05-001504 The Institute Of Allied Health vs. Department Of Health, Board Of Nursing Status: Closed Recommended Order on Monday, November 21, 2005.

Summary: Respondent my rescind its approval of Petitioner`s nurse-education program for its low pass rate, failure to give written notice of relocation of the program`s facility, and failure to file timely a Progress Evaluation Report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE INSTITUTE OF ALLIED )

HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1504

)

DEPARTMENT OF HEALTH , BOARD )

OF NURSING, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Lauderdale, Florida, on August 25, 2005.

APPEARANCES

For Petitioner: Mark J. Berkowitz

M ark J. Berkowitz, P. A.

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

For Respondent: Lee Ann Gustafson

Assistant Attorney General

The Capitol , Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Respondent may rescind its approval of

Petitioner's program to operate a practical - nurse education

program.

PRELIMINARY STATEMENT

By Or der dated February 16, 2005, and effective June 30,

2005, Respondent revoked Petitioner's approval to operate a

practical nursing program. Petitioner's approval had expired on

June 30, 2004. The Order states that Petitioner had not

adequately explained i ts failure to notify Respondent of the

relocation of the program to a new location, had failed to

provide sufficient information in its Program Evaluation Report

to document compliance with Respondent's rules, had failed to

identify corrective actions to i mprove the pass rate of its

students taking the national licensure examination, and had

failed to demonstrate compliance with suggestions to improve

student performance and program quality.

Petitioner timely requested a formal hearing.

At the hearing, Pe titioner called two witnesses and offered

into evidence eight exhibits: Petitioner Exhibits 1, 2, 2A, 3,

3A, 4, 5, and 6. Respondent called one witness and offered into

evidence 16 exhibits: Respondent Exhibits 1 - 16. All exhibits

were admitted.

The co urt reporter filed the transcript on September 26,

2005. The parties filed their Proposed Recommended Orders on

October 10, 2005.

FINDINGS OF FACT

1. For the past 13 years, Petitioner has operated an

unaccredited education program for persons seeking lice nsure as

practical nurses. During this period, Beverly Pryce has been

the Program Director. Ms. Pryce is a registered nurse in

Florida and has 27 years of clinical experience comprising 10

years as a licensed practical nurse and 17 years as a registered

nurse.

2. For the 2002 - 03 and 2003 - 04 school years, Petitioner

has admitted 24 students annually from a pool of 35 - 40

applicants. Nineteen students graduated from the 2002 - 03 class,

and 22 students graduated from the following year's class. In

both year s, Petitioner retained four faculty members -- two full

time and two part time. In both years, Petitioner had one

faculty position vacant.

3. In February 2003, Petitioner relocated its operations

from a building in Hallandale to a building in Hollywood.

Pet itioner made this move without prior notification to, or

consent from, Respondent.

4. Ms. Pryce testified that, subsequent to the move,

Petitioner communicated to Respondent, using Petitioner's new

address, about several items, such as the names of upcoming

graduates. These contacts do not represent a formal

notification of a change of address, and Ms. Pryce conceded that

she had not known of any requirement of notice prior to making

such a move.

5. Petitioner's formal notification of the change of

address took place over one year after it had relocated its

operations. The omission of prior notice denied Respondent the

opportunity to inspect the proposed new facility, including

classrooms, laboratories, computers, and library resources, to

ensure that it m et all applicable requirements for a school

educating persons seeking licensure as licensed practice nurses.

By letter dated May 10, 2004, Respondent advised Petitioner that

the failure to notify Respondent of the change of address

violated "64B - 9."

6. The notification issue arose when Respondent mailed a

letter to Petitioner warning that its license would expire on

June 30, 2004, and requesting a Program Evaluation Report by

September 2, 2004. The postal service returned the letter as

undeliverable becaus e it was addressed to Petitioner's former

address. After obtaining the new address, Respondent re - mailed

the letter, on June 16, 2004, again requesting a Program

Evaluation Report by September 2.

7. Petitioner failed to provide Respondent with a Program

Ev aluation Report by the deadline set forth in the June 16

letter from Respondent. Thus, on September 21, 2004, Respondent

sent another letter, advising Petitioner that Respondent would

review Petitioner's approval status at its meeting on

October 14, 2004. This letter notes that Respondent had not

received any response to the request for a Program Evaluation

Report, and Respondent would not accept additional documents for

consideration at its October 14 meeting. Ms. Pryce claims that

hurricane season and her unfamiliarity with computers delayed

the timely delivery of the Program Evaluation Report, but these

claims do not justify the length of time, past the deadline,

before Ms. Pryce filed the report.

8. Based on its consideration of the matter at the O ctober

meeting, Respondent issued, on November 2, 2004, an Order

determining that Petitioner was not in compliance with Board

rules due to the above - described relocation and failure to file

a Program Evaluation Report. The Order notes that Petitioner's

ap proval has expired and is not renewed until Petitioner timely

files a Program Evaluation Report, undergoes a site visit by the

Executive Director of the Board, and appears at the Board's

December 2, 2004, meeting. Until then, the Order prohibits

Responden t from admitting additional students, although it may

continue to educate existing students, who will be eligible to

take the licensure examination, upon graduation.

9. The November 2 Order memorializes the decision of the

Board -- and agreed to by Ms. Pryce - - to extend the deadline for

filing the Program Evaluation Report to November 1, 2004. The

Order requires the Program Evaluation Report to demonstrate

compliance with Florida Administrative Code Rules 64B9 - 2.002(2)

and (6) and Petitioner to demonstrate com pliance with Florida

Administrative Code Rule 64B9 - 2.015, during the site visit.

10. On November 12, 2004 -- 11 days after the extended

deadline to which she had agreed -- Ms. Pryce filed the Program

Evaluation Report. Two days later, Respondent's Executive

Dir ector conducted a site visit. On his site visit, the

Executive Director found that the passing rate of Petitioner's

students, on the practice nursing licensure exam, for the

2002 - 03 school year was 63.2 percent, while the national and

Florida averages wer e 86.5 percent, and the passing rate of

Petitioner's students for the 2003 - 04 school year was 59.1

percent, while the national average was 88.7 percent and the

Florida average was 83.6 percent. Since at least 1997, the

passing rate of Petitioner's student s has been at least 10

percent below the national average passing rate. The Executive

Director also issued a report, dated November 17, 2004, setting

forth various recommendations to the Board for consideration to

improve the quality of Petitioner's progr am.

11. At Ms. Pryce's request, the Board continued

consideration of Petitioner's case from the December meeting to

the February meeting. The December 7, 2004, letter continuing

the matter also warns Petitioner to provide to Respondent any

additional material s that Petitioner wants the Board to consider

prior to January 3, 2005.

12. At the February, 10, 2005, meeting, the Board asked

Ms. Pryce if she had yet obtained a consultant's report with

specific recommendations to improve the quality of Petitioner's

nurse - e ducation program. Ms. Pryce responded that she had a

consultant in mind, but had not retained anyone yet.

13. On February 16, 2005, Respondent issued a second

Order. The Order outlines the above - stated facts and revokes

Petitioner's approval, effective June 30, 2005, but allows

currently enrolled students to complete the program by June 30,

2005.

14. On March 6, 2005, a consultant issued a detailed

report, recommending that Petitioner raise its admission

standards and provide tutoring for students, form an advi sory

committee for curriculum, and increase faculty involvement and

raise faculty standards.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2005).

16. Section 464.019, Florida Statutes, authorizes

Respondent to adopt rules to approve and administer programs for

the education of nurses. Section 464.019(4) provides:

If the board, through an investigation by

the department, finds that an approved

program no longer meets t he required

standards, it may place the program on

probationary status until such time as the

standards are restored. If a program fails

to correct these conditions within a

specified period of time, the board may

rescind the approval. Any program having

its approval rescinded shall have the right

to reapply.

17. Section 464.019(6) and (7), Florida Statutes,

provides:

(6) Any nursing program that maintains

accreditation through a nursing accrediting

body recognized by the United States

Department of Educa tion shall be exempt from

the rules of the board except as provided in

paragraph (2)(b), provided such exemption

shall apply only to the extent the program

maintains a student pass rate on the National

Clinical Licensure Examination of not less

than 10 per centage points below the national

average pass rate as reported annually by the

National Council of State Boards of Nursing.

(7) If an institution's passing rate on the

National Clinical Licensure Examination drops

below the standard established in subs ection

(6) for 2 consecutive years, the program must

be reviewed by the board. The board may take

action to assist the program to return to

compliance. Any program having its approval

rescinded shall have the right to reapply .

18. The above - cited statutes g ive Respondent the authority

to regulate a nurse - education program, subject Petitioner to

Respondent's rules due to Petitioner's status as an unaccredited

program, and require Respondent to impose probation on a

regulated program prior to rescinding the pr ogram's approval.

19. As assumed by Respondent in its Proposed Recommended

Order, even though Petitioner's approval has expired, this case

must proceed as though Respondent were rescinding Petitioner's

approval to operate a nurse - education program. See, e.g. ,

Durbin v. Department of Business Regulation , 262 So. 2d 273

(Fla. 1st DCA 1972); Vocelle v. Riddell , 119 So. 2d 809 (Fla. 2d

DCA 1960); and Vicbar, Inc., v. City of Miami , 330 So. 2d 46

(Fla. 3d DCA 1976), cert. denied , 344 So. 2d 324 (Fla. 1977).

Petiti oner must thus prove the material allegations by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

20. The requirements that Re spondent has imposed upon

Petitioner are all derived from the rules.

21. The requirement of notice prior to relocating

facilities is based on two rules. Florida Administrative Code

Rule 64B9 - 2.013(2) provides that the program operator must

notify Respondent , in writing, of "any change in information

provided to meet standards of nursing education." Florida

Administrative Code Rule 64B9 - 2.015(2) provides, as to such

standards:

Resources. The parent institution shall

provide financial and administrative supp ort

and resources to the nursing program

that includes:

(a) Classroom space, laboratories, and

office space for the nursing program.

(b) Nursing resource library holdings to

include textbooks, journals and

instructional media that are pertinent,

re cent, and have appropriate content and

reading level.

1. A regular schedule for evaluation

and deletion of outdated books and

instructional media.

2. Teaching materials to include a

variety of current technological aids for

both group and sel f - instruction.

(c) Secretarial, clerical, and other

support personnel services.

(d) Counseling services and remedial

assistance for students.

22. The requirement of a minimum pass rate, which is

mentioned in the statute cited above, is also based on a rule.

Florida Administrative Code Rule 64B9 - 2.015(12)(a) requires that

each nurse - education program maintain a pass rate that is not

less then ten percent lower than the pass rate of the nation or

Florida, whichever is lower.

23. The requirement of a Progr am Evaluation Report is

found in Florida Administrative Code Rule 64B9 - 2.015(12)(b),

which provides:

The nursing program shall have a written

plan for the systematic evaluation of the

total program and its outcomes for the

purpose of determining competency , adequacy

and effectiveness. The plan shall include

the methodology, frequency of evaluation,

assignment of responsibility, and evaluative

criteria. The following areas shall be

evaluated:

1. Organization and administration of

the program;

2. Ph ilosophy, conceptual framework, and

objectives/outcomes;

3. Curriculum;

4. Educational facilities, resources,

and services;

5. Clinical resources;

6. Students theoretical and clinical

performance;

7. Graduates’ performance on the

licens ing examination;

8. Graduates’ nursing competence;

9. Performance of the faculty;

10. Protection of patient safety;

11. The methods and instruments used for

evaluation purposes.

24. Respondent has proved that Petitioner has failed to

comply wi th the requirements of notice prior to relocation, pass

rates, and Program Evaluation Reports. The only remaining issue

in this case is whether Respondent has satisfied the condition

precedent of probation prior to rescinding Petitioner's approval

to cond uct a nurse - education program.

25. Florida Administrative Code Rule 64B9 - 2.011(3)

provides:

Probationary Status: If a program which has

received provisional or full approval fails

to maintain compliance with the standards of

nursing education, the program w ill be

permitted to continue operations only under

conditions set by the Board.

26. Florida Administrative Code Rule 64B9 - 2.001(6) defines

"probationary status" as: "a status indicating a nursing

education program has not met the standards established by th e

Board."

27. Florida Administrative Code Rule 64B9 - 2.002(3) - (6)

states:

(3) Probationary status – An institution

may be placed on probationary status when in

the opinion of the Board the institution

does not meet required standards.

Probationary status, if granted, shall be

for a specified period of time as determined

by the Board on an individual basis.

(4) The Board may decline to approve any

program on provisional status, or decline to

renew or rescind approval of any program on

probationary status whic h fails to meet

required standards or fails to make

satisfactory progress for corrections of

deficiencies within the time period outlined

by the Board.

(5) The administrator of the nursing

program shall be notified in writing of any

problems with program s on provisional or

probationary status prior to Board action.

(6) Programs reapplying for approval shall

meet required standards as outlined in

paragraph 64B9 - 2.002(1)(a), F.A.C., prior to

renewal of the program approval by the

Board. As a condition of renewal, a program

may be placed on probation if it does not

meet the required standards.

28. Although Respondent did not use the word, "probation"

in the November 1 Order, the effect of this Order was to place

Petitioner on probation until it filed a Progra m Evaluation

Report and demonstrated evidence of its compliance with the

Standards of Nursing Education, as disclosed by a site visit.

Another condition of probation was the prohibition against the

admission of new students, until the other probationary

c onditions had been satisfied. Respondent has thus satisfied

the requirement that it place a program on probation prior to

rescinding program approval.

29. While on probation, Petitioner has failed, without

justification, to satisfy the conditions of probati on.

Petitioner's various violations -- most importantly, of the

minimum pass rate -- justify rescission of the approval to operate

a nurse - education program.

RECOMMENDATION

It is

RECOMMENDED that the Board of Nursing enter a final order

rescinding Petition er's approval to operate a nurse - education

program.

DONE AND ENTERED this 21st day of November, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 21st day of November, 2005.

COPIES FURNISHED:

Dan Coble, Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Flo rida 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

Mark J . Berkowitz

Mark J. Berkowitz, P. A.

524 South Andrews Avenue, Suite 200N

Fort Lauderdale, Florida 33301

Lee Ann Gustafson

Assistant Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

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 must be filed with the agency that

will issue the final order in this case.