00-002944PL Department Of Health, Board Of Nursing vs. Cynthia Chance Status: Closed Recommended Order on Friday, December 29, 2000.

Summary: Respondent`s failure to secure and document the receipt of controlled substances and falsification of time cards constitute unprofessional conduct and subject Respondent to disciplinary sanctions

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

BOARD OF NURSING )

)

Petitioner, )

)

vs. ) Case No. 00-2944PL

)

CYNTHIA CHANCE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A formal hearing was held pursuant to no tice on November 15,

2000, in Jacksonville, Florida, before Barbara J. Staros,

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Agency for Health Care Administration

Building 3, Room 3231A

2727 Mahan Drive

Tallahassee, Florida 32308-5403

For Respondent: Walter Bell, Esquire

1482 East 25th Street

Jacksonville, Florida 32206

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set

forth in the Second Amended Administrative Complaint and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Health, issued an Administrative

Complaint on August 13, 1999, alleging one count of professional

violation against Respondent, a licensed practical nurse. The

Administrative Complaint was amended on January 10, 2000, by

adding an additional count.

Respondent disputed the allegations in the Amended Complaint

and petitioned for a formal hearing involving disputed issues of

material fact. The case was referred to the Division of

Administrative Hearings on or about July 18, 2000. A formal

hearing was set for November 15, 2000. On October 10, 2000,

Petitioner filed a Motion for Leave to Amend Administrative

Complaint. The motion was granted to proceed pursuant to

Petitioner's Second Amended Administrative Complaint.

The parties filed a Joint Pre-hearing Stipulation. At

hearing, Petitioner presented the testimony of Lu Apostol, Fely

Cunanan, Pamela Schiesser, Barbara Kelley, Kim Harrell, Amy Hill,

Susan Ranson, Anne Hollander, Erlinda Serna, and Carol Lee. Lu

Apostol and Fely Cunanan were each accepted as an expert in

nursing and standards of nursing practice. Petitioner's Exhibits

1-5 and 7 were admitted into evidence. Petitioner requested

official recognition of Chapter 464, Florida Statutes, and

Chapter 64B9, Florida Administrative Code (these statutes and

rules had been pre-marked as Petitioner's Exhibit 6). No

opposition was stated to that request and the request was

granted. Respondent presented the testimony of Tresa Della

Calfee and Respondent. Respondent's Exhibit 1 was admitted into

evidence.

A Transcript, consisting of one volume, was filed on

December 1, 2000. On December 11, 2000, Petitioner timely filed

its Proposed Recommended Order, which has been considered in the

preparation of this Recommended Order. Respondent has not filed

any post-hearing submission.

FINDINGS OF FACT

Stipulated Facts

1. The Petitioner is the State Agency charged with the

regulation of the practice of nursing pursuant to Chapters 20,456

(formerly Chapter 455, Part II; see Chapter 2000-160, Laws of

Florida) and 464, Florida Statutes. Pursuant to the authority of

Section 20.43(3)(g), Florida Statutes, the Petitioner has

contracted with the Agency for Health Care Administration to

provide consumer complaint, investigative and prosecutorial

services required by the Division of Medical Quality Assurance,

councils or boards, as appropriate, including the issuance of

emergency orders of suspension or restriction.

2. Respondent is Cynthia Chance. Respondent is a Licensed

Practical Nurse in the State of Florida, having been issued

license No. PN 0855441.

3. On or between March 1997-May 1997, Respondent was

employed by Health Force, a nurse-staffing agency.

4. In or about March 1997, Respondent was assigned to work

various shifts at Baptist Medical Center-Beaches. In or about

March 1997, Respondent submitted time slips to Health Force

alleging that she had worked an eight-hour shift on March 18,

1997. In or about March 1997, Respondent submitted time-slips to

Health Force alleging that she had worked an eight-hour shift on

March 21, 1997.

Findings of fact based on the evidence of record

Missing Drugs

5. On May 13, 1997, Health Force received a "late call"

from Cathedral Gerontology Center (Cathedral) needing a "stat"

nurse because one of their nurses had not come to workesa

Streeter (now Calfee), administrator for Health Force, called

Respondent who reported to Cathedral at 6:50 p.m. Kim Harrell,

R.N., a supervisor at Cathedral, was the nurse who stayed until

Respondent arrived.

6. Also at 6:50 p.m. on May 13, 1997, Barbara Kelley, R.N.,

received and signed for a delivery of medications for residents

from American Pharmaceutical Services. Included in that delivery

was an order of Alprazolam (Xanax) and an order of Diazepam

(Valium) for two residents on the floor where Respondent was

working that evening. The delivery came with a separate

medication or narcotics card for each medication.

7. There were two floors of residents at Cathedral. Each

floor had its own medication cart and its own nurse assigned to

the floor. Controlled medications have a separate box in the

medication cart with a separate key. The nurse on each floor had

a key to her own medication cart but did not have a key to the

medication cart of the other floor. The Director of Nursing

(DON) also had a key to both medication carts in the event of an

emergency such as a lost key.

8. After receiving and signing for these drugs, Nurse

Kelley locked the medications that belonged to her medication

cart in it and inserted the narcotic cards for those medications

into the notebook that corresponded to her cart. She then gave

the medications and control sheets that belonged to Respondent's

medication cart to Respondent, placing them in Respondent's hand.

Nurse Kelley told Respondent that these were controlled drugs

and instructed Respondent to lock up the medications in

Respondent's medicine cart.

9. There is conflicting testimony as to what happened next.

Respondent admits to receiving the medications and the control

cards. However, Respondent maintains that she placed the

medications in the locked drawer of the medication cart and

inserted the cards into the notebook in front of Nurse Kelley,

whereas Nurse Kelley maintains that she walked away immediately

after giving the drugs and cards to Respondent and did not see

her place the drugs in the controlled drug lock box or the cards

in the notebook.

10. It was a policy at Cathedral for the out-going nurse to

count controlled drugs with the on-coming nurse. When Respondent

arrived on the night in question, she counted the controlled

medications with Nurse Harrell. The narcotics count for both

narcotics cards and actual doses was 16. At the end of her

shift, Respondent counted the controlled medications with the on-

coming nurse, Pamela Schiesser. The number of narcotics cards

and tablets or doses was 16, the same as when Respondent came on

duty.

11. Nurse Schiesser was scheduled to work a double shift,

11 to 7 and 7 to 3. During the 11 to 7 shift, Nurse Schiesser

was the only nurse for both floors of residents and she,

therefore, had the key to both medication carts.

12. Sometime during the 7 to 3 shift on May 14, 1997, Nurse

Schiesser called the pharmacy to find out about a medication

order she had placed for two residents so they would not run out.

She was informed by the pharmacy that the drugs had been

delivered the evening before and that they had been signed for by

Nurse Kelley. She checked the delivery sheets and confirmed that

Nurse Kelley had signed for the medications. After determining

that there were no cards for the missing drugs and the drugs were

not in the cart, she then reported to her supervisor, Kim

Harrell, that the medication had been delivered but could not be

located.

13. Nurse Schiesser and Nurse Harrell checked the entire

medication cart, the medication cart for the other floor and the

medication room but did not find the missing medications. Nurse

Harrell then notified the Assistant Director of Nursing (ADON),

Lu Apostol, and the Director of Nursing (DON), Fely Cunanan,

regarding the missing medications.

14. The ADON began an investigation and secured written

statements from all of the nurses on her staff who had access to

the drugs: Nurses Kelley, Harrell, and Schiesser. She called

Nurse Kelley to confirm that she had received the medications

from the pharmacy and confirmed that the two missing medications,

Alprazolam (Xanax) and Diazepam (Valium), were given by Nurse

Kelley to Respondent. The ADON also called Tresa Streeter (now

Calfee), the administrator of Health Force for whom Respondent

worked to notify her of the missing medications.

15. On May 14, 1997, Ms. Streeter (Calfee) called

Respondent and informed her about the missing drugs.

16. On May 15,2000, Ms. Streeter and Respondent went to

Cathedral for a meeting. They were informed that the two missing

drugs had not been located and they were shown the written

statements of the other nurses. Respondent admitted that the

drugs had been given to her the night before by Nurse Kelley, but

stated that she had locked the drugs in her cart. She denied any

further knowledge about the drugs.

17. At Ms. Streeter's suggestion, Respondent took a blood

test on May 15, 2000. 1 The drug test result was negative thus

indicating that the drugs were not in her blood at the time of

the test, which was two days after the drugs were missing. No

competent evidence was presented as to how long it takes for

these drugs to leave the bloodstream.

18. Cathedral had a policy that required that all

controlled substances be properly accounted for and secured by

each nurse responsible for the drugs. This policy was verbally

communicated from the off-going nurse to the oncoming nurse.

When Nurse Kelley gave the drugs and drug cards in question to

Respondent, she specifically instructed Respondent to lock up the

drugs in the narcotics drawer.

19. Respondent maintains that other people had keys to her

medication cart and could have taken the drugs after she put them

in the locked narcotics box. This testimony is not persuasive.

Every witness from Cathedral testified unequivocally that there

was only one key in the facility for each medication cart and

that key was in the possession of the nurse assigned to that

cart. The only other key, which was in the possession of the

Director of Nursing, was not requested or given to anyone at

anytime material to these events.

20. The persuasive testimony is that Respondent was the

only person during her shift with a key to her medication cart.

That key was passed to Nurse Schiesser who discovered that the

drugs and narcotics cards were not in the medication cart or

notebook.

21. The count of the drugs and the cards on hand did not

show that anything was missing at the change of shift from

Respondent to Nurse Schiesser as the count was 16, the same as

when Respondent came on the shift. If Respondent had put the

drugs and corresponding cards in the medication cart, the count

should have been 18. The only logical inference is that

Respondent did not put the drugs or cards in the cart.

22. In the opinion of the two witnesses accepted as experts

in nursing and nursing standards, Respondent's failure to

properly secure the narcotics and to document the receipt of

these controlled drugs constitutes practice below the minimal

acceptable standards of nursing practice.

Time-Slips

23. While employed by Health Force as an agency nurse,

Respondent was assigned at various times to work at Baptist

Medical Center-Beaches (Beaches). Respondent submitted time

cards or slips for each shift she worked to Health Force so that

she would be paid for the work. Respondent submitted time-slips

for working at Beaches on March 18 and 21, 1997.

24. When Health Force billed Beaches for these two dates,

Anne Hollander, the Executive Director of Patient Services, the

person responsible for all operations at Beaches since 1989,

determined that Respondent had not worked on either March 18 or

21, 1997. Ms. Hollander faxed the time-slips back to Health

Force for verification. She advised Health Force that Respondent

was not on the schedule as having worked on either of those

dates. She also advised Health Force that the supervisor's

signatures on the two time-slips did not match anyone who worked

at Beaches. Ms. Hollander is intimately familiar with the

signatures of all the supervisors who are authorized to sign

time-slips at Beaches and none of them have a signature like the

signatures on the two time-slips.

25. Health Force did an investigation and ended up paying

Respondent for the two days, but did not further invoice Beaches.

Health Force was never able to determine whose signatures were on

the time-slips. Health Force did have Respondent scheduled to

work at Beaches on March 21, 1997, but not on March 18, 1997.

26. Beaches keeps a staffing sheet for every day and every

shift. The supervisors are responsible for completion of the

staffing schedules to ensure that the necessary staff is

scheduled to work on each shift. These staffing sheets are used

for both scheduling and doing the payroll. According to

Ms. Hollander, it is not possible that Respondent's name was just

left off the staffing sheets. The staffing sheets are the

working sheets. If a person works who is not originally on the

staffing sheet, the supervisor writes that person's name into the

correct column at the time they come to work. Ms. Hollander has

been familiar with these staffing sheets for 12 years and does

not recall any time when someone's name has been left off the

staffing sheet when he or she had worked.

27. The two supervisors who testified, Erlinda Serna and

Carol Lee, are equally clear that in their many years of

experience as supervisors at Beaches, no one has worked and not

been on the staff schedules. Anybody who worked would show up on

the schedule. Every shift and every day should be on the

staffing schedules. Ms. Serna is unaware of any time in her 10

years at Beaches that someone's name was left completely off the

schedules, but that person actually worked.

28. Respondent's name was on the staffing schedule for

March 21, 1997, but it was crossed out and marked as cancelled.

When agency nurses are scheduled at Beaches, but are not needed,

they are cancelled with the agency. If the agency fails to

timely notify the nurse and the nurse shows up for work, the

agency must pay her for two hours. If the hospital fails to

notify the agency timely and the nurse shows up for work, then

the hospital must pay the nurse for two hours. In no event is a

nurse who is cancelled paid for more than two hours.

29. There are times when a nurse is cancelled and shows up

for work, but the hospital has a need for the nurse either as a

nurse or in another capacity such as a Certified Nursing

Assistant (CNA). If that happens, the nurse's name is again

written into the nursing unit staffing schedule.

30. For March 18, 1997, Respondent's name is not on the

schedule for Beaches. She did not work in any capacity on

March 18, 1997. For March 21, 1997, Respondent's name was on the

schedule, but she was cancelled. Even if she had not been timely

notified that she was cancelled and she showed up for work, the

most she could have billed for was two hours. If she had stayed

and worked in a different capacity, her name would have been

rewritten into the staffing schedule. Beaches is very strict and

follows a specific protocol. No one except the supervisors is

allowed to sign time cards. The signatures on these two time

cards do not belong to any supervisor at Beaches. Therefore, it

can only be concluded that Respondent did not work on March 18 or

21, 1997, at Beaches and that she submitted false time-slips for

work she did not do on March 18 and 21, 1997.

31. In June 1997, Respondent was also working as an agency

nurse for Maxim Healthcare Services (Maxim). On June 8, 1997,

Respondent submitted a time ticket to Maxim and to Beaches

indicating that she had worked eight-hour shifts at Beaches on

June 2, 3, 4, and 5, 1997. All four days were on the same time

ticket and purported to bear the initials and signature of Carol

Lee. This time ticket was brought to Ms. Hollander's attention

because Beaches had a strict policy that only one shift could

appear on each time slip. Even if a nurse worked a double shift,

she would have to complete two separate time tickets, one for

each shift. Under Beaches policy, no time ticket would ever have

more than one shift on it. The time tickets are submitted to

Ms. Hollander's office daily with the staffing schedules that

correspond. Therefore, a time ticket for a person who is not on

the staffing schedule would immediately stand out.

32. When Ms. Hollander was given the time ticket for

June 2-5, 1997, she investigated and reviewed the staffing sheets

for those days. Respondent was not listed on any of the staffing

schedules. Ms. Hollander then showed the time ticket to Erlinda

Serna, who was the nursing supervisor on the 3 to 11 shift.

Nurse Serna verified that Respondent had not worked on the shift

any of those days.

33. Ms. Hollander then showed the time-slip to Carol Lee,

the 11 to 7 nursing supervisor. Carol Lee verified that she had

not initialed or signed the time ticket and that the initials and

signature were a forgery. Nurse Lee would not have signed a time

ticket with more than one shift per time ticket because she was

well aware of the policy prohibiting more than one shift per time

ticket. Nurse Lee verified that Respondent had not been

scheduled to work any of those days and that Respondent had not

worked on June 3, 4, or 5, 1997.

34. These inquiries to Nurse Serna and Nurse Lee took place

within a few days after the dates for which Respondent had

submitted this time ticket. Therefore, the matter was fresh in

the minds of both nursing supervisors. Both are certain that

Respondent was neither scheduled nor worked on June 2-5, 1997.

Only nursing supervisors at Beaches are authorized to sign time

tickets.

35. Maxim Healthcare has a policy of never working a nurse

in excess of 40 hours in one week. The same policy was in effect

in 1997. Susan Ranson, the records custodian who also staffs for

Maxim on the weekends and assists in their billing, indicated

that Respondent was paid by Maxim for working at another facility

the same week as June 2-5, 1997. June 2-5, 1997, are a Monday

through Thursday. Specifically, Respondent submitted a time

ticket to Maxim for another facility showing that she worked 12

hours on Saturday, June 7, 1997, and 13 hours on Sunday, June 8,

1997. Maxim pays from Monday through Sunday. If Respondent had

worked 32 hours at Beaches on Monday through Thursday and then 25

hours at another facility on Saturday and Sunday, she would have

worked more than 40 hours in one week, which would have violated

their policy and would have required Maxim to pay overtime. When

Maxim gets a request for a nurse and has no one to send who would

not exceed 40 hours in one week, rather than exceed 40 hours, the

agency does not staff the job.

36. In the disciplinary document from Health Force dated

June 18, 1997, Health Force advised Respondent that it would not

be scheduling her based on the complaints they received regarding

false billing, the missing drugs at Cathedral, and another

incident at Beaches that occurred during this same time.

37. Taken in its totality, the testimony of Respondent is

not credible.

38. Respondent's explanation of the discrepancy in the

count of drugs and corresponding cards is that during her shift

"there was [sic] one or two cards that only had one or two pills

on them, so you just throw them away. And that's what made it

back to 16." This explanation is unpersuasive. If there had

been any pills left in the drawer from cards that Respondent

threw away, the count would have been off at the change of shift.

Moreover, several witnesses testified as to the care that is

taken to carefully account for all narcotics. Respondent's

assertion that narcotic pills were simply thrown away is not

credible. Nurse Schiesser clearly remembered that there were no

cards for the medications in question and there were no

medications from this delivery in the medication cart.

39. Respondent has been previously disciplined by the Board

of Nursing in the Board's case No. 98-20122.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

41. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the Second

Amended Administrative Complaint. See Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

42. Section 464.018(1)(h), Florida Statutes (1997), makes

it a violation of the Nurse Practice Act for a licensee to engage

in "unprofessional conduct, which shall include, but not be

limited to, any departure from, or the failure to conform to, the

minimal standards of acceptable and prevailing nursing

practice . . ."

43. Rule 64B9-8.005(1), Florida Administrative Code,

defines unprofessional conduct to include:

Inaccurate recording, falsifying or altering

of patient records or nursing progress

records, employment applications or time

records. . .

44. In this case, the persuasive evidence indicates that

Respondent received the Xanax and Valium from Ms. Kelley and

thereafter, the drugs could not be located. If Respondent had

secured the drugs in her locked narcotics box as she should have,

the drugs would not have disappeared. The only plausible

explanation is that Respondent failed to secure the drugs as she

should have. These two drugs are controlled substances pursuant

to Section 893.03(4), Florida Statutes, and the handling of

controlled substances is controlled by the standards of nursing

practice. The experts were unequivocal that Respondent failed to

conform to the minimal acceptable standards of nursing practice

by failing to account for the whereabouts of these drugs.

Respondent's failure to secure and document the receipt of these

controlled substances constitutes practice below the minimal

acceptable standards of nursing practice. Petitioner has carried

its burden of proving this violation of Section 464.018(1)(h),

Florida Statutes, by clear and convincing evidence.

45. As to the second Count in the Administrative Complaint,

the evidence is equally clear that Respondent falsified her time

cards to Health Force for March 18 and 21, 1997, and to Maxim for

June 2-5, 1997, for work she allegedly performed at Beaches. The

clear and convincing evidence is that the signatures and the

initials on these time tickets are forgeries. No supervisor from

Beaches signed these time cards. Respondent's submission of

these false time cards in an attempt to receive compensation

constitutes falsification of employment and time records in

violation of Section 464.018(1)(h), Florida Statutes, and as

further defined in Rule 64B9-8.005(1), Florida Administrative

Code. Petitioner has carried its burden of proving these

allegations by clear and convincing evidence.

46. It is concluded that Respondent's testimony to the

contrary is implausible and unpersuasive. It was in direct

conflict with the testimony of almost every other witness. These

conflicts are resolved against Respondent and Respondent's

testimony is rejected.

47. Respondent is guilty of both counts of unprofessional

conduct and violating the rules defining unprofessional conduct.

Rule 64B9-8.006, Florida Administrative Code, details the

disciplinary guidelines of the Board of Nursing, together with

the range of penalties and the aggravating and mitigating

circumstances. Rule 64B9-8.006(3)(i), Florida Administrative

Code, specifies the penalty for unprofessional conduct in the

delivery of nursing services to be a fine from $250 to $1000 plus

from one-year probation to suspension until proof of safety to

practice, followed by probation with conditions. Rule 64B9-

8.006(2), Florida Administrative Code, further states that the

disciplinary guidelines are based on a single count violation of

each provision listed; however, "[m]ultiple counts of violations

of the same provision of Chapter 464, or the rules promulgated

thereto, or other unrelated violations will be grounds for

enhancement of penalties."

48. Furthermore, all aggravating or mitigating

circumstances are subject to proof at the formal hearing by clear

and convincing evidence. Rule 64B9-8.006(4)(a), Florida

Administrative Code. In this case, Petitioner has shown that

Respondent has a prior and recent disciplinary history with the

Board. Additionally, the offense of falsifying time cards is an

offense that has been repeated in the instant case. These are

both serious aggravating factors that must be considered.

49. In arriving at an appropriate penalty in the instant

case, consideration has been given to the disciplinary guidelines

set forth in Rule 64B9-8.006, Florida Administrative Code, above.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Respondent be found guilty of one count of

violating Section 464.018(1)(h), Florida Statutes, by failing to

secure and document receipt of the drugs at Cathedral Gerontology

Center;

That the Respondent be found guilty of one count of

violating Section 464.018(1)(h), Florida Statutes, and of

violating Rule 64B9-8.005(1), Florida Administrative Code, by

falsifying employment and time records on multiple occasions; and

That a penalty be imposed consisting of a fine of $1000 and

payment of costs associated with probation, together with a

reprimand and a three-year suspension of license to be followed

by a two-year probation with conditions as deemed appropriate by

the Board of Nursing. Reinstatement of Respondent's license

after the term of the suspension shall require compliance with

all terms and conditions of the previous Board Order and her

appearance before the Board to demonstrate her present ability to

engage in the safe practice of nursing, which shall include a

demonstration of at least three years of documented compliance

with the Intervention Project for Nurses.

DONE AND ENTERED this 29th day of December, 2000, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 2000.

ENDNOTE

1 / There was conflicting evidence as to whether the drug test was

performed on the 14th or 15th. The weight of the evidence,

including the written lab result, shows that the test was

conducted on May 15, 2000.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

Agency for Health Care Administration

Building 3, Room 3231A

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Walter Bell, Esquire

1482 East 25th Street

Jacksonville, Florida 32206

Ruth R. Stiehl, Ph.D., R.N.

Executive Director

Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.