04-003795PL Department Of Health, Board Of Nursing vs. Patti Jo Rossi, L.P.N. Status: Closed Recommended Order on Wednesday, March 9, 2005.

Summary: Respondent engaged in unprofessional conduct when she isolated a nursing home resident in a room, and the resident was unable to exit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3795PL

)

PATTI JO ROSSI, L.P.N., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

P ursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on January 12, 2005, in

Vero Beach, Florida.

APPEARANCES

For Petitioner: J. Blake Hunter, Esquire

El len Simon, Esquire

Department of Health

Office of General Counsel

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Robert Rappel, D.O., J.D.

Craig M. Rappel, Esquire

Rappel & Rappel, P.A.

1 515 Indian River Boulevard

Suite A210

Vero Beach, Florida 32960

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Patti Jo

Rossi, L.P.N., committed the violations alleged in an

Administrative Complaint issued by Petitioner, the Depa rtment of

Health, and, if so, what disciplinary action should be taken

against her.

PRELIMINARY STATEMENT

In a two - count Administrative Complaint dated January 27,

2003, the Department of Health (hereinafter referred to as the

"Department") charged Patti J o Rossi, L.P.N., with having

violated statutory provisions governing the conduct of nurses in

Florida. Ms. Rossi disputed the factual allegations in the

Administrative Complaint by executing an Election of Rights form

in which she requested a formal admin istrative hearing before

the Division of Administrative Hearings.

Ms. Rossi's request for hearing was filed with the Division

of Administrative Hearings on October 18, 2004, for the

assignment of an administrative law judge to conduct an

evidentiary hearin g. The matter was designated DOAH Case

No. 04 - 3795PL and was assigned to the undersigned.

On October 25, 2004, Petitioner filed Petitioner's Motion

for Consolidation requesting that this case be consolidated with

Department of Health, Board of Nursing v. Logan T. Lanham, R.N ,

DOAH Case No. 04 - 3796PL (hereinafter referred to as the "Lanham

Case"), an action against Logan T. Lanham's license to practice

nursing. Mr. Lanham worked at the same facility as Ms. Rossi

and was alleged to have committed very simil ar violations to

those Ms. Rossi is alleged to have committed. The events,

however, occurred on separate occasions. On November 2, 2004,

an Order Denying Motion for Consolidation was entered.

By Notice of Hearing entered November 8, 2004, the final

heari ng of this case was scheduled to commence January 12 and

13, 2005, in Vero Beach, Florida.

On December 8, 2004, Petitioner filed Petitioner's Motion

for Official Recognition. That Motion was granted by Order

entered December 21, 2004.

On December 22, 2004 , the parties filed a Joint Prehearing

Stipulation. Among other things, the parties included in the

Stipulation a Statement of Those Facts That Are Admitted. Those

facts have been included in this Recommended Order.

At the final hearing the Department pr esented the testimony

of Linda Riley, C.N.A. (by telephone), Carrie Duprey, L.P.N.,

Rhonda Bristol, R.N., Verlecia Toussaint, C.N.A., Scott Eckert,

and Rosemary Nunn - Hill, R.N. (accepted as an expert in nursing

care). The Department also had admitted 9 ex hibits. Ms. Rossi

testified on her own behalf.

By Notice of Filing Transcript issued February 4, 2005, the

parties were informed that the one - volume Transcript of the

final hearing had been filed. The parties were also informed

that they had until Februa ry 23, 2005, to file proposed

recommended orders. Both parties filed post - hearing argument,

which has been fully considered in entering this Recommended

Order.

FINDINGS OF FACT

A. The Parties .

1. The Department is the agency in Florida responsible for

r egulating the practice of nurses pursuant to Chapters 20, 456,

and 464, Florida Statutes (2004). 1

2. Ms. Rossi is and has been at all times material hereto

a licensed practical nurse in the State of Florida, having been

issued license number 1317451.

3. Ms. Rossi, at the times pertinent, was employed in her

capacity as a licensed practical nurse by Palm Gardens of Vero

Beach (hereinafter referred to as "Palm Gardens").

B. Palm Gardens .

4. Palm Gardens was, at the times pertinent, a Florida

licensed resi dential nursing home facility as defined in Section

400.021(13), Florida Statutes.

5. Palm Gardens' facility included a wing, "A - Wing," which

was devoted to the care of residents suffering from various

forms of dementia, including Alzheimer's disease. Wh ile

employed at Palm Gardens, Ms. Rossi was assigned to A - Wing.

6. Due to the tendency of some patients on A - Wing to

"wander," A - Wing doors leading to the outside were equipped with

alarms which sounded whenever a patient attempted to open them.

Whenever an alarm was triggered, employees, including nurses,

had to check to ensure that a resident was not leaving the unit.

7. Part of A - Wing consisted of a room which was used as a

dining room and day room (hereinafter referred to as the "Day

Room"). There w ere four, floor - to - ceiling, windows at one

corner of the Day Room located near an open area of A - Wing,

which included a nurses' station.

8. There was a single, heavy, self - closing door providing

access to the Day Room. This door was normally propped open .

During the pertinent period of time involved in this case, the

door to the Day Room was slightly larger at the one corner than

the door jam, which caused the door to stick if closed.

Although the door could be opened, it took some strength to do

so. T he condition of the door was known to employees of A - Wing,

including Ms. Rossi.

C. Patient M.S.

9. Among the patients on A - Wing was M.S., a female

resident. M.S. was elderly, suffered from dementia and

Alzheimer's disease, and was in relatively poor phy sical and

mental health.

10. M.S., whose date of birth was February 3, 1920, was

totally dependant on the facility and employees of Palm Gardens

for her care.

11. M.S. was ambulatory, but not capable of providing the

daily necessities of life, such as cl eaning herself or dressing.

M.S. was not oriented as to time or place, and lacked the

capacity to consent.

12. M.S. had a habit of wandering the halls of A - Wing and

touching doors equipped with alarms, which would cause the

alarms to sound.

D. The Event s of December 22, 2001 . 2

13. On December 22, 2001, Ms. Rossi was working the "swing

shift" (from 3:00 p.m. to 11:00 p.m.) on A - Wing.

14. During Ms. Rossi's shift, M.S. was wandering the wing,

sometimes setting off door alarms.

15. M.S. was not harming a ny other residents or causing

any harm to herself.

16. Out of frustration over having to respond every time

that M.S. set off an alarm, Ms. Rossi took M.S. and placed her

in the Day Room, closing the door as she left. By closing the

door to the Day Room, Ms. Rossi effectively locked M.S. into the

room.

17. Ms. Rossi left M.S. in the Day Room without any

supervision; no one was in the Day Room with her and no one was

watching her through the windows between the room and the hall.

M.S. for most of the tim e she was in the Day Room, was

unsupervised by any employee of Palm Gardens.

18. M.S. was too weak to open the door. She was,

therefore, involuntarily confined to the Day Room. Three

C.N.A.s observed M.S. in the Day Room, attempting to get the

door open , and annoyed that she was unable to. One of the

C.N.A.s let her out.

19. Ms. Rossi told one of the C.N.A.s that she had placed

M.S. in the Day Room, and said not to let her out again.

Ms. Rossi then was seen placing M.S. back in the Day Room and

closin g the door.

20. Again, M.S. attempted to get the door open to get out

and was upset when she was unable to.

21. M.S. was left in the Day Room for at least ten

minutes, unsupervised and unable to leave, until a C.N.A. opened

the door and released her. Wh ile she was not actually injured,

M.S. could have been because she was unsupervised.

22. The evidence failed to prove that Ms. Rossi placed any

other resident in the Day Room.

E. Unprofessional Conduct .

23. Ms. Rossi's conduct fell below the minimum sta ndards

of acceptable and prevailing nursing practice. By placing M.S.

in the Day Room, unsupervised and unable to leave without

assistance, Ms. Rossi failed to protect her welfare and safety.

24. Ms. Rossi's conduct constituted unprofessional conduct

for a nurse.

F. Involuntary Seclusion .

25. Placing M.S. in the Day Room, unsupervised and unable

to leave without assistance, constituted involuntary seclusion.

26. Based upon the length of time that Ms. Rossi left M.S.

in the Day Room constituted an "exte nded" involuntary seclusion.

G. Ms. Rossi's Explanation .

27. Ms. Rossi testified at hearing that she had not closed

the door to the Day Room, but had only shut it three quarters of

the way. This testimony is not been credited. Ms. Rossi's

version of ev ents is inconsistent with other, more credible

witnesses.

CONCLUSIONS OF LAW

A. Jurisdiction .

28. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2004).

B. The Burden and Standard of Proof .

29. In the Administrative Complaint, the Department is

seeking the imposition of, among other penalties, the revocation

or suspension of Ms. Rossi's license to practice nursing in

Florida. Therefore, the Department has the burden of proving

the allegations in the Administrative Complaint by clear and

convincing evidence. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and McKinney v. Castor , 667 So. 2d 387

(Fla. 1st DCA 1995).

30. Clear and Convincing evidence has been defined as

evidence which:

requires that the evidence must be found t o

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such 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.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

C. The Charges Against Ms. Rossi; Sections

4 56.072(1) and 464.018, Florida Statutes .

31. The grounds proven in support of the Department's

assertion that Ms. Rossi's license should be disciplined must be

those specifically alleged in the Administrative Complaint.

See , e.g. , Cottrill v. Department of Insurance , 685 So. 2d 1371

(Fla. 1st DCA 1996); Kinney v. Department of State , 501 So. 2d

129 (Fla. 5th DCA 1987); and Hunter v. Department of

Professional Regulation , 458 So. 2d 842 (Fla. 2nd DCA 1984).

Due process prohibits the Department from taking disciplinary

action against a licensee based on matters not specifically

alleged in the charging instrument, unless those matters have

been tried by consent. See Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection , 824

So. 2d 208, 210 (Fla. 4th DCA 2002); and Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

32. The specific charges contained in the Administrative

Complaint are based upon alleged violations of Section

456.072(1) , Florida Statutes (Count I), and Section 464.018(1),

Florida Statutes (Count II). Both provisions provide authority

for the Department to take disciplinary action against the

nursing license of any person who commits any of a number of

proscribed acts.

3 3. In Count I, the specific violation alleged is found in

Section 456.072(1)(k), Florida Statutes, which authorizes

disciplinary action for the following act:

(k) Failing to perform any statutory or

legal obligation placed upon a licensee .

[Emphasis a dded].

34. In support of this violation, the Department alleged

in Count I of the Administrative Complaint that Ms. Rossi

violated Section 400.022(1)(o), Florida Statutes, by failing to

"respect the right of residents at Palm Garden to be free from

menta l and physical abuse and extended involuntary seclusion."

35. In Count II, the specific violation alleged is found

in Section 464.018(1)(h), Florida Statutes, which authorizes

disciplinary action for the following act:

Unprofessional conduct, which shal l

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

actual injury need not be established.

36. In Count II of the Administrative Complaint, the

Department alleged that Ms. Rossi violated Section

464.018(1)(h), Florida Statutes, "by isolating patients M.S.

and/or G.K. in a room in which patients M.S. and/or G.K. could

not voluntarily leave without assistance."

D. Count I; Failing to Perform a ny Statutory or Legal

Obligation Placed Upon a Licensee .

37. In support of the allegation that Ms. Rossi violated

Section 456.072(1)(k), Florida Statutes, the Department has

argued that Section 400.022(1)(o), Florida Statutes, imposed an

obligation o n her to refrain from placing M.S. in extended

involuntary seclusion and that she violated this obligation.

38. In support of the Department's argument, the

Department has cited two decisions from this forum in which

Administrative Law Judges found that a n obligation was imposed

on certified nursing assistants by Section 400.022(1)(o),

Florida Statutes. Department of Health, Board of Nursing v.

Brett W. Mauch, C.N.A. , 2002 WL 1592356 (Fla.Div.Admin.Hrgs.

May 24, 2002); and Department of Health, Board of N ursing v.

Charsee Boston , 2002 WL 1592356 (Fla.Div.Admin.Hrgs. May 28,

2002).

39. Section 400.022(1)(o), Florida Statutes, provides the

following:

400.022 Residents' rights. --

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

. . . .

(o) The right to be free from mental and

physical abuse, corporal punishment,

extended involuntary seclusion, and from

physical and chemical restraints, except

those restraints authorized in writing by a

physician for a specified and limited period

of time or as are necessit ated by an

emergency. In case of an emergency,

restraint may be applied only by a qualified

licensed nurse who shall set forth in

writing the circumstances requiring the use

of restraint, and, in the case of use of a

chemical restraint, a physician shall be

consulted immediately thereafter.

Restraints may not be used in lieu of staff

supervision or merely for staff convenience,

for punishment, or for reasons other than

resident protection or safety.

(2) The licensee for each nursing home

shall orally inform the resident of the

resident's rights and provide a copy of the

statement required by subsection (1) to each

resident or the resident's legal

representative at or before the resident's

admission to a facility. The licensee shall

provide a copy of t he resident's rights to

each staff member of the facility. Each

such licensee shall prepare a written plan

and provide appropriate staff training to

implement the provisions of this section.

The written statement of rights must include

a statement that a resident may file a

complaint with the agency or local ombudsman

council. The statement must be in boldfaced

type and shall include the name, address,

and telephone numbers of the local ombudsman

council and central abuse hotline where

complaints may be lodged.

(3) Any violation of the resident's

rights set forth in this section shall

constitute grounds for action by the agency

under the provisions of s. 400.102. In

order to determine whether the licensee is

adequately protecting residents' rights, t he

annual inspection of the facility shall

include private informal conversations with

a sample of residents to discuss residents'

experiences within the facility with respect

to rights specified in this section and

general compliance with standards, and

c onsultation with the ombudsman council in

the local planning and service area of the

Department of Elderly Affairs in which the

nursing home is located.

(4) Any person who submits or reports a

complaint concerning a suspected violation

of the resident' s rights or concerning

services or conditions in a facility or who

testifies in any administrative or judicial

proceeding arising from such complaint shall

have immunity from any criminal or civil

liability therefore, unless that person has

acted in bad fa ith, with malicious purpose,

or if the court finds that there was a

complete absence of a justiciable issue of

either law or fact raised by the losing

party.

40. From the clear language of Section 400.022(1), Florida

Statutes, the specific obligations cr eated by the statute are

imposed on the "licensee" of the nursing home and not its

employees. That is not to say that the rights of residents

specified in Section 400.022(1), Florida Statutes, need not be

respected by nursing home employees; they must. B ut if they

fail to respect their rights, the remedy must come from some

other statutory provision. Section 400.022(1), Florida

Statutes, while it creates rights and imposes an obligation on

the facility for nursing home residents, does not give the

Depart ment the authority to impose discipline on nursing home

employees.

41. Based upon the foregoing, it is concluded that the

Department has failed to prove clearly and convincingly that Ms.

Rossi committed the violation alleged in Count I of the

Administrati ve Complaint.

E. Count II; Unprofessional Conduct .

42. The Department has alleged that Ms. Rossi violated

Section 464.018(1)(h), Florida Statutes, (displaying

unprofessional conduct), by failing to conform to the minimal

standards of acceptable and preva iling nursing practice, when

she placed Patients M.S. and/or G.K. in extended involuntary

seclusion in violation of Section 464.018(1)(h), Florida

Statutes.

43. The evidence in this case clearly and convincingly

proved that Ms. Rossi's conduct in placing M.S. in the Day Room,

unsupervised and unable to leave without assistance, failed to

conform to the minimal standards of acceptable and prevailing

nursing practice and, therefore, constituted "unprofessional

conduct."

44. Based upon the foregoing, it is c oncluded that the

Department proved clearly and convincingly that Ms. Rossi

committed the violation alleged in Count II of the

Administrative Complaint.

F. Appropriate Disciplinary Action .

45. The Department is authorized, upon finding a violation

of Se ction 456.072(2), Florida Statutes, to impose discipline

upon a nurse's license to practice for any violation of Section

456.072(1) or 464.018, Florida Statutes.

46. Florida Administrative Code Rule 64B9 - 8.006 sets forth

guidelines concerning violations o f Section 456.072(1) or

464.018, Florida Statutes. For a first offense of

unprofessional conduct where there is no actual injury, the

guideline provided in the rule is from a minimum of a $250.00

fine to a maximum file of $500.00 and probation.

47. Consi stent with the guidelines, the Department has

recommended that Ms. Rossi be given a reprimand, required to pay

an administrative fine of $250.00, and participate in continuing

education classes, of the number and on such subjects as

specified by the Board of Nursing. This suggestion is accepted

as reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department:

1. Dismissing Count I of the Administrative Complaint ;

2. Finding that Patti Jo Rossi, L.P.N., violated Section

464.018(1)(h), Florida Statutes, as alleged in Count II of the

Administrative Complaint; and

3. Imposing discipline as suggested in this Recommended

Order.

DONE AND ENTERED this 9th day of March , 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Divisi on 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 day 9th of March, 2005.

ENDNOTES

1 / The statutes and rules relevant to this matter are those in

existence in 2001. Therefore, all further references to

statutes or rules in this Recommended Order shall be to the 2001

version unless otherwise indicated.

2 / The Administrative Complaint erro neously indicates that the

relevant events took place on December 13 2004. That is the

date upon which the relevant events in the Lanham Case occurred.

The parties stipulated that the date at issue is actually

December 22, 2001.

COPIES FURNISHED:

Elle n M. Simon, Esquire

J. Blake Hunter, Esquire

Department of Health

Office of General Counsel

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Robert Rappel, D.O., J.D.

Craig M. Rappel, Esquire

1515 Indian River Boulevard

Suite A210

Vero Be ach, Florida 32960

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 32399 - 3252

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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.