07-003613 Board Of Nursing vs. Health Opportunity Technical Center, Inc. Status: Closed Recommended Order on Tuesday, December 16, 2008.

Summary: Board failed to prove that graduates of practical nursing program scored more than 10% below the national average passrate on national exam or that the program failed to provide remediation services for students. Program approval should not be rescinded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 07-3613

)

HEALTH OPPORTUNITY TECHNICAL )

CENTER, INC., )

)

Respondent. 1 )

_________________________________)

RECOMMENDED ORDER

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

on August 26, 2008, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: Gregory M. Oshalek, Esquire

90 Southwest 8th Street, Suite 211

Miami, Florida 33130

STATEMENT OF THE ISSUE

Whether the Respondent's provisional approval to operate a

practical nursing program should be rescinded for the reasons

stated in the Notice of Intent to Rescind Program Approval dated

May 10, 2007.

PRELIMINARY STATEMENT

In a Notice of Intent to Rescind Program Approval dated

May 10, 2007, the Board of Nursing ("Board") notified Health

Opportunity Technical Center ("HOTC") that it intended to

rescind HOTC's "application for certification to maintain

provisional approval" of its practical nursing program because

it was "not in compliance with the standard terms of their

provisional approval." The Board alleged that HOTC "failed to

demonstrate student success within 10 percentage points below

the national average on [sic] pass rate as reported annually by

the National Council [of] State Boards of Nursing," as required

by Section 464.019(6) and (7), Florida Statutes. The Board also

alleged that HOTC "does not meet Florida Administrative Code,

64B9-2.015(12) Program Evaluation; 64B9-2.015(1)(d)(f) student

admission records and class lists; 64B9-2.015(2)(b)2.(d)

remediation of students allowed to progress not meeting

institutional progression standards." 2 Finally, the Board stated

that "[b]ased on the foregoing, the Florida Board of Nursing may

refuse to certify an applicant for provisional approval, or

impose conditions, pursuant to Sections 464.018(2) and

456.072(2), Florida Statutes."

HOTC requested an administrative hearing to resolve

disputed issues of fact, and the Board transmitted the matter to

the Division of Administrative Hearings for assignment of an

administrative law judge. The final hearing in this case was

originally scheduled for May 10, 2007; after several

continuances, the final hearing was held, pursuant to notice, on

August 26, 2008.

At the hearing, the Board conceded that the preliminary

decision to rescind approval of HOTC's NCLEX-PN was akin to a

license revocation proceeding and accepted the burden of proof

and the burden of going forward with the evidence. The Board

presented the testimony of Rick Garcia but did not offer any

documents into evidence. HOTC presented the testimony of Carol

Johnson and Joyce Byrd-Strozier, and Respondent's Exhibits 1

through 8, 10, 11, and 13 through 16 were offered and received

into evidence.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on September 19, 2008.

The Board's request for an extension of time for filing its

proposed recommended order was granted, and the parties timely

filed proposed findings of fact and conclusions of law, which

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Board is, and was at the times material to this

matter, the state agency responsible for reviewing and approving

nursing programs in Florida pursuant to Section 464.019, Florida

Statutes (2007). 3

2. HOTC's practical nursing program was provisionally

approved in June 2003, and HOTC has been operating its practical

nursing program since that time.

3. HOTC admitted the first class of students into its

practical nursing program in August 2003, and it became

accredited by the Accrediting Bureau of Health Education Schools

in July 2005.

4. The practical nursing program provided by HOTC is

directed to non-traditional students, that is, students who are

pursuing a second career, students who come from an

underprivileged community, and students who need additional

help.

5. The practical nursing program at HOTC takes over one

year to complete. There is only one course in the program that

is a prerequisite to all other courses in the program, and this

course must be satisfactorily completed before a student is

allowed to take other courses. No other courses in the program

are sequential, and students who have passed the one pre-

requisite course may take any of the courses in the program,

even if they have failed one or more courses. Each student

must, however, satisfactorily complete all courses before he or

she can graduate from the program.

6. On February 4, 2005, HOTC sent a list of the students

in its first graduating class to the Board so that the Board

could certify the graduates as eligible to take the National

Comprehensive Licensure Examination for practical nursing, known

as the NCLEX-PN, given under the auspices of the National

Council of State Boards of Nursing ("Council"). A candidate

must pass the NCLEX-PN in order to qualify for licensure in

Florida as a practical nurse.

7. The Council contracts with a vendor, which administers

the examination each quarter. Each quarter, the vendor issues

reports to the Board containing the pass-rates on the NCLEX-PN;

the reports are provided to the Board on the 15th day of the

month following the end of each quarter. Each quarterly report

contains data for that quarter, as well as cumulative data for

the year-to-date.

8. Each practical nursing program has a NCLEX-PN number

that must be entered on the answer sheet of each student taking

the examination. This allows the examination vendor to compile

data for each practical nursing program.

9. The data made available to the Board in the reports

issued by Council's examination vendor include the national

average pass-rate for the examination; the total number of

candidates from each practical nursing program in Florida taking

the examination; and the scores for each candidate in each

program. The NCLEX-PN vendor computes the pass-rate for the

candidates nationally and for each practical nursing program in

Florida by dividing the number of candidates passing the

examination by the number of candidates taking the examination.

10. The Board relies on the information contained in the

examination vendor's report as an accurate statement of the

national average pass-rates for the NCLEX-PN and of the pass-

rates for each of the practical nursing programs in Florida.

11. The NCLEX-PN data for Florida are posted on the

Board's website, where they may be viewed and downloaded by

schools offering practical nursing programs; a copy of the

quarterly reports are also sent to all deans and directors of

practical nursing programs with e-mail addresses on file with

the Board. In 2005 and 2006, the times pertinent to this

proceeding, HOTC did not access the NCLEX-PN data on the Board's

website, and HOTC did not receive copies of any of the relevant

NCLEX-PN reports from the Board.

12. Several of the Board's staff, including its Executive

Director, Rick Garcia, conducted a site visit at HOTC on

October 10, 2006, to evaluate HOTC's practical nursing program.

One reason for the site visit was the staff's concern about the

pass-rates of HOTC students on the NCLEX-PN.

13. Carol Johnson, the dean of HOTC and the administrator

of its nursing program, was present for most of the site visit,

which lasted between two and four hours.

14. The Board's staff requested during the site visit that

HOTC provide five to seven representative student files, which

were produced. Mr. Garcia reviewed two student files that

caused him concern because the students had failed several

courses but were allowed to take additional courses before being

required to remediate and demonstrate mastery of the content of

the failed courses. Mr. Garcia noted during the site visit that

the documents in one student's file were not arranged

sequentially, which caused him concern regarding consistency in

file-keeping. 4

15. The site-visit team prepared a Program Evaluation Site

Visit Report which contained a statement of its findings and a

list of four recommendations. The report was presented to the

Board.

Sufficiency of the evidence .

16. The Board failed to present any credible evidence to

support its contention that the pass-rates of HOTC's graduates

on the NCLEX-PN for 2005 and 2006 were more than 10 percentage

points below the national average pass-rates for those years.

First, the Board failed to present any credible evidence to

establish the pass-rates for HOTC's graduates on the NCLEX-PN

for 2005 and 2006. The only evidence presented was the

testimony of Mr. Garcia, and this testimony was based on the

information contained in the report of the October 10, 2006,

site visit. That report included a table purporting to show the

number of HOTC graduates who took the NCLEX-PN in 2005 and in

2006, through September 30, 2006; the number of HOTC graduates

who passed the NCLEX-PN in 2005 and in 2006, through

September 30, 2006; and the pass-rates of HOTC graduates in 2005

and in 2006, through September 30, 2006. Both Mr. Garcia's

testimony regarding the pass-rates of HOTC's graduates and the

numbers included in the site visit report are, however, hearsay 5

and cannot form the basis for a finding of fact regarding the

pass-rates of HOTC's graduates in 2005 and in 2006. 6 Although

Mr. Garcia testified that the numbers contained in the site

visit report upon which he and the Board relied were drawn from

the reports sent to the Board by the vendor that administered

the NCLEX-PN, the Board did not offer into evidence a copy of

the vendor's reports relating to the pass-rates of HOTC's

graduates for the relevant time periods. 7 Without these reports,

the Board has failed to present evidence upon which a finding of

fact can be made as to the pass-rates of HOTC's graduates for

2005 and 2006.

17. Second, the Board failed to present any credible

evidence to establish the national average pass-rates for the

NCLEX-PN for 2005 and 2006, the pass-rates against which HOTC's

pass-rates would have been measured. Again, the only evidence

presented by the Board regarding the NCLEX-PN national average

pass-rates for 2005 and 2006 was Mr. Garcia's testimony, and

this testimony was based on his recollection that the pass-rate

was "generally . . . in the mid to high 80's" and on his

reliance on the national average pass-rates included in the

Board's answers to interrogatories propounded by HOTC. 8

Mr. Garcia's testimony regarding the national average pass-rates

on the NCLEX-PN for 2005 and 2006 is hearsay, and the

information regarding the national average pass-rates included

in the interrogatory answer is not only hearsay, 9 it is also of

questionable validity because the interrogatories were not

answered under oath as required by Florida Rule of Civil

Procedure 1.340(a) and were signed only by counsel for the

Board. Therefore, neither Mr. Garcia's testimony nor the

information set forth in the interrogatory answer is sufficient

to support a finding of fact as to the national NCLEX-PN pass-

rates in 2005 and 2006. 10 Mr. Garcia testified that the national

average pass-rates for the NCLEX-PN for 2005 and 2006 were drawn

from the reports sent to the Board by the vendor that

administered the NCLEX-PN, but the Board did not offer into

evidence a copy of the vendor's reports containing the national

average pass-rates for the relevant time periods. 11 Without

these reports, the Board has failed to present evidence upon

which a finding of fact can be made as to the national average

pass-rates upon which the Board relied in reaching its

preliminary decision to rescind its approval of HOTC's nursing

program. 12

CONCLUSIONS OF LAW

18. 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 (2008).

19. In accordance with the Board's concession that its

decision to rescind its provisional approval of HOTC's practical

nursing program is, in essence, a decision to revoke a license,

the Board has the burden of proving the grounds for rescission

set forth in the Notice of Intent to Rescind Program Approval by

clear and convincing evidence. Department of Banking & Finance,

Division of Securities & Investor Protection v. Osborne Stern &

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

2d 292 (Fla. 1987).

20. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court explained:

[C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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

the firm belief of 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).

Judge Sharp, in her dissenting opinion in Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed

several pronouncements on clear and convincing evidence:

Clear and convincing evidence requires more

proof than preponderance of evidence, but

less than beyond a reasonable doubt. In re

Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

intermediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L. Ed. 2d 672 (1996). The sum total of

evidence must be sufficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davie , 645

So. 2d 398, 404 (Fla. 1994).

21. In its Notice of Intent to Rescind Program Approval,

the Board charged that HOTC was not in compliance with the

requirements of Section 464.019(6) and (7), Florida Statutes,

and "Florida Administrative Code, 64B9-2.015(12) Program

Evaluation; 64B9-2.015(1)(d) [and] (f) student admission records

and class lists; 64B9-2.015(2)(b)2.(d) remediation of students

allowed to progress not meeting institutional progression

standards." As noted in endnote 2, the Board omitted reference

to "Program Evaluation" and "student admission records and class

lists" from the statement of the issues included in the Pre-

Hearing Statement filed by the parties; furthermore, the Board

did not address these two issues in its Recommended Order. It

is presumed, therefore, for purposes of this Recommended Order,

that the Board has abandoned Florida Administrative Code

its preliminary decision to rescind approval of HOTC's practical

nursing program. 13

22. Section 464.019, Florida Statutes, provides in

pertinent part:

6) Any nursing program that maintains

accreditation through a nursing accrediting

body recognized by the United States

Department of Education 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 percentage 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

subsection (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.

23. Based on the findings of fact herein, the Board has

failed to prove by clear and convincing evidence that the pass-

rates of HOTC graduates taking the NCLEX-PN in 2005 and 2006

were more than 10 percentage points below the national average

pass-rates reported by the Council. The Board, therefore,

failed to prove that HOTC was not in compliance with

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

24. The Board also charged that HOTC was not in compliance

with Florida Administrative Code Rule 64B9-2.015(2)(b)2.(d).

There is no such subsection of Rule 64B9-2.015, and the only

portion of Rule 64B9-2.015 that deals with remedial assistance

is subsection (2)(d), which provides:

(2) Resources. The parent institution

shall provide financial and administrative

support and resources to the nursing program

that includes:

* * *

(d) Counseling services and remedial

assistance for students.

25. Based on the findings of fact herein, the Board has

failed to prove by clear and convincing evidence that HOTC did

not provide counseling and remedial services for its services.

The evidence presented by the Board established only that

Mr. Garcia was concerned because HOTC allowed students who

failed one or more courses in its practical nursing program to

continue taking courses, with the understanding that the student

would demonstrate mastery of all of the required courses prior

to graduation from the program. The Board did not cite in the

Notice of Intent to Rescind Program Approval or in its Proposed

Recommended Order any statute or rule that requires HOTC to

require its students to pass each course before being allowed to

take another course in the program. Mr. Garcia's concern does

not constitute a failure by HOTC to comply with Florida

Administrative Code Rule 64B9-2.015(2)(d), and the Board,

therefore, failed to prove that HOTC was not in compliance with

that rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding that Health Opportunity Technical Center, Inc.,

did not commit the violations alleged in the Notice of Intent to

Rescind Program Approval dated May 10, 2007, issued to Health

Opportunity Technical Center, Inc. and withdrawing the Notice of

Intent to Rescind Program Approval.

DONE AND ENTERED this 16th day of December, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of December, 2008.

ENDNOTES

1 / The style of the case has been amended pursuant to the

discussion at the hearing regarding the nature of the Board's

proposed action and the assignment of the burden of proof.

2 / In the Pre-hearing Stipulation filed by the parties, the

Board further refined the factual issues in this case, stating

its position that "HOTC's students were not meeting the required

passing level on the national licensure examination, and HOTC

was allowing students to progress through its program without

mastery of content of the required coursework."

3 / All references herein to the Florida Statutes are to the 2007

edition unless indicated otherwise.

4 / During his testimony, Mr. Garcia also discussed his concern

that the medication Solu-Medrol was stored in a cabinet to which

students in the practical nursing program had access. According

to Mr. Garcia, the Solu-Medrol was a medication that was outside

the scope of practice for practical nurses. This item was not,

however, identified in the Notice of Intent to Rescind Program

Approval as a basis for the Board's decision.

5 / Hearsay is defined in Section 90.801(c), Florida Statutes, as

"a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted." A "statement" includes a

"written assertion," and a "declarant" is the "person who makes

the statement." § 90.801(a) and (b), Fla. Stat. The person

making the written statement setting forth the numbers and pass-

rates included in the report of the site visit was the NCLEX-PN

examination vendor who submitted the reports to the Board.

6 / See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used

for the purpose of supplementing or explaining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil actions.")

7 / Even though the vendor's reports, had the Board offered them

into evidence, would have been hearsay as to the truth of the

information contained in the reports, they would have been

admissible to show that Board routinely relies on the

information contained in the reports in making decisions

involving the pass-rates of graduates of practical nursing

programs in Florida.

8 / Transcript at page 27; HOTC Exhibit 8 at paragraph 2. It is

noted that Mr. Garcia's claim that his memory was refreshed by

reference to the interrogatory answer is not persuasive, given

that it was clear from the circumstances that he relied on the

interrogatory answer to respond to counsel's question regarding

the average national pass-rates for 2005 and 2006.

9 / See endnote 5, above.

10 / See endnote 6, above.

11 / See endnote 7, above.

12 / Mr. Garcia testified that the national average pass-rates

for the NCLEX-PN for 2005 and 2006 were read into the minutes of

the April 2007 Board meeting. The Board did not offer the

minutes of this meeting into evidence.

13 / It is also noted that the Board stated in the Notice of

Intent to Rescind Program Approval that its authority to "refuse

to certify an applicant for provisional approval, or impose

conditions," derived from Sections 464.018(2) and 456.072(2),

Florida Statutes. It is apparent from the provisions of these

statutes that they deal with the licensure and discipline of

nurses, in particular, and health care professionals, in

general. These statutory provisions are, therefore,

inapplicable to confer on the Board the authority to rescind

approval for HOTC's practical nursing program. Nonetheless, the

Board does have the authority to rescind approval for a nursing

program pursuant to Section 464.019(4), Florida Statutes, when

the program no longer meets the required standards for such

programs. HOTC did not raise the issue of the source of the

Board's statutory authority to issue the Notice of Intent to

Rescind Program Approval, and it litigated the issue of HOTC's

compliance with the standards applicable to practical nursing

programs by acquiescence.

COPIES FURNISHED:

Lee Ann Gustafson, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Gregory M. Ochalek, Esquire

90 Southwest 8th Street, Suite 211

Miami, Florida 33130

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Rick Garcia, MS,RN,CCM

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399-1701

Patricia Dittman, Ph.D (C),RN, CDE

Department of Health

4052 Bald Cypress Way

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.