04-002248PL Department Of Health, Board Of Nursing vs. Louvedor Bonhomme, C.N.A. Status: Closed Recommended Order on Monday, December 6, 2004.

Summary: Respondent bounced a water-filled glove and threw a nightgown on a resident`s head.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2248PL

)

LOUVEDOR BONHOMME, C.N.A., )

)

Respondent. )

)

RECOMMENDE D ORDER

Pursuant to notice, a final hearing was held in this case

on October 13, 2004, in Naples, Florida, before Susan B.

Harrell, 1 a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Judith A. L aw, Esquire

Ellen M. Simon, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Victor M. Arias, Esquire

A rias Law Firm, P.A.

3013 Del Prado Boulevard, Suite 2

Cape Coral, Florida 33904

STATEMENT OF THE ISSUES

Whether Responded violated Subsections 464.018(1)(n) and

464.204(1)(b), Florida Statutes (2002), and, if s o, what

discipline should be imposed.

PRELIMINARY STATEMENT

On April 13, 2004, Petitioner, Department of Health,

Board of Nursing (Department), filed an Administrative

Complaint against Respondent, Louvedor Bonhomme, C.N.A.

(Bonhomme), alleging that she was guilty of violating

Subsections 464.018(1)(n) and 464.204(1)(b), Florida Statutes

(2002). Bonhomme requested an administrative hearing, and the

case was forwarded to the Division of Administrative Hearings to

assign an administrative law judg e to conduct the final hearing.

The final hearing was scheduled for August 4, 2004.

Respondent requested a continuance, which was granted, and the

final hearing was rescheduled for October 13, 2004.

At the final hearing, the Department presented the

fol lowing witnesses: Nicole Joseph, Finemy Cange, and Suzanne

Salyer. Petitioner's Exhibits 1 through 9 were admitted in

evidence.

Respondent testified in her own behalf and presented

Respondent's Exhibits 1 through 4, which were admitted in

evidence.

On No vember 1, 2004, the Transcript of the final hearing

was filed. Petitioner and Respondent filed their proposed

recommended orders on November 12, 2004, and November 15, 2004,

respectively. The parties' recommended orders have been

considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

responsibility of regulating the practice of certified nursing

assistants pursuant to Section 20.43 and Chapters 456 and 464,

Florida Statutes (2004).

2. Bonh omme is a certified nursing assistant (C.N.A.)

licensed by the Department under Certificate No. CX

1100000012785.

3. The incident at issue in this proceeding took place on

April 21, 2003, when Bonhomme was employed as a C.N.A. at

Imperial Health Care Cent er (Imperial), where E.O. was a

resident. Nicole Joseph (Joseph), a C.N.A., was assigned to

care for E.O.

4. E.O. spends a good deal of her time sitting in a

wheelchair at the nurses' station in "A" Hall. E.O. speaks very

little English, and communica tes mostly in German. When she

needs to go to the restroom, she will usually yell, "Hello," and

the C.N.A. will come and get her, take her to the restroom, and

assist her in using the facilities.

5. On April 21, 2003, E.O. indicated that she needed to

us e the restroom, and a nurse paged Joseph to come and get E.O.

Joseph was busy assisting another resident when the page was

made, and Bonhomme took up the task of taking E.O. to the

restroom. Bonhomme began to wheel E.O. down the hall towards

E.O.'s room. Joseph came out of the other resident's room and

followed Bonhomme and E.O. into E.O.'s room.

6. While Bonhomme was taking E.O. to her room, Bonhomme

would shake E.O.'s wheelchair from side to side, upsetting E.O.

and causing her to scream in German. W hen they were inside

E.O.'s room, Joseph began to remove the foot plates from the

wheelchair so that E.O. could access the toilet from the

wheelchair. E.O., still upset, began to kick Joseph.

7. E.O. carries a small red pocketbook containing pens,

pencil s, and paper. She uses the writing materials to assist in

communicating with others who do not speak German. E.O. becomes

very upset when anyone touches her pocketbook.

8. Joseph wheeled E.O. into the bathroom and placed E.O.'s

pocketbook on top of the toilet. Bonhomme took the pocketbook

and threw it on the floor. Her actions upset E.O., who began to

scream. Joseph took the pocketbook and replaced it on the

toilet tank top. Again Bonhomme took the pocketbook and threw

it on the floor. Joseph picked up the pocketbook and placed it

on E.O.'s bed within E.O.'s sight. After Joseph placed the

pocketbook on the bed, E.O. began to calm down.

9. Joseph got E.O. situated on the toilet and returned to

another resident's room to assist that resident, leaving

Bonhomme in the bathroom with E.O.

10. Finemy Cange (Cange), a C.N.A. employed by Imperial,

was caring for a resident in the room across the hall from

E.O.'s room. Cange saw Bonhomme take E.O. into her room and

later heard E.O. screaming in her bathroom . Cange went to the

storage room to get a nightgown for a resident. On returning

from the storage room, she continued to hear E.O. yelling.

Cange, carrying the nightgown, and another C.N.A., Catherine

George, went into E.O.'s room. Cange found Bonhomme standing in

front of E.O. in the bathroom, making faces at E.O. This was

upsetting to E.O.

11. Bonhomme took a rubber glove that was in the bathroom,

filled it with water, and bounced it on E.O.'s head. E.O.,

still seated on the toilet, became more ups et and continued to

yell. Cange told Bonhomme that placing the glove on E.O.'s head

was not funny. Bonhomme quit bouncing the glove on E.O.'s head

and placed the glove in the sink.

12. Joseph, who was assisting another resident, heard

E.O.'s continued s creaming. She left the other resident and

returned to E.O.'s room. She saw Bonhomme with the water - filled

glove, but did not know that Bonhomme had bounced it on E.O.'s

head.

13. Next Bonhomme took the nightgown from Cange, threw it

on E.O.'s head and turned out the lights. Cange turned the

lights back on. At this juncture, Joseph told Bonhomme to

leave.

14. Joseph got E.O. off the toilet, dressed her and

returned her to the nurses' station, where she left her. E.O.

was visibly upset. She was po inting to her head, crying, and

talking in German. The nurse at the nurses' station contacted

Suzanne Salyer (Salyer), the director of nursing at Imperial.

15. Salyer questioned Bonhomme and Joseph, but they denied

anything happened. Both C.N.A.'s wer e suspended pending an

investigation. The following morning Joseph went to Salyer and

told her what happened.

16. Salyer is a registered nurse and is qualified as an

expert in nursing and the duties and responsibilities of

C.N.A.'s. It is her expert o pinion that C.N.A.'s should take

care of the residents as if they were family and that placing a

nightgown on a resident's head, placing a water - filled glove on

a resident's head, and turning off the light after placing the

nightgown on the resident's head are actions which fall below

the minimal standards of acceptable and prevailing nursing

practices.

17. Bonhomme was aware that the actions were prohibited.

When she began working at Imperial, she signed a Resident's

Rights Agreement that provided that a resident has the right

"[t]o be free from verbal, physical or mental abuse, corporal

punishment and involuntary seclusion."

18. Bonhomme has not had her certificate disciplined prior

to this proceeding.

CONCLUSIONS OF LAW

19. The Division of Administrat ive Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).

20. Petitioner has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

evid ence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996).

21. Petitioner alleged in the Administrative Complaint

that Respondent violated Subsection 464.204(1)(b), Florid a

Statutes (2002), which provides that a certified nursing

assistant may be disciplined for intentionally violating any

provisions of Chapter 464, Florida Statutes (2002). Petitioner

further alleged that Respondent violated Subsection

464.018(1)(n), Flori da Statutes (2002), which provides that the

following constitutes grounds for discipline:

Failing to meet minimal standards of

acceptable and prevailing nursing practice,

including engaging in acts for which the

licensee is not qualified by training or

experience.

22. In the Administrative Complaint, the Department

alleged that Bonhomme failed to meet minimal standards of

acceptable and prevailing nursing practice when she was

"mentally and physically abusive to Resident E.O., when she

poked E.O., boun ced a water - filled glove off of E.O.'s head and

when she placed a nightgown over E.O.'s head and then turned off

the lights."

23. The Department has established that Bonhomme

intentionally violated Subsection 464.018(1)(n), Florida

Statutes (2002), by bou ncing a water - filled glove on E.O.'s and

by placing a nightgown over E.O.'s head and then turning off the

lights. The circumstances in which these actions occurred

demonstrate that the actions were intentional. It was not

accidental that Bonhomme took a rubber glove, filled it with

water, and bounced it on a resident's head. Nor was it

accidental that Bonhomme took a nightgown from the hands of

another C.N.A., threw the nightgown on top of a resident, who

was seated on a toilet, and then turned out the l ight. The

actions were done deliberately to upset E.O.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Louvedor Bonhomme violated Subsection 464.204(1)(b), Flori da

Statutes (2002), by violating Subsection 464.018(1)(n), Florida

Statutes (2002); imposing an administrative fine of $100;

requiring Louvedor to attend continuing education classes as

specified by the Board of Nursing; and placing Respondent on

probation for two years under conditions as specified by the

Board of Nursing.

DONE AND ENTERED this 6th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Adminis trative 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 6th day of De cember, 2004.

ENDNOTE

1/ At the time of the final hearing, Administrative Law Judge

Susan B. Harrell was named Susan B. Kirkland.

COPIES FURNISHED :

Monica Ryan, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 3239 9 - 3265

Victor M. Arias, Esquire

Arias Law Firm, P.A.

3013 Del Prado Boulevard, Suite 2

Cape Coral, Florida 33904

Judith A. Law, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Ellen M. Simon, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald C ypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dan Coble, R.N., Ph.D., C.N.A.A. - C,

B.C., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 3239 - 3252

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.