03-003309PL Department Of Health, Board Of Nursing vs. Andrea Tyson, C.N.A. Status: Closed Recommended Order on Monday, December 22, 2003.

Summary: Respondent mistreated a nursing home resident.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. )

) Case No. 03 - 3309PL

ANDREA TYSON, C.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on November 5, 2003, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes (2003). The hearing location was the Dixie County

Courthouse , Courtroom B, 150 Northeast Cedar Street, Cross City,

Florida. The hearing was conducted by Charles C. Adams,

Administrative Law Judge.

APPEARANCES

For Petitioner: Elmer C. Ignacio, Esquire

Ephraim D. Livingston, Esquire

Department of H ealth

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: No appearance

STATEMENT OF THE ISSUE

Should discipline be imposed by Petitioner against

Respondent's certificate to practice as a Certified Nursing

Assistant?

PRELIMINARY STATEMENT

On July 31, 2003, the Department of Health through its

Secretary filed an Administrative Complaint in Case No. 2002 -

0344 naming Respondent as a Certified Nursing Assistant.

Respondent reque sted a formal hearing pursuant to Sections

120.569 and 120.57(1), Florida Statutes, by execution of a form

on August 18, 2003.

On September 15, 2003, the Division of Administrative

Hearings in the person of its Interim Director, S. Scott

Stephens, receive d the case for assignment of an administrative

law judge to conduct a hearing to resolve disputes of material

fact existing between the parties.

The hearing was noticed in writing to be conducted on

November 5, 2003, at the time and place previously des cribed.

Copies of the Notice of Hearing were furnished to the parties.

Respondent was provided a copy of the notice at the address set

forth in the Election of Rights Form she had executed. That

Notice of Hearing was sent by ordinary mail and was not re turned

as undeliverable. Petitioner served pleadings upon the

Respondent at that address.

When the hearing commenced, Respondent was not in

attendance nor was anyone present in her behalf. At no time

during the pendency of the hearing did Respondent atte nd or was

she represented by another person.

At approximately 1:20 p.m. on November 5, 2003, Respondent

telephoned the office of the undersigned, the Division of

Administrative Hearings, the DeSoto Building, 1230 Apalachee

Parkway, Tallahassee, Florida. R espondent spoke to the

Administrative Assistant to the undersigned, Frankie Vignochi.

It is reported by Ms. Vignochi that Respondent explained her

absence from the hearing by saying she "Just realized that she

had missed her hearing." She "thought it was the next day." It

is reported by Ms. Vignochi that Respondent asked what would

happen given her lack of attendance. Ms. Vignochi reported that

she explained to the Respondent that the hearing probably went

forward without Respondent's participation. Fi nally,

Ms. Vignochi stated that she told the Respondent that if the

Respondent intended to file something to further explain her

position it had best be done on that date, November 5, 2003.

The nature of the conversation between Ms. Vignochi and the

Respo ndent that took place was made known to counsel for

Petitioner. To this date Respondent has made no further attempt

to participate in the proceeding.

Petitioner through counsel moved for official recognition

of Section 464.204, Florida Statutes ( 2002). That motion was

granted. Although the Administrative Complaint refers to

Section 464.204, Florida Statutes (2001), the earlier

recognition of Section 464.204, Florida Statutes (2002), does

not influence the outcome in this case.

Petitioner ha d moved to deem its requests for admissions

directed to Respondent be admitted for purposes of this

proceeding. Rule 1.370, Fla. R. Civ. P. The motion to deem

facts admitted for purposes of this proceeding was granted at

hearing.

At hearing Respondent presented Margo Chancey, R.N.C. as

its witness. Petitioner's Exhibits 1A and 1B were admitted,

respectively the video deposition and transcript of the video

deposition of resident W.H. Petitioner's Exhibits 2 and 3 were

admitted as evidence.

On Novem ber 25, 2003, the hearing transcript was filed. On

December 5, 2003, Petitioner filed a proposed recommended order

which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

Facts Admitted:

1. Petitioner is the state department ch arged with

regulating the practice of nursing pursuant to Chapter 20.43,

Florida Statutes, Chapter 456, Florida Statutes; and Chapter

464, Florida Statutes.

2. Respondent is Andrea Tyson.

3. Respondent is a Certified Nursing Assistant (C.N.A.) in

the State of Florida having been issued certificate number 0898 -

262792261.

4. Respondent's current address of record (address listed

for C.N.A. certificate with Department of Health) is P.O. Box

999, Cross City, Florida 32628.

5. On or about August 23, 20 01, Respondent was employed at

Tri - County Nursing Home (Tri - County) in Trenton, Florida.

6. During the time Respondent worked at Tri - County, W.H.

(resident referred to in Petitioner's Administrative Complaint)

was a resident at Tri - County.

7. Responden t knew W.H. prior to working at Tri - County.

8. Respondent regularly cared for W.H. at Tri - County.

9. On or about August 23, 2001, Respondent assisted W.H.

in taking a shower.

10. On or about August 23, 2001, while in the shower with

W.H., Respondent jerked W.H.'s hand from the shower grab bar.

11. On or about August 23, 2001, while in the shower with

W.H., Respondent sprayed W.H.'s face with cold water.

12. On or about August 23, 2001, after Respondent finished

showering W.H., Respondent partially dried W.H. and put on only

his pants.

13. On or about August 23, 2001, after Respondent finished

showering W.H., Respondent refused to assist W.H. with putting

on his shirt.

14. On or about August 23, 2001, W.H. had to seek the

assistance of another p erson at Tri - County, in putting on his

shirt following his shower with Respondent.

Additional Facts :

15. W.H. had suffered a stroke in 1992.

16. W.H. came to be a resident at Tri - County on March 8,

1999.

17. On August 23, 2001, Respondent told W.H. to go to the

bathroom to get ready for his shower. W.H. required assistance

to shower. Respondent had given showers to W.H. before the date

in question.

18. On August 23, 2001, it was necessary for W.H. to

support himself by holding on to the show er grab bar. W.H.

explained that he uses the shower bar because he feels better

that way, more secure. When Respondent jerked W.H.'s hand away

from the shower grab bar, she did so without warning. This made

W.H. feel bad. It also made him feel mad at R espondent.

19. On the date in question while in the shower, W.H. told

the Respondent that the water was too hot. Her response was to

reach over with her hand and turned the lever to the cold

setting and rinsed W.H. off with cold water. The water was

re ally cold. W.H. did not complain about the cold water. He

just wanted to get out of the shower. W.H. was left with the

impression that if Respondent was going to be mean to him, he

did not want to be around her. The incident made him feel

abused. W.H. felt intimidated by the Respondent given her

actions.

20. As part of the process of showering that took place on

August 23, 2001, in addition to spraying cold water in W.H.'s

face, the cold water got into his ears. He did not like water

in his ears.

21. After the shower, Respondent dried W.H. off and put on

his underclothes and pants and shoes but not his shirt. W.H.

was left with only his T - shirt above the waist. W.H. took his

outer shirt and went into the hall and got another C.N.A. to

assist hi m in putting it on.

22. To W.H.'s knowledge he had never done anything or said

anything to provoke Respondent before the incident in the

shower.

23. W.H. reported the incident to a nurse at Tri - County

about a day after the event.

24. The expectation a t Tri - County was that Respondent as a

C.N.A. would perform her duties in the facility consistent with

the Florida standards of care incumbent upon C.N.A. certificate

holders.

i - County is a skilled nursing facility. C.N.A.s who

are employed at that facility, such as Respondent, undergo

orientation in addition to the training received when earning a

certificate to practice in Florida. The orientation includes

issues such as fire safety, resident rights, 1/ infection control,

and body lifting of resid ents. What is described as the "paper

part" of the orientation takes a day. In addition, the new

employee is paired with an experienced C.N.A. on the same shift

where the new employee will work, and the new employee and the

experienced employee work toge ther for a couple of weeks at the

nursing home as training. While working with the experienced

C.N.A., that employee uses a check - list to verify that the new

employee can master the skills required to assist the residents.

26. Within Tri - County the expec tation for resident rights

are in association with the right to dignity, among other

rights.

27. C.N. A. s at Tri - County are responsible for feeding,

hydration, bathing, toileting, and skin care in relation to

residents they are responsible for.

28. Mar go Chancey, R.N.C. was the Director of Nurses at

Tri - County on August 23, 2001. She continues to hold that

position.

29. Ms. Chancey is a licensed nurse in Florida. By virtue

of her formal training and work experience, Ms. Chancey is

sufficiently famili ar with the expected standard of care to be

provided by C.N.A.s to offer expert opinion testimony concerning

Respondent's treatment of W.H. on August 23, 2001.

30. Nurse Chancey explained W.H.'s condition in August

2001 as being a circumstance in which W .H. had had a couple of

strokes over a period of years. Nonetheless, W.H. remained

alert and oriented and continued to be alert and oriented in

more recent times including the present. W.H. gets around in a

wheelchair. He is on an oxygen concentrator P. R.N. W.H.

suffers with chronic pulmonary disease. W.H. was more

ambulatory in August 2001 than he is today.

31. Ms. Chancey is sufficiently familiar with the events

on August 23, 2001, concerning Respondent's provision of care to

W.H. while providi ng him a shower, to offer an opinion on

whether that performance was within the minimal standards

expected of a C.N.A. Ms. Chancey established that the manner of

care provided from Respondent to W.H. was inhumane and abusive

and below minimal standards. More particularly, Ms. Chancey

commented that Respondent gave W.H. no choices. She demanded

things of the resident. She sprayed cold water in his face,

which is unacceptable. She was rough and rude with W.H. when

removing his arm from the grab bar, whic h is unacceptable.

W.H.'s patient's rights were violated pertaining to matters of

human dignity and he was not treated safely. As Ms. Chancey

correctly explained, for Respondent to perform her duties in

giving the bath to W.H. she would have had bathing equipment

ready when he came into the room and she should have been in the

room when W.H. started to get undressed and would not have

removed his arm from the grab bar. W.H. had the right to

complain that the water was too hot. Respondent should have

tes ted the water before she sprayed what was revealed to be cold

water on W.H. Respondent should have totally dressed W.H.

before she left the room given his condition, chronic

obstructive pulmonary disease. The risk was that his condition

could worsen when left partially dressed. This might lead to

his contracting pneumonia.

CONCLUSIONS OF LAW

32. In accordance with Sections 120.569, 120.57(1),

456.001(4), and 456.073(5), Florida Statutes (2003), the

Division of Administrative Hearings has jurisdictio n over the

parties and the subject matter in this case for purposes of the

final hearing and entry of the recommended order.

33. By this action Petitioner seeks to discipline

Respondent's C.N.A. certificate. For that reason the burden of

proof resides with the Petitioner to demonstrate that the

allegations made are established by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stearn and

Company , 670 So. 2d 932 (Fla. 1996); Fe rris v. Turlington , 510

So. 2d 292 (Fla. 1987). Clear and convincing evidence has been

defined in Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

1983).

34. The Administrative Complaint refers to Section

464.204(1)(b), Florida Statutes (2001), perta ining to

disciplinary action against a C.N.A. who practices in Florida

wherein it states:

(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.

35. The range of penalties contemplated in Section

464.204(2), Florida Statutes (2001), are as follows:

(2) When the board finds any person g uilty

of any of the grounds set forth in

subsection (1), it may enter an order

imposing one or more of the following

penalties:

(a) Denial, suspension, or revocation of

certification.

(b) Imposition of an administrative fine

not to exceed $150 for e ach count or

separate offense.

(c) Imposition of probation or restriction

of certification, including conditions such

as corrective actions as retraining or

compliance with an approved treatment

program for impaired practitioners.

36. The Admin istrative Complaint when describing the

provisions within Chapter 464, Florida Statutes (2001), which

have been allegedly violated, and the rules adopted by the

Nursing Board allegedly violated, refers first to Section

464.018(1)(h), Florida Statutes (2001 ), which allows the

imposition of discipline for:

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, in which case act ual

injury need not be established.

37. The related provision within Florida Administrative

Code Rule 64B9 - 8.005(13)(2001), would allow discipline to be

imposed for:

Failure to conform to the minimal standards

of acceptable prevailing nursing practic e

regardless of whether or not actual injury

to a patient was sustained.

38. Clear and convincing evidence was presented to show

that Respondent, when rendering care to W.H. at Tri - County on

August 23, 2001, did remove his hand from the shower grab bar by

jerking it away. Upon his complaint about the water being too

warm, she turned the cold water on and sprayed him with the cold

water. Respondent was mean and inappropriate with W.H.

Respondent did not properly dress W.H. following the shower. By

her acts she did not conform to the minimal standards of

acceptable practice for a C.N.A., notwithstanding lack of any

demonstrated injury to W.H. Respondent violated Section

464.204(1)(b), Florida Statutes (2001), by violating Section

464.018(1)(h), Flo rida Statutes (2001), and Florida

Administrative Code Rule 64B9 - 8.005(13)(2001). For these

violations Respondent is subject to punishment in accordance

with Section 464.204(2), Florida Statutes (2001).

39. Petitioner's counsel has proposed punishment a s

follows:

(a) Placement of Respondent's certificate

on probation for a period of one year

subject to terms established by the Board of

Nursing;

(b) Imposition of $150.00 administrative

fine;

(c) Requiring Respon dent to take a

continuing education class in the care of

the elderly; and

(d) The reprimand of Respondent's C.N.A.

certificate.

All recommendations, save the recommendation of a reprimand, are

recognized in Section 464.204(2), Florida Statutes (2001).

RECOMMENDATION

Upon consideration of the facts found and Conclusions of

Law reached, it is

RECOMMENDED:

That a Final Order be entered finding the Respondent in

violation of Sections 464.204(1)(b), 464.018(1)(h), Florida

Statutes (2001), and Florid a Administrative Code Rule 64B9 -

8.005(13)(2001), placing Respondent on probation for a period on

one year subject to terms established by the Board of Nursing,

imposing a $150.00 fine and requiring that Respondent attend a

continuing education class on the care of the elderly.

DONE AND ENTERED this 22nd day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

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 December, 2003.

ENDNOTE

1/ The reference to resident rights within the nursing home

refers to Section 400.022, Florida Statutes.

COPIES FURNISHED :

Elmer C. Ignacio, Esquire

Ephraim D. Livingston, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahasse e, Florida 32399 - 3265

Andrea Tyson

Post Office Box 999

Cross City, Florida 32628

Ruth Stiehl, Executive Director

Board of Certified Nursing Assistants

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e 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.