00-002755PL Department Of Health, Board Of Nursing vs. Michele Jackson, A/K/A Draper And Jackson-Draper Status: Closed Recommended Order on Thursday, January 25, 2001.

Summary: Evidence of record sufficient to find nurse guilty of misrepresentation in application for licensure and employment, and of unprofessional conduct, and to support revocation of her license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-2755PL

)

MICHELE JACKSON, a/k/a/ DRAPER )

and JACKSON-DRAPER, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida, on

December 19, 2000, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner Diane K. Kiesling, Es quire

Agency for Health Care

Administration

2727 Mahan Drive

Fort Knox Building Three

Room 3231A

Tallahassee, Florida 32308

For Respondent Ometrias Deon Long, Esquire

Long & Perkins, P.A.

390 Nort h Orange Avenue

Suite 2180

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether

Respondent's license as a registered nurse in Florida should

be disciplined because of the matters alleged in the

Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Amended Administrative Complaint dated December 18,

2000, Nancy M. Snurkowski, Chief Attorney for the Agency for

Health Care Administration, on behalf of Robert G. Brooks,

M.D., Secretary of the Department of Health, charged

Respondent with procuring a license to practice nursing by

misrepresentation; with being found guilty of a violation of

Chapter 817, Florida Statutes, relating to fraudulent

practice; and with unprofessional conduct by falsifying an

employment application, in violation of Section 464.018(1)(a),

(d), and (h), Florida Statutes. Thereafter, through counsel,

Respondent denied each of the material allegations of

misconduct contained in the complaint and requested formal

hearing. This hearing ensued.

At the hearing Petitioner presented the testimony of

Deborah J. Sutton, Personnel Director of Hospice of Southwest

Florida (Hospice); Tammy Alice Dawson, Human Resources Manager

and Vice-President of Hospice; Rhonda Campbell, Business

Office Manager and Human Resources Director for Integrated

Health Services (IHS); and Barbel A. Lawson, a Medical

Malpractice Investigator with the Agency for Health Care

Administration (AHCA). Petitioner's Exhibits 1 through 5 are

the depositions of Diana Burnside, a Registered Nurse and

former co-worker of Respondent; Robert Kempiak, Registrar at

Lewis University in Romeoville, Illinois; Suzanne Anderson,

Registrar at Northwestern University in Illinois; Alfreda

Jablonski, formerly registrar at the School of Nursing at

Little Company of Mary Hospital in Illinois; and Judith

Goddard, Vice-President of Human Resources at LifePath in

Tampa. The parties also stipulated to the expected testimony

of Kathy Butler, an employee of Metro Nursing, that Respondent

at no time ever worked for Metro Nursing. Petitioner also

introduced Petitioner's Exhibits 1 through 23 and 25 through

27. Petitioner's Exhibit 24 for Identification was not

received into evidence.

Respondent did not present any evidence at hearing.

The hearing in this matter was noticed for 9:30 a.m. on

December 19, 2000. Due to the failure of Respondent's counsel

to appear timely, the undersigned delayed the commencement of

the hearing until 10:15 a.m. to allow Respondent time to

attempt to locate her counsel. When she was unable to do so,

Respondent agreed to the commencement of the hearing without

her counsel being present. He appeared at the hearing at

11:15 a.m., and was permitted to participate thereafter.

A Transcript of the proceedings was furnished on January

8, 2001. Subsequent to the receipt thereof, counsel for

Petitioner submitted a Proposed Recommended Order which was

considered in the preparation of this Recommended Order.

Respondent submitted an unsigned, unsworn letter to the

undersigned, a copy of which did not appear to have been sent

to Petitioner's counsel. The undersigned read the

communication to determine its nature, but rejected it as

incompetent and an ex-parte communication.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Department of Health, Board of Nursing, was the state agency

in Florida responsible for the licensing of nurses and the

regulation of the nursing profession in this state.

Respondent was a registered nurse licensed in Florida with

license number RN 2561322, which she obtained by endorsement

in 1991.

2. Respondent, using the name Michele Draper, applied

for licensure as a registered nurse by endorsement by

application filed on October 7, 1991. On that application,

she listed 340-22-0150 as her social security number and June

22, 1954, as her date of birth. Attached to the licensure

application was a copy of Respondent's Illinois driver's

license which reflected her date of birth as June 22, 1951.

The application form reflects that at some point, the name

"Draper" was struck through and the name "Jackson" written in,

but Respondent's signature on the application form reflects

Michele Draper Jackson.

3. This same application form reflects that Respondent

answered "No" to the question, "Have you ever been convicted

or have you a no-contest or guilty plea-regardless of

adjudication-for any offense other than a minor traffic

violation."

4. Respondent had been arrested and, on June 8, 1988,

convicted of a felony charge of "Deceptive Practices over

$150" in McLean County, Illinois, and on July 1, 1988, was

convicted of three misdemeanor charges of "Deceptive Practices

under $150" in the same county. On the felony charge she was

sentenced to serve 10 days in the McLean County Jail, to pay a

fine of $300 plus court costs, and to serve 30 months'

probation. On the misdemeanor charges, she was sentenced to

12 months' conditional discharge and to pay court costs. She

was ordered to make restitution in both cases. No reference

was made to this conviction by Respondent on her application

for a Florida nurse's license.

5. In 1993, Respondent was again arrested and indicted,

tried, and convicted in Sarasota County on a third-degree

felony charge of grand theft. She was sentenced to

imprisonment for that offense, but the sentence was suspended

and she was placed on probation for four years. The evidence

reflects that as a part of the offense with which Respondent

was charged was her use of three different social security

numbers, to-wit: 344-33-4188; 360-22-0150; and 310-22-0150;

and a date of birth of June 22, 1951.

6. Respondent has a Florida driver's license number

D616-540-57-722, bearing a Social Security Number 310-22-0150.

She also has a Florida driver's license which bears the Social

Security Number 360-40-8146. Both driver's licenses reflect

Respondent's date of birth as June 22, 1957, yet the records

of the Florida Division of Motor Vehicles reflect Respondent's

date of birth as June 22, 1951. Respondent at one time also

used an Illinois driver's license which bore the Social

Security Number 360-42-4186, and a date of birth of June 24,

1954.

7. In 1995, Respondent was charged in Sarasota County

with a second-degree felony of scheme to defraud by using

false pretenses, representations, or promises with a credit

card to defraud a credit union, several banks, and an

individual, of between $20,000 and $50,000 in July of that

year. The court records relative to that incident indicate

that Respondent stole the identity and social security number

of her employer and used that number to secure a credit card

and loans used to purchase two vehicles on which she failed to

make the appropriate payments.

8. Respondent was found guilty of this charge and of

violation of her previously imposed probation and was, in

March 1996, sentenced to five years in prison, which she

served at the North Florida Reception Center beginning on

March 8, 1996. Both felony convictions and the misdemeanor

conviction were violations of Chapter 817, Florida Statutes,

which deals with fraudulent practices.

9. Before going to prison, between August 21, 1995, and

February 28, 1996, Respondent was employed as a registered

nurse at Hospice. When asked on her application for

employment if she had ever been convicted of a felony,

Respondent answered "No" when, in fact, she had been so

convicted in 1988 and in 1993. On the application for

employment, Respondent listed Social Security Number 306-44-

4186 and a driver's license bearing number D616-540-57-177.

She also indicated on her résumé which she had submitted with

the application that she held a bachelor of science degree

from Northwestern University from which she had allegedly

graduated with a 3.1 grade point average. Respondent did not

hold a degree of any sort from Northwestern, having attended

that institution's school of journalism for only a short

period in 1972-1974.

10. Respondent's résumé also reflected she had received

a nursing diploma from Lewis University through the On Site

Little Company of Mary Hospital in 1980, earning a grade point

average of 3.0. In fact, Respondent did not earn a degree of

any sort from that institution, having attended for only one

year. Her grade point average when she left was 1.77. Her

résumé also reflects she was employed in increasingly

responsible nursing positions at Cook County Hospital in

Illinois from 1980 to 1987. In fact, she did not receive her

nursing license until 1984 and was never employed by Cook

County Hospital.

11. Respondent was sentenced to prison on Marc h 1, 1996.

That day she was scheduled to work at Hospice, but she did not

appear for work as scheduled. Later that day she called in to

advise she had been called away on a family emergency.

Thereafter, she resigned her position with Hospice with no

advance notice, and gave false reasons for leaving.

12. Once Respondent was released from prison, on June 1,

1998, she filed an application for employment with Hospice on

which she again denied ever having been convicted of a felony,

and reiterated her false educational claims. In addition, she

gave a false driver's license number and date of birth.

13. There are several other inconsistencies running

throughout Respondent's employment history. On her Florida

nursing license application she was asked to list the names

she has used during her lifetime and the name under which she

received her nursing education. Respondent did not list the

name Shepard in either response. The records of the Little

Company of Mary Hospital Nursing School reflect that at no

time was there a student at that school with the name Michele

Nash, Michele Jackson or Michele Draper. At one point there

was a student with the name Michele Shepard, but no social

security number is on file for her. The former registrar of

the nursing school testified that she received a telephone

call from someone purporting to be Ms. Michele Shepard who

requested a certification of graduation be issued in the name

of Michele Jackson, which was supposed to be her new name.

The registrar at no time saw any documentation to indicate Ms.

Draper and Ms. Jackson were one and the same person, and she

cannot say with any certainty that Respondent is a graduate of

Little Company of Mary Hospital Nursing School. Nonetheless,

she issued the letter of certification in June 1984, and that

letter was forward to the Florida Board of Nursing in support

of Respondent's application for licensure.

14. Respondent submitted an Illinois nursing license as

support for her application for licensure by endorsement in

Florida. The application for the Illinois license is in the

name of Michele Nash, and bears the Social Security Number

366-42-4116 as well as a birth date of June 22, 1954. The

application also shows a date of graduation from the Little

Company of Mary Nursing School of June 16, 1984.

15. In her application for licensure by endorsement to

Florida, Respondent used the Social Security Number 340-22-

0152, a birth date of June 22, 1954, a high school graduation

date of 1965, a nursing school graduation date of May 1984,

and a date of May 1982 as the date she took the nursing

licensure examination in Illinois. She also used the names

Draper, Jackson, and Nash, and she provided a copy of her

Illinois driver's license showing a birth date of June 22,

1951. Because of the myriad contradictions in her application

history, it is impossible to tell whether Respondent is the

individual who graduated from Little Company of Mary Nursing

School in June 1984.

16. Respondent filed an application for employment with

LifePath Hospice in Tampa on June 25, 1998, using the name

Michele R. Draper, a Social Security Number of 261-40-6814,

and a Florida Driver's license number D616-5154-671772.

Neither that social security number nor a driver's license

bearing that number was issued to Respondent. She also

indicated she had not been convicted of a crime within the

past seven years. That answer was false.

17. Respondent also indicated in her employment

application that she held a bachelor of science degree in

education from Northwestern University with an earned grade

point average of 3.5, and a degree in nursing from Lewis

University/Little Company of Mary Hospital with an earned

grade point average of 3.0. Both representations are false.

18. Ms. Draper also outlined an emplo yment history in

this application which was false in many respects. She did

not work for Nurse, Inc. from May 1993 to January 1996, as

claimed; she did not work for Cook County Hospital from

February 1980 to August 1983, as claimed; and she did not even

hold a nursing license until 1984.

19. When LifePath attempted to verify the information

submitted by Respondent, it determined that the social

security number she had given was incorrect; a second social

security card presented in place thereof was false; and she

provided a Florida driver's license which, though the number

is correct, bears an incorrect and altered date of birth.

Nonetheless, Respondent was hired by LifePath.

20. Sometime after being hired by LifePath, Respondent

presented them with a new social security card bearing the

name Michele Ann Draper, and the number 570-83-2297. She said

that she had married and the Social Security Administration

had given her a new number. This is untrue. Respondent has

been married to Al Draper since before 1978, and the Social

Security Administration ordinarily does not issue a new social

security number to a woman when she marries.

21. When LifePath learned of Respondent's concealed

criminal record, the numerous misrepresentations as to her

education, experiences, and references, and of the numerous

different social security numbers, they terminated her

employment on July 2, 1999. This was approximately one year

after she had been hired and placed in patient's homes by the

company.

22. Commencing in the Fall of 1980, while a student at

Lewis University, until 1998, Respondent used fourteen

different social security numbers and six different birth

dates in her dealings with educational institutions, licensing

officials, and employers. Records of the Social Security

Administration indicate that only two Social Security Numbers,

360-42-4186, used at Lewis University in 1980, and 590-83-

2297, used in the last LifePath application in 1998, were

issued to Respondent. None of the other numbers she used was

ever issued to her under any of the names she used.

23. By the same token, Respondent has used various dates

of birth in her educational career, on driver's licenses, and

on applications for licensure and employment. Birth records

of the state of Illinois indicate that Michele Ann Jackson,

Respondent herein, was born in Illinois on June 22, 1951.

24. Until just recently, Respondent appears to have

continued to show evidence of dishonesty and misrepresentation

in her dealing with authorities. Significant among these are,

for example, in her response to a complaint against her

license filed in Illinois, she falsely asserted she had been

cleared of any wrongdoing in Florida, and that the allegations

of criminal convictions are incorrect. Further, during the

Florida investigation into the instant allegations, Respondent

advised the investigator she had resigned from Hospice in 1996

with proper notice and that she had not had any legal problems

prior to her employment by Hospice in 1995.

25. No evidenc e was presented that Respondent has ever

physically harmed or neglected a patient in her care or stolen

from a patient.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

27. Petitioner seeks to discipline Respondent's license

as a registered nurse in Florida alleging that, having been

convicted of multiple felonies and misdemeanors, she falsified

her application for licensure in Florida by asserting she had

not; she falsified several employment applications; and she

was guilty of unprofessional conduct, in violation of

Section 464.018(1)(a), (d), and (h), Florida Statutes, and of

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

has the burden of proving Respondent's guilt of the matters

alleged by clear and convincing evidence. Department of

Banking and Finance vs. Osborne-Stern , 670 So. 2d 935 (Fla.

1996).

28. Section 464.018(1), Florida Statutes, makes it a

violation of the Nurse Practices Act to:

(a) procure a license to practice nursing

by knowing misrepresentations . . .;

(d) be found guilty, regardless of

adjudication, of a violation of Chapter 817

relating to fraudulent practices;

(h) 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.

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

defines unprofessional conduct to include:

(1) Inaccurate recording, falsifying or

altering of patient records or nursing

progress records, employment applications

or time records.

30. The evidence of record in this matter is both clear

and convincing that Respondent procured her license to

practice nursing in this state by making knowingly false

representations regarding her past criminal record, her social

security number, her driver's license number, and her date of

birth, in violation of Section 464.018(1)(a), Florida

Statutes.

31. The evidence of record is equally both clear and

convincing that Respondent's convictions are violations of

subsections of Chapter 817, Florida Statutes, and as such,

constitute violations of Section 464.018(1)(d), Florida

Statutes.

32. The evidence of record also clearly and convincingly

shows that Respondent claimed unearned education credentials

and employment experience in her applications for employment

submitted both to Hospice of Southwest Florida and to LifePath

Hospice. These were misrepresentations on employment

applications and constitute unprofessional conduct as defined

in Rule 64B9-8.005(1), Florida Administrative Code, and, as

well, are in violation of Section 464.018(1)(h), Florida

Statutes.

33. Petitioner seeks to revoke Respondent's license as a

registered nurse in Florida and to impose an administrative

fine of $5,000 in addition to the administrative costs of the

investigation into her alleged misconduct. Rule 64B9-8.006,

Florida Administrative Code, details the disciplinary

guidelines of the Board of Nursing together with the range of

penalties and those factors which may be considered

aggravating or mitigating circumstances.

34. Rule 64B9-8.006(3)(b), Florida Administrative Code,

provides a penalty of a fine of from $500 to $1,000 and

revocation of the license for making misleading statements or

knowing misrepresentations to obtain a license, as prohibited

in Section 464.018(1)(a), Florida Statutes. Rule 64B9-

8.006(3)(n), Florida Administrative Code, provides for a fine

of from $200 to suspension of a license for having a single

criminal conviction, but this penalty can be aggravated to

revocation if there are multiple convictions. Proven

unprofessional conduct carries a fine of from $250 to $1,000

per violation plus probation or suspension of the license. It

should be noted that each of the above-listed penalties is for

a single violation.

35. In this case, Petitioner has proven that Respondent

obtained her license through misrepresentation and has renewed

it by continuing misrepresentations. She has attempted to

conceal her criminal record from not only those charged with

the regulation of her profession, but also from prospective

employers. What is more significant in the determination of

whether she should be allowed to continue working with

patients is the fact that she has been convicted several times

for misconduct involving theft or deceptive practices.

Clearly, one who commits repeated misconduct of that nature

must not be working with patients. To be sure, there has been

no evidence that Respondent poses a physical threat to those

patients or that she has stolen from anyone in her care.

However, she poses a definite potential threat to their

financial welfare and must not be afforded any opportunity to

take advantage of those patients.

AS TO PETITIONER'S REQUEST FOR

ATTORNEY'S FEES AND COSTS

36. Petitioner also seeks an award of attorney's fees

and costs incurred as a result of Respondent's failure to

timely respond to its request for admissions. Rule 1.380(c),

Florida Rules Civil Procedure, authorizes this tribunal to

require the opposing party to pay the requesting party the

reasonable expenses incurred in making the proof of the

matters sought to be admitted. Here, Petitioner seeks

attorney's fees in the amount of $7,590 and costs of

$3,336.44.

37. The evidence shows that Petitioner served its

Request for Admissions on Respondent's counsel who, pursuant

to the rule, was obligated to respond by December 5, 2000. No

response was forthcoming until 24 hours prior to hearing when

some responses, not given under oath, were telefaxed by

Respondent's counsel to Petitioner. At the hearing, counsel

for Respondent sought to stipulate to all the matters relating

to the charges. These matters, if admitted, should have been

admitted on or before December 5, 2000.

38. Because of Respondent's failure to respond,

Petitioner was forced to depose witnesses residing in Illinois

and Florida and to secure certified copies of relevant public

records. Petitioner retained independent counsel to represent

its interests and present its evidence, though it is clear

that Petitioner has a staff of counsel qualified to do so.

39. Petitioner advised Respondent's counsel of its

intent to request attorney's fees and costs on December 6,

2000, by a motion to deem matters admitted. No response was

received from Respondent or her counsel, and at hearing,

Respondent failed to dispute the amounts claimed as fees and

costs in Petitioner's affidavit. Subsequent to the hearing,

Respondent submitted an unsigned, unsworn letter to the

undersigned a copy of which does not appear to have been sent

to opposing counsel. In her letter, Respondent admits her

convictions and that she concealed them from both the

regulatory agency and prospective employers. However, she

denies not having the proper education for licensure, and

cites this as the basis for her challenge to the complaint.

Under the circumstances, the letter is rejected as being

irrelevant and an unsworn, untimely, ex parte communication.

40. It is, therefore, found that Respondent's license to

practice nursing in Florida should be revoked. Imposition of

an administrative fine would serve no legitimate

rehabilitative purpose. It is noted that by the terms of her

affidavit, counsel for Petitioner indicates that almost

exclusively, her contacts with Respondent regarding the

Request for Admissions and discovery were with Respondent's

counsel. From the fact that Respondent's counsel was over an

hour late for the hearing, participated to a minimum degree,

and appears to have done little to represent Respondent in

this matter, it would appear to be unfair to assess costs

against Respondent based on her representative's lack of

responses. Therefore, Petitioner's request for attorney's

fees and costs, while appropriate in amount, should not be

assessed against this Respondent, and is denied.

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 Respondent guilty of the matters alleged

in the Administrative Complaint and revoking her license to

practice nursing in Florida.

DONE AND ENTERED this 25th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

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 25th day of January, 2001.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

Agency for health Care

Administration

2727 Mahan Drive

Fort Knox Building Three

Room 3231A

Tallahassee, Florida 32308

Michele Jackson Draper

4645 Flatbush Avenue

Sarasota, Florida 34233

Ometrias Deon Long, Esquire

Long & Perkins, P.A.

390 North Orange Avenue

Suite 2180

Orlando, Florida 32801

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

Executive director

Board of Nursing

Department of Health

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

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.