09-004301PL Department Of Health, Board Of Nursing vs. Donna K. Stevens, C.N.A. Status: Closed Recommended Order on Thursday, December 3, 2009.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent violated a prior final order of the Board by failing to submit required quarterly reports.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 09-4301PL

)

DONNA K. STEVENS, C.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 20, 2009, a duly-noticed hearing by video

teleconference was held with sites in Tallahassee and

Gainesville, Florida, before Lisa Shearer Nelson, an

administrative law judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael G. Lawrence, Jr., Esquire

William F. Miller, Esquire

Department of Health

4052 Bald Cypress Way Bin C-65

Tallahassee, Florida 32399

For Respondent: Donna K. Stevens, pro se

Post Office Box 402

McIntosh, Florida 32664

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent committed

the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On April 27, 2009, the Department of Health filed an

Administrative Complaint against Respondent, Donna Stevens,

alleging violations of Section 464.204(1)(b), Florida Statutes

(2007, 2008) 1/ and Section 456.072(1)(q), Florida Statutes.

Respondent disputed the allegations and requested a hearing

pursuant to Section 120.57(1), Florida Statutes. On August 13,

2009, the matter was referred to the Division of Administrative

Hearings for assignment of an administrative law judge.

On August 24, 2009, a Notice of Hearing by Video

Teleconference was issued setting the hearing for October 20,

2009. Petitioner filed Petitioner’s Motion for Official

Recognition on October 12, 2009, requesting official recognition

of Sections 20.43, 464.204, 456.072, and Section 456.002(4),

Florida Statutes, and Florida Administrative Code Rule 64B9-

15.009. The Motion was granted at the commencement of the

hearing, which proceeded as scheduled.

At hearing, Petitioner presented testimony of Shaila

Washington, and Petitioner's Exhibits 1-4 were admitted into

evidence. Respondent testified on her own behalf and submitted

no exhibits. The proceedings were recorded and the Transcript

was filed with the Division on November 2, 2009. Although

afforded the opportunity to do so, Respondent indicated at

hearing that she would not file a proposed recommended order and

has not done so. Petitioner timely filed a Proposed Recommended

Order, which has been carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of nursing assistance pursuant to Section

20.43 and Chapters 456 and 464, Florida Statutes.

2. At all times relevant to these proceedings, Respondent

was a certified nursing assistant, having been issued license

number 84961. Her address with the Department of Health is Post

Office Box 402, McIntosh, Florida 32664.

3. On June 25, 2007, a Final Order was entered by the Board

of Nursing against Respondent.

4. The Final Order required Respondent to pay a fine of

$50.00, enroll in and successfully complete courses in Legal

Aspects for Nursing Assistants, and placed Respondent on

probation for two years.

5. A condition of the two-year probation was “[w]hether

employed as a nurse or not , the licensee shall submit written

reports to the Nursing Compliance Officer which shall contain the

licensee’s name, license number, and current address; the name,

address, and phone number of each current employer; and a

statement by the licensee describing her employment. This report

shall be submitted to the Nursing Compliance Officer every three

(3) months in a manner as directed by the Nursing Compliance

Officer.” (Emphasis supplied.)

6. Respondent’s probation required that she “be responsible

for assuring that reports from nursing supervisors will be

furnished to the Nursing Compliance Officer every three (3)

months. That report shall describe the licensee’s work

assignment, work load, level of performance, and any problems."

7. Quarterly self-reports and reports from her nursing

supervisor, if any, were due to the Department on September 24,

2007, December 24, 2007, March 24, 2008, June 24, 2008,

September 24, 2008, December 24, 2008, March 24, 2009, and

June 24, 2009.

8. Failure to comply with the terms of probation contained

in the Final Order without prior written consent from the Board

of Nursing was a violation of Respondent’s probation.

9. As part of the Final Order a Notice of Appeal Rights was

included, indicating that Respondent had 30 days to file a Notice

of Appeal with the clerk of the department pursuant to Section

120.68, Florida Statutes, if she wanted to challenge the Final

Order.

10. Shaila Washington, a compliance officer for the Board

of Nursing, was Respondent’s compliance officer.

11. As Respondent’s compliance officer, Ms. Washington

mailed Respondent the Board of Nursing's standard information

packet on July 18, 2007. The packet outlines the terms imposed

by the Board and summarizes what the Respondent needed to do in

order to comply, including definite due dates listed above.

The letter accompanying the information packet states in bold,

"Remember, it is your responsibility to read the final order and

ask questions if you do not understand it."

12. Respondent did not contact her compliance officer

regarding the information packet mailed to her. She also did not

appeal the final order.

13. Ms. Washington testified, and Respondent confirmed,

that Respondent failed to submit any of the quarterly reports, by

Respondent or any supervisor, as required pursuant to the terms

of Respondent’s probation.

14. Respondent stated that she did not file any of the

reports because she was not working as a CNA. However, the Final

Order was clear that even if Respondent was not employed, she was

required to follow the probation terms and submit the reports.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

16. Petitioner bears the burden of proof to demonstrate the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

17. Clear and convincing evidence:

requires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be

precise and lacking in confusion as to

the facts at issue. The evidence must

be of such a weight that it produces in

the mind of the trier of fact a firm

belief or conviction, without hesitancy,

as to the truth of the allegations

sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

18. Sections 456.072 and 464.204, Florida Statutes, give

the Board of Nursing the power to impose disciplinary sanctions

on a certified nursing assistant for specified violations of the

Nursing Practice Act.

19. The Administrative Complaint alleges Respondent

violated Sections 464.204(1)(b) and 456.072(1)(q), Florida

Statutes. Section 464.204(1)(b) provides in pertinent part:

(1) The following acts constitute grounds

for which the board may impose disciplinary

sanctions as specified in subsection (2):

* * *

(b) Intentionally violating any provision of

this chapter, chapter 456, or the rules

adopted by the board.

20. Section 456.072(1)(q), Florida Statutes, provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(q) Violating a lawful order of the

department or the board, or failing to comply

with a lawfully issued subpoena of the

department.

21. In this case, Respondent admits she did not send in the

quarterly reports because she was not working at the time.

22. However, the Final Order clearly states “whether

employed as a nurse or not” before describing the reporting

requirements.

23. Respondent’s failure to submit personal reports

constitutes an intentional failure to comply with the Final Order

of the Board of Nursing.

24. The Final Order of the Board of Nursing is a lawful

order of the board as defined in Section 456.072(1)(q), Florida

Statutes.

25. A violation of Section 456.072(1)(q), Florida Statutes

(2008), is also a violation of Section 464.204(1)(b), Florida

Statutes (2008).

26. Therefore, Respondent is guilty of a violation of both

Sections 456.072(1)(q) and 464.204(1)(b), Florida Statutes.

27. Florida Administrative Code Rule 64B9-15.009(3)(n)

provides guidelines for disciplining a person guilty of violating

provides that for a first time offense, the penalty ranges from a

“$50 fine and compliance with rule or terms of prior order [to a]

$100 fine and suspension until compliance with rule or terms of

prior order.” The Department's recommended penalty in this case

is consistent with the Disciplinary Guidelines, and is

appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Florida Board of Nursing enter a Final Order

finding that Respondent has violated Section 464.204(1)(b) and

Section 456.072(1)(q), Florida Statutes. It is further

recommended that Respondent’s license to practice nursing

assistance be reprimanded and that Respondent’s license be

suspended, with the suspension stayed for 60 days to allow

Respondent to comply with the terms of the Board’s prior Final

Order. If within 60 days Respondent has not complied with the

terms of the Board’s prior Final Order, it is recommended that

the stay will be lifted and the suspension be imposed. The

suspension will be lifted upon Respondent’s compliance with the

Board’s prior Final Order.

DONE AND ENTERED this 3rd day of December, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2009.

ENDNOTE

1/ The Administrative Complaint alleges both years of the Florida

Statutes. With the exception of substituting "State Surgeon

General" for "Secretary of the Department" in Section 456.072,

there are no changes in any of the statutory provisions at issue

in this case. All references shall be to the 2007 Statutes unless

otherwise noted.

COPIES FURNISHED:

Michael G. Lawrence, Jr., Esquire

William F. Miller, Esquire

Department of Health

4052 Bald Cypress Way Bin C-65

Tallahassee, Florida 32399

Donna K. Stevens, C.N.A.

Post Office Box 402

McIntosh, Florida 32664

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

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.