showing he had paid his fines, renewed his license, and sought evaluation from IPN providers. He stated, however, that he could not and would not be involved with IPN, both because of cost and what he considered to be "extreme prejudice" to him. Two evaluations from IPN providers were presented to the Board of Nursing. The first, prepared by Dr. Selah of the Center for Medicine and Psychiatry, Inc., indicates that in Dr. Selah's view, Petitioner was not safe to practice nursing with reasonable skill and safety. The second, prepared by Dr. Judy Rivenbark, stated that Petitioner would be safe to practice nursing only if he obtained therapy, entered into and complied with an IPN contract and demonstrated that he was current and up to date on his nursing skills. Although considered by the Board of Nursing, no testimony was presented at hearing from either professional. The Board considered his request and on December 27, 2006, entered an Order on Petition for Reinstatement denying his request.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered denying Petitioner's request for reinstatement of his nursing license. DONE AND ENTERED this 22nd day of April, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2008.
Findings Of Fact Petitioner, Carolyn A. Keegan, is a licensed Practical nurse in the State of Maine and has been since October 10, 1947, when that State first began licensing nurses. Petitioner attended the Eastern Maine General School of Nursing between September, 1940, and June, 1942, but did not graduate. She has been employed as a nurse since that time. When the State of Maine began licensing nurses in 1947, Petitioner was grandfathered in as a licensed practical nurse without being required to take an examination or graduating from an accredited nursing program. On June 12, 1980, Petitioner applied for licensure as a licensed practical nurse in the State of Florida by endorsement. This application was denied by the Board of Nursing on July 11, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carolyn A. Keegan for licensure as a licensed practical nurse be denied. It is further RECOMMENDED that Petitioner be permitted to take the appropriate examination at the earliest practicable time. DONE and ENTERED this 8th day of January 8, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Carolyn A. Keegan 11839-108th Avenue, North Largo, Florida 33540 Linda A. Lawson, Esquire Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301
The Issue The issue in this case is how the Board of Nursing (Board) should discipline the Respondent’s registered nurse license for: pleading guilty to two counts of larceny-grand theft of a controlled substance, which were third degree felonies under section 812.014(2)(c)13., Florida Statutes1/; pleading nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor under section 893.147(1), Florida Statutes; pleading nolo contendere to larceny-petit theft, a second degree misdemeanor under section 812.014(3)(a), Florida Statutes; and failing to report the criminal violations to the Board within 30 days.
Findings Of Fact In April 2014, the Respondent became licensed to practice as a registered nurse in Florida. He holds license RN 9381249. He also has a certified nursing assistant license, which he has held since 2009. From November 2014 until January 2015, the Respondent was working as a registered nurse at Sarasota Memorial Hospital. While working there, he diverted controlled substances for his own use. Specifically, he was putting Percocet pills prescribed for, but not used by, patients in his pocket and taking them later himself for pain. The Respondent was found out, fired, arrested, and charged with criminal violations. In August 2015, the Respondent entered pleas of: guilty to two counts of larceny-grand theft of a controlled substance, third degree felonies in violation of section 812.014(2)(c)13.; nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor in violation of section 893.147(1); and nolo contendere to larceny-petit theft, a second degree misdemeanor in violation of section 812.014(3)(a). The Respondent was sentenced to a 14 month-long drug court program (which included random drug sampling), probation, fees and costs, and was prohibited from practicing as a nurse while he was on probation. Adjudication was withheld. The Respondent did not report his pleas and convictions to the Board in writing. He testified that he thought the Board had sufficient notice because an unidentified representative of the Board was present at the plea hearing and asked the judge to have the Respondent repeat the pleas so they could be properly and clearly recorded for use in a license discipline proceeding, and because he telephoned the Board soon after the incident and was told to stop practicing nursing. The Respondent successfully completed the drug court program and probation, and fulfilled all other conditions of his pleas and sentences. The Respondent acknowledged that his diversion of controlled substances from his place of employment was wrong, a mistake, and showed poor judgement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent guilty of violating sections 456.072(1)(x) and 464.018(1)(e); reprimanding him; fining him $500; requiring IPN evaluation and treatment, if necessary; and assessing the costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of February, 2017.
