99-002121 Sylem May Fearon vs. Department Of Health, Board Of Nursing Status: Closed Recommended Order on Wednesday, December 22, 1999.

Summary: Petitioner failed to prove that her nursing education in England 35 years ago is substantially equivalent to that required in the state of Florida and therefore is not eligible for licensure by endorsement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLEM MAY FEARON, )

)

Petitioner, )

)

vs. ) Case No. 99-2121

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, Mary Clark,

conducted a formal administrative hearing in the above-styled

case on August 19, 1999, by videoconference. Petitioner and

court reporter were present at the videoconference site in

Orlando, Florida; the Administrative Law Judge and Respondent's

counsel and witness were present at the videoconference site in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Sylem May Fearon, pro se

7019 Hiawassee Oak Drive

Orlando, Florida 32818

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF ISSUE

The issue for disposition in this proceeding is whether

Petitioner, Ms. Fearon, is entitled to licensure by endorsement

as a registered nurse in Florida. This requires a determination

of whether her education is substantially equivalent to or more

stringent than required in Florida, pursuant to Section 464.009,

Florida Statutes, and Rule 64B9-3.008, Florida Administrative

Code.

PROCEDURAL MATTERS

In response to an Order by the Board of Nursing denying her

application, Ms. Fearon requested an administrative hearing, and

the case was referred to the Division of Administrative Hearings

where it proceeded as described above.

At the hearing Ms. Fearon testified in her own behalf and

presented three documents in support of her application.

Petitioner's Exhibits nos. 1 and 3 were marked and received in

evidence; Petitioner's Exhibit no. 2 was withdrawn at the

Administrative Law Judge's suggestion as it was a duplicate

document in Respondent's licensure file.

Respondent, the Board of Nursing, presented testimony of its

executive director, Ruth Stiehi, Ph.D. and submitted a single

exhibit, the licensure file for Ms. Fearon, which was received in

evidence as Respondent's Exhibit no. 1 (composite exhibit).

The Transcript was filed on November 29, 1999; the court

reporter also included Petitioner's Exhibit nos. 1 and 3, which

were apparently misplaced by the court reporter after the

hearing. Copies of those exhibits will remain in the record; the

originals are being returned to Ms. Fearon, as requested.

On December 2, 1999, counsel for the Board of Nursing filed

a Proposed Recommended Order; on December 6, 1999, Ms. Fearon's

letter requesting a result of her hearing was received.

FINDINGS OF FACT

1. Petitioner Sylem May Fearon (Ms. Fearon) was born in

Jamaica, approximately 68 years ago. After being educated in

Jamaica she emigrated to England to pursue an education for the

practice of professional nursing.

2. Ms. Fearon took courses in geriatric nursing in England

for two years, then proceeded to do a three-year general training

program (1960-1963). After the general registered nursing

education, she took courses in midwifery for two years, passed an

examination, and was qualified as a certified nurse midwife in

September 1965.

3. Approximately 32 years ago, Ms. Fearon responded to

nursing recruiters from the United States; she emigrated to the

United States and commenced working as a staff nurse in a

hospital in Washington, D.C.

4. Since emigrating to the United States, Ms. Fearon has

become a citizen. She took the examinations for nursing

licensure in New York and Massachusetts and was successful in

obtaining licensure in both states, as well as in Washington,

D.C. She maintains current licensure as a registered nurse in

Washington, D.C.

5. Approximately two years ago, Ms. Fearon moved to Florida

and commenced application for licensure by endorsement as a

registered nurse in this state.

6. Florida's and other states' nursing boards do not have

reciprocity with each other in the sense that if you are licensed

in one state you may also practice in others. Florida and other

jurisdictions have licensure by endorsement which allows an

applicant for licensure to demonstrate that he or she has passed

an examination in another state and has the educational

background that is substantially the same or more stringent than

required by the state in which the applicant is seeking

licensure. This allows an applicant to become licensed without

having to take another examination but does not waive other

requirements for licensure such as education.

7. After Ms. Fearon applied for licensure by endorsement in

Florida, nursing board staff determined that she met all of the

requirements except for some areas of her education. The Board

of Nursing in Florida has developed guidelines to implement its

broad rules on what specific education is required. When staff

determines those guidelines are not met, the individual case is

brought to the Board which then makes the ultimate decision. In

Ms. Fearon's case, the Board accepted the deficiencies identified

by its staff and entered the order which Ms. Fearon has

challenged in this proceeding.

8. The staff and Board considered a transcript of

Ms. Fearon's registered nursing education from the University of

Sheffield School of Nursing and Midwifery, hereinafter referred

to as the official transcript. Ms. Fearon also provided copies

of a "Statement and Recommendation by Director of Nursing" dated

July 20, 1967, hereinafter referred to as Petitioner's

transcript, and a copy of correspondence from the Chesterfield

School of Nursing dated May 2, 1968, which stated Ms. Fearon

attended lectures in elementary psychology (8 hours), psychiatry

(5 hours) and head injuries (2 hours), hereinafter referred to as

the 1968 supplement. The official transcript includes coursework

that is not listed on Petitioner's transcript, and there are

discrepancies between the official transcript, Petitioner's

transcript, and the 1968 supplement; however, these discrepancies

did not prejudice Ms. Fearon, according to Dr. Stiehl, executive

director of the Board.

9. According to the official transcript, Ms. Fearon's

education at the Royal Hospital of Chesterfield in Derbyshire,

England, consisted of the following coursework in hours:

Theory Hours

Anatomy and Physiology 42

Personal and Communal Health 21

First Aid 15

Nutrition 8

History of Nursing 2

Elementary Psychology 8

Bacteriology and Principles of Asepsis 15

Theory of Nursing 66

Demonstration and Practical Classes 103

Bandaging 13

Principle of Surgery and Surgical

Nursing 15

Principle of Medicine and Medical

Nursing 19

Operating Theatre Technique 3

Gynecology and Introduction to

Obstetrics 10

Diseases of Ear, Nose and Throat 5

Genito-Urinary Diseases 4

Diseases of the Eye 3

Lecture by Anesthetist 1

Orthopaedics 4

Pharmacology 4

Communicable Disease 6

Venereal Disease 4

Pediatrics and Nursing of Sick

Children 8

Psychiatry 5

Social Services 4

Disease of the Skin 4

Radiography 2

Revision and Coaching Classes 10

Practical/Clinical Hours

Childrens 375

Female Surgery 487.5

Male Surgery 637.5

Ear, Nose and Throat 150

Opthalmic 300

Female Orthopaedic 75

Male Orthopaedic 300

Male Medical 412.5

Female Medical 187.5

Gynecology 300

Theatre 412.5

Casualty 300

Private Patient Unit 150

Relief Night Duty 225

Preliminary Training School 450

Study Blocks 225

10. A nursing license is issued by the Board of Nursing for

a general practitioner, i.e. the licensee can work in any area of

nursing. Therefore, to practice safely, the licensee needs a

basic theoretical underpinning in all the basic areas of nursing:

medical, surgical, obstetric, pediatric, and psychiatric nursing.

Hours spent in patient care is not equivalent to didactic study.

Study of theory provides the proper theoretical base to make good

clinical decisions.

11. The Board's guidelines establish these minimum

standards that must be demonstrated before its staff may approve

an applicant (education in hours):

Subject Theory Clinical

Medical Nursing 35 150

Surgical Nursing 35 150

Obstetric Nursing 20 70

Pediatric Nursing 20 70

Psychiatric Nursing 20 70

Community Health Nursing NO SPECIFIED

MINIMUM

12. Ms. Fearon's official transcript met the minimum

requirements in Medical Nursing (theory and clinical), Surgical

Nursing (theory and clinical), Pediatric Nursing (clinical only),

and Community Health Nursing.

13. The official transcript documents only 5 hours of

theory in Obstetric Nursing and no clinical hours. The official

Transcript demonstrates 300 hours of clinical experience in

"Gynecology"; however, gynecology cannot be substituted for

obstetrics training. Gynecology and obstetrics training are not

interchangeable. In gynecology the training looks at the female

patient in totality and at a different set of disease processes

than in obstetrics; in obstetrics the training focuses not only

on the mother but the growth of the fetus and the health of the

child. However, Dr. Stiehl reviewed Petitioner's Exhibit no. 3

(the midwife certificate) and determined that this documents the

necessary training in obstetrics.

14. The official transcript documents only 8 hours of

theory in Pediatric Nursing and no clinical hours. Ms. Fearon

testified that her midwifery training covered pediatrics;

however, it does not meet the requirements for theory and

clinical training in pediatrics. Midwifery training covers the

child from birth to age one; pediatrics covers children from

birth to age 18.

15. The official transcript documents only 5 hours of

theory in Psychiatric Nursing. The 1968 supplement demonstrates

5 hours in Psychiatric Nursing and 8 hours in Elementary

Psychology. Psychology cannot be substituted for psychiatric

training. Basic psychology training looks at normal behavior;

psychiatric nursing training deals with comparing normal with

abnormal and with disease processes such as manic depression.

The course in head injuries is not identified as training in

psychiatry. Petitioner's transcript documents 12 weeks of

clinical training in psychiatry, and the Board staff reviewer

gave her full credit for the needed hours. (See worksheet

Respondent's Composite Exhibit no 1.) Although Ms. Fearon

asserted that she had psychiatric training in her midwifery

program, it would not provide the necessary minimum education in

psychiatric theory.

16. Ms. Fearon's documentation demonstrates deficiencies in

psychiatric theory, pediatrics theory, and clinical training.

Even if the information on Petitioner's transcript regarding

psychiatric clinical experience is accepted, Petitioner still has

not demonstrated sufficient theoretical education.

17. Ms. Fearon testified that she completed two years of

geriatric nursing training. No documentation has been provided

of what the content of the course was. Education for a lower

level of licensure would not be considered as meeting the

requirements for licensure as a registered nurse. Ms. Fearon

also testified that she completed courses in order to sit

for her U.S. licensing examination. However, the courses were

not identified, and no documentation of the courses has been

submitted.

18. Ms. Fearon did not document the requirements for

licensure in New York in 1973, when she was first licensed in the

United States. Instead she has responded to the staff's inquires

with an effort to provide documentation of her education, most of

which occurred over 35 years ago in a program which no longer

exists.

CONCLUSIONS OF LAW

19. The Division of Aministrative Hearings has jurisdiction

of this action pursuant to Sections 120.569, 120.57 and 120.60,

Florida Statutes.

20. Section 464.009, Florida Satutes, provides that in

order to be licensed by endorsement in Florida as a nurse, the

applicant must demonstrate either that she:

(a) Holds a valid license to practice

professional or practical nursing in another

state of the United States, provided that,

when the applicant secured his or her

original license, the requirements for

licensure were substantially equivalent to or

more stringent than those existing in Florida

at that time; OR

(b) Meets the qualifications for licensure

in Section 464.008 and has successfully

completed a state, regional, or national

examination which is substantially equivalent

to or more stringent than the examination

given by the department.

21. Ms. Fearon attempted to demonstrate eligibility for

licensure under Section 464.009(1)(b), Florida Statutes. The

Board agrees that she successfully completed a state examination

substantially equivalent to or more stringent than the

examination approved by the Board, but she must also demonstrate

graduation from an approved nursing program. (See Section

464.008(2), Florida Statutes, and Rule 64B90-3.008, Florida

Administrative Code.)

22. The Board defines an "approved nursing program

equivalent" as a "nursing program conducted in a school, college

or university outside the State of Florida which has been

approved by the Board of Nursing in the jurisdiction in which it

is located, if such Board exists, and which demonstrates that it

meets the education criteria in Chapter 64B9-2 Rules." Rule

64B9-3.001(2), Florida Administrative Code.

23. The evidentiary basis for the Board's guidelines was

explained briefly at the hearing by Dr. Steihl, as reflected in

the findings of fact above. The evidence presented at hearing in

Ms. Fearon's testimony, Dr. Steihl's testimony, the licensure

file, and Ms. Fearon's documents, establishes that Ms. Fearon's

documentation of her education still has deficiencies in

pediatric nursing theory (lacks 12 hours of coursework) and

psychiatric nursing (lacks 15 hours of coursework).

24. Ms. Fearon is understandably frustrated at the process

of proving her fitness for licensure in Florida after a long

successful career in nursing in the United States and a rich and

varied educational background. She simply has been unable to

sustain her burden of demonstrating that her education meets the

Board's specific guidelines in two areas only.

25. Ms. Fearon now has the option of continuing to provide

documentation regarding her hours of coursework in pediatric

nursing and psychiatric nursing or seeking endorsement under

Section 464.009(1)(a), Florida Statutes. Board staff is urged to

assist Ms. Fearon in determining which option she should pursue.

There is precedent for the Board's determination that a

registered nurse licensed in New York State has met the

requirements of Section 464.009(1)(a), Florida Statutes. In the

case Jacinth E. Brown v. Board of Nursing , DOAH Case No. 82-0754,

Final Order entered February 22, 1983, the Board determined that

in 1969 the requirements for registered nurse licensure in

New York were equivalent to or more stringent than Florida's

requirements. Ms. Fearon's relevant year is apparently four

years later, 1973, and it is possible that the same requirements

were in effect in both states, with the same felicitious result.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED:

That the Board of Nursing enter its Final Order denying

Petitioner's application for licensure by endorsement without

prejudice to her right to pursue her application as described

above.

DONE AND ENTERED this 22nd day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

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 22nd day of December, 1999.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Sylem May Fearon

7019 Hiawassee Oak Drive

Orlando, Florida 32818

Ruth Stiehl, Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

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.