05-003235PL Department Of Health vs. Rose Gaubert, C.N.A. Status: Closed Recommended Order on Wednesday, December 14, 2005.

Summary: Respondent`s behavior towards a nursing home resident warrants discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3235PL

)

ROSE GAUBERT, C.N.A., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 19, 20 05, an administrative hearing in this case

was held in Ft. Myers, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kurt L. Barch, Esquire

Department of He alth

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Rose Gaubert, pro se

1613 Maple Drive

Fort Myers, Florida 339 07

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Complaint are correct, and , if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 16, 2005, the

Department of Health (Petitioner) alleged that Rose Gaubert,

C.N.A. (Respondent) , violated certain Florida Statutes related

to the provision of nursing services. The Respondent disputed

the allegations and requested a formal administrative hearing.

The Petitioner f orwarded the matter to the Division of

Administrative Hearings, which scheduled the hearing to commence

on October 19, 2005.

At the hearing, the Petitioner presented the testimony of

five witnesses and had Exhibits numbered 1 and 2 admitted into

evidence . The Respondent testified on her own behalf. The

hearing T ranscript was filed on November 15, 2005. The

Petitioner filed a Proposed Recommended Order that has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all t imes material to this case, the Respondent was

a c ertified n ursing a ssistant (C.N.A.), holding Florida

certificate number CX 0501XXXX17400.

2. At all times material to this case, the Respondent was

employed as a C.N.A. at the Rehabilitation and Health C are

Center, 2629 Del Prado Boulevard, Cape Coral, Florida.

3. One of the residents at the facility where the

Respondent was employed was H.L., a 67 - year - old female described

as frail and in poor health, suffering from dementia, vascular

insufficiency , a nd cardiac problems.

4. On October 24, 2004, the Respondent was assigned to

provide care to H.L. On that day, other employees heard yelling

coming from H.L.'s room and entered her room, whereupon the

Respondent was observed yelling at H.L with the Resp ondent's

hands on H.L.'s shoulders and legs, forcefully pushing H.L. onto

a bed.

5. Linda Roan, a registered nurse, testified at the

hearing as an expert in nursing care of elderly patients. Nurse

Roan opined that the treatment provided by the Responde nt to

H.L. on October 24, 2004, failed to meet minimal standards of

acceptable and prevailing nursing practice. Nurse Roan's

testimony is accepted.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and t he subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2004).

7. The Petitioner is the state agency charged with the

regulation of C.N.A. s in the State of Florida. See Ch . 464 ,

Fla . Stat . (2004) .

8. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So . 2d

932, 935 (Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 29 2 (Fla.

1987). Clear and convincing evidence is that which is credible,

precise, explicit , and lacking 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 the firm belief of conviction ,

without hesitancy, as to the truth of the allegations.

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

In this case, the burden has been met.

9. The Administrative Complaint charges that the

Respondent has violated S ubs ection 464.204(1 )(b), Florida

Statutes (2004) , by violating S ubs ection 464.018(1)(n), Florida

Statutes.

10. S ubs ection 464.018(1)(n), Florida Statutes (2004) ,

provides that failure to meet minimal standards of acceptable

and prevailing nursing practice constitutes grou nds for

disciplinary action.

11. S ubs ection 464.204(1)(b), Florida Statutes (2004) ,

provides in relevant part as follows :

(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.

(2) When the board finds any person guilty

of any of the grounds set forth in

subsection (1), it may enter an order

imposing one or mo re of the following

penalties:

(a) Denial, suspension, or revocation of

certification.

(b) Imposition of an administrative fine

not to exceed $150 for each count or

separate offense.

(c) Imposition of probation or restriction

of certification, inc luding conditions such

as corrective actions as retraining or

compliance with an approved treatment

program for impaired practitioners.

12. As set forth herein, the evidence establishes that the

Respondent is guilty of one count of failure to meet minim al

standards of acceptable and prevailing nursing practice.

13. In its Proposed Recommended Order, the Petitioner

asserts that the applicable disciplinary guidelines are set

forth at Florida Administrative Code Rule 64B9 - 8 . 006 which are

applicable to the practice of nursing, and provide that an

administrative fine of between $250 to $500 is the appropriate

penalty in this case. The Petitioner's suggested penalty

exceeds that authorized by S ubs ection 464.204(1)(b), Florida

Statutes (2004) .

14. Florida A dministrative Code Rule 64B9 - 15.009 sets

forth disciplinary guidelines specifically related to C.N.A. s

which are to be utilized in determining the appropriate penalty

to be assessed in this case; however, none of the guidelines

reference the statutory viol at ions alleged in the Administrative

Complaint. The following penalty is based upon the language set

forth at S ubs ection 464.204(1)(b), Florida Statutes (2004) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMM ENDED that the Department of Health enter a f inal

o rder finding that Rose Gaubert, C.N.A., is guilty of one count

of failure to meet minimal standards of acceptable and

prevailing nursing practice, and imposing a fine of $50, a

probationary period of one y ear, and such additional training as

the Department of Health deems appropriate.

DONE AND ENTER ED this 14th day of December , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Di vision 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

t his 14th day of December , 2005 .

COPIES FURNISHED :

Kurt L. Barch, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Rose Gaubert

1613 Maple Drive

Fort Myers, Florida 33907

R. S. Power, A gency 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

Tallahassee, Florida 32399 - 1701

Dan Coble, RN PhD CNAA C, BC

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 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.