17-005488PL Department Of Health, Board Of Nursing vs. Francoise Gloria Hector Utega, C.N.A. Status: Closed Recommended Order on Tuesday, February 6, 2018.

Summary: DOH proved CNA suffered from schizophrenia that she did not treat, and CNA was unsafe to practice until treated and monitored through IPN.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 17 - 5488PL

FRANCOISE GLORIA HECTOR UTEG G , 1/

C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDE R

On December 8, 2017, Administrative Law Judge (ALJ)

J. Lawrence Johnston of the Division of Administrative Hearings

(DOAH) conducted a disputed - fact hearing in this case by video

teleconference at sites in Orlando and Tallahassee.

APPEARANCES

For Petiti oner: Kristen M. Summers, Esquire

Lindsey H. Frost, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

Fo r Respondent: Francoise Gloria Hector Uteg g , pro se

7007 Belroi Street

Orlando, Florida 32818

STATEMENT OF THE ISSUE S

The issues are whether the Respondent should be disciplined

under sections 464.204(1)(b) and 456.072( 1)(z), Florida

Statutes 2/ ; and, if so, the appropriate discipline.

PRELIMINARY STATEMENT

On April 26, 2017, the Petitioner filed an Administrative

Complaint against the Respondent. The Administrative Complaint

charged the Respondent with the statutory vio lations for being

unable to practice as a nursing assistant due to her mental

condition, schizophrenia.

The Respondent disputed the charges and requested a hearing.

The Petitioner forwarded the case to DOAH for assignment to an

ALJ. It was designated DOA H case 17 - 5488PL and scheduled fo r

hearing on December 8, 2017.

At the hearing, the Petitioner introduced two exhibits,

including the transcript of the deposition of Jamie Smolen, M.D.,

and called the Respondent to testify. The Respondent introduced

no ev idence other than her testimony.

The Petitioner ordered a transcript, and the parties were

given ten days from the filing of the transcript to file proposed

recommended orders. The Respondent filed a closing argument of

sorts on December 12, but nothing after the filing of the

Transcript on January 16. The Petitioner filed a Proposed

Recommended Order. Both filings have been considered.

FINDING S OF FACT

1. The Petitioner regulates the practice of nursing and

nursing assistants in Florida. The Respond ent holds license

CNA 140254, which allows her to work as a certified nursing

assistant (CNA). She became licensed in 2006 and worked as a

CNA at Quality Health Care Center (ÐQuality Health CareÑ) in

Winter Garden from 2007 through 2016. There is no ev idence that

the Petitioner was aware of any concerns about the RespondentÓs

ability to practice as a CNA with reasonable skill and safety

until May 2016.

2. In May 2016, the Respondent sent an e - mail to the

PetitionerÓs Medical Quality Assurance Consume r Services Unit

that said:

Hi this is Francoise Utegg license # 140254

CNA. I m impossible since 2005 after I

bought an house with my husband at 2004

Kruger Dr Modesto CA 95355 Since in the next

day we finished repair the house I m

impossible they execut ed me and video track

me I face cults culture deaths IÓm living an

abandoned live people talking inside me it s

not in my brain you can verify my work and I

never give up to work I found out a gang

tracking me to force me to give up my life.

I was at wo rk yesterday someone talk in me

said I will cheats you, They pushed me down

verbal harassing terracing terrified

terrorize everywhere I m it s feel like I

donÓt have any right They say that I m

assaulted to take care of children. They

dissolution my mar ried and pushed me down

they wasting me in nightmares

Thanks for your concern. It s can be

anyoneÓs else

3. The RespondentÓs intent in sending this e - mail was to do

a public service by alerting the Petitioner to the possibility

that many other peopl e might come under similar attacks, to the

detriment of their health and safety. The result was that the

Petitioner immediately began an investigation into the

RespondentÓs ability to practice with reasonable skill and safety

due to a physical or mental i llness. The investigation included

an interview with the Respondent and an inquiry to the

Intervention Project for Nurses (IPN), which reported that the

Respondent was not a program participant. In July 2016, the

Petitioner ordered the Respondent to unde rgo a mental and

physical examination to determine her ability to practice and the

need for IPN. An examination by Jamie Smolen, M.D., was

scheduled for February 13, 2017.

4 . In December 2016, the Respondent was at work in the

dining room at Quality He alth Care when she began hearing voices

telling her that she was Ða domestique,Ñ i.e. , in her native

Haitian patois, no more than a common house maid. This insulted

and angered the Respondent, who was very proud of having passed

her licensure examination and worked as a licensed nursing

assistant for almost ten years . The Respondent controlled her

anger while working with her patients but then began to angrily

and loudly dispute what the voices were saying and angrily threw

dirty dishes and utensils into a wash tub, which made loud

crashing sounds.

5 . The family of one of the patients heard and saw this

incident and reported it to the administration of Quality Health

Care. Quality Health Care investigated the familyÓs report and

required the Respondent to be evaluated and cleared before

returning to work.

6 . Dr. Smolen examined the Respondent as scheduled on

February 13, 2017. He diagnosed schizophrenia, paranoid type,

continuous.

7 . Schizophrenia is a mental disorder characterized by

abnormal so cial behavior and a failure to understand what is

real . S ymptoms include : delusions ; hallucinations ; and

disorganized speech.

8 . Dr. Smolen recommended that the Respondent did not have

reasonable skill and safety to return to practice as a CNA; that

s he should receive psychiatric medication management; that she

should agree to a mental health monitoring contract with IPN;

that she should not be allowed to return to work until she

demonstrated full compliance with the IPN contract, including

medication management and psychiatric follow - up to confirm

remission in response to treatment; and that she should be

evaluated at that time for recovery status and return to work.

9 . Dr. SmolenÓs opinion is based in part on information

provided to him by the Resp ondent. She is a Haitian woman, aged

approximately 50, who married a Canadian and accompanied him when

he returned to Canada in 1996. They moved to Modesto,

California, and in 2005 they undertook to renovate a home they

purchased there. They worked long and hard. As the repairs were

being finished, the Respondent perceived strange things happening

to her. She believed something was in the house trying to harm

her. She also believed she was under video surveillance and that

a remote - controlled device w as implanted in her abdomen. She

also began to suffer from auditory hallucinations, hearing

disembodied voices speaking French creole. She believed the

voices may have been spirits, a Ðgang cultÑ in the air, or a

Ðsatanic legion.Ñ She thought she had be en Ðvoodoo - ized.Ñ She

suffered physical symptoms, such as weight loss, recurrent

headaches, and abdominal pain that she attributed to the

implanted device. She also imagined being hit in the face by an

invisible hand and an invisible tightening around he r hands.

10 . The RespondentÓs husband did not believe she was

cursed, but instead believed she suffered from schizophrenia, and

he took her to a doctor for treatment. The Respondent called the

doctor a Ðwitch psychologistÑ who prescribed Risperdal, an an ti -

psychotic medication. The Respondent thought the dosage she

received caused her to Ðfloat as though she did not existÑ and

feel Ðlimp like a snake.Ñ In the RespondentÓs mind, this

confirmed that she was cursed, not schizophrenic.

11 . The Respondent had blood drawn for her examination by

the Ðwitch psychologist.Ñ She later saw marks, possibly

hematomas, where the blood was drawn. The Respondent interpreted

the marks as signs that something evil was happening to her.

12 . After what happened to he r in Modesto, the Respondent

and her husband divorced, and she moved to Orlando, Florida. In

Orlando, the RespondentÓs abdominal pain persisted. When the

Respondent sought medical advice, she was referred to mental

health specialists, and the Respondent refused treatment. Not

only did she not believe she had a mental illness, she seemed to

believe the mental health professionals were part of the ÐattackÑ

against her by the evil spirits, or whoever or whatever was

tormenting her.

13 . In 2006, despite h er troubles, the Respondent somehow

managed to become licensed as a nursing assistant, and managed to

get a job as a CNA at Quality Health Care Center. It appears

that she held the job for approximately ten years. The

Respondent proudly reports that she frequently was asked to work

overtime. No testimony or evidence was presented from anyone

other than the Respondent concerning her job performance during

those ten years. It is possible that her work was uninterrupted

by her torments, but not likely, giv en the RespondentÓs self -

reporting of some of the incidents during those ten years.

14 . The Respondent testified that she has called the police

more than ten times over the years to report the harassing voices

she hears because she thinks they could har m others, too. The

usual police response has been to handcuff the Respondent and

transport her to a mental health facility for observation and

treatment. Typically, the Respondent refuses treatment or

discontinues it after a period of compliance, and the pattern

repeats itself.

15 . On February 22, 2017, the Respondent was admitted to

Aspire Healthcare on an inpatient status. She stayed for five

days and was discharged on Zyprexa, an anti - psychotic medication,

with clearance to return to work. She ret urned to work at

Quality Health Care shortly after that and was compliant with her

medication for a time. There was no evidence of any incidents at

work after that.

16 . In April 2017, the Petitioner filed an Administrative

Complaint against the Respond ent alleging her inability to

practice as a nursing assistant with reasonable skill and safety

by reason of her mental illness and her intentional refusal to

comply with recommended treatment. At some point, Quality Health

Care was informed about the Admi nistrative Complaint and placed

the Respondent on leave from her employment. When the Respondent

received the Administrative Complaint in June 2017, she disputed

the charges and asked for a hearing. All of this greatly upset

the Respondent, who stopped t aking her Zyprexa, as futile, and

deco mpensated. A neighbor witnessed bizarre behavior in her home

garden and report ed her to the police, who handcuffed her and

transported her to a mental health facility for observation and

treatment.

17 . On November 3, 2017, Dr. Smolen re - evaluated the

Respondent. His opinion as to the RespondentÓs mental illness

and ability to practice with reasonable skill and safety did not

change.

18 . The Respondent denies that she has a mental illness.

As a result, she does not recognize the need for treatment or

medication or monitoring. Nonetheless, she has shown some

willingness to do what is necessary to remove the restrictions on

her license so she can return to work, and she claims to have

tried to contact IPN, but wit hout success. However, she has not

followed through for long before she gets frustrated with how

long it takes to get cleared to return to work. When that

happens, she stops treatment and medication.

CONCLUSIONS OF LAW

19 . Because the Petitioner seeks t o impose license

discipline, it has the burden to prove the allegations by clear

and convincing evidence. See DepÓt of Banking & Fin. v. Osborne

Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). This Ðentail s both a

qualitative and quantitative standard. The evidence must be

credible; the memories of the witnesses must be clear and without

confusion; and the sum total of the evidence must be of

sufficient weight to convince the trier of fact without

hesitanc y.Ñ In re Davey , 645 So. 2d 398, 404 (Fla. 1994). See

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

1983). ÐAlthough this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence that

is ambiguous .Ñ Westinghouse Elec. Corp. v. Shuler Bros., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

20 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg., D iv. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. DepÓt of

Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002);

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)(Ð[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

incl uded, they must be construed in favor of the licensee.Ñ

(citing State v. Pattishall , 126 So. 147 (Fla. 1930)).

21 . The grounds proven in support of the PetitionerÓs

assertion that the RespondentÓs license should be disciplined

must be those specifically alleged in the Administrative

Complaint. See e.g. , Trevisani v. DepÓt of Health, 908 So. 2d

1108 (Fla. 1st DCA 2005); Cottrill v. DepÓt of Ins. , 685 So. 2d

1371 (Fla. 1st DCA 1996); Kinney v. DepÓt of State , 501 So. 2d

129 (Fla. 5th DCA 1987); Hunter v. D epÓt of ProfÓl Reg. ,

458 So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits the

Petitioner from taking disciplinary action against a licensee

based on matters not specifically alleged in the charging

instruments, unless those matters have been tried by consent.

See Shore Vill. Prop. OwnersÓ AssÓn, Inc. v. DepÓt of Envtl.

Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. DepÓt of

ProfÓl Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

22 . The Administrative Complaint charges the Respondent

with a violation of section 464.024(1)(b), Florida Statutes, by

an intentional violation of section 456.072(1)(z), for being

unable to practice with reasonable skill and safety to patients

by reason of illness or as a result of any mental or physical

condition ( schizophrenia).

23 . The evidence was clear and convincing that the

Respondent is unable to practice with reasonable skill and safety

to patients by reason of her mental illness (schizophrenia)

unless she is treated, in compliance with treatment (includi ng

necessary medications), and being monitored for compliance by

IPN.

24 . The alleged violation of section 464.024(1)(b) is less

clear. The PetitionerÓs theory is that the Respondent

intentionally violated section 456.072(1)(z) because she has been

rep eatedly made aware of her diagnosis, hospitalized for

treatment, and made aware that she must undergo medication

management and treatment for her condition in order to relieve

herself of her mental impairment. However, the Respondent does

not accept the d iagnosis and does not think treatment is

necessary. For that reason, her refusals to be treated cannot be

said to be intentional (although they are evidence of her mental

illness).

25 . Penalties in a licensure discipline case may not exceed

those in ef fect at the time a violation was committed. Willner

v. DepÓt of ProfÓl Reg., Bd. o f Med. , 563 So. 2d 805, 806 (Fla.

1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).

26 . Section 456.079 requires the Board of Nursing (Board)

to adopt disciplinary guidelines for specific offenses.

Penalties imposed must be consistent with any disciplinary

guidelines prescribed by rule. See Parrot Heads, Inc. v. DepÓt

of Bus. & ProfÓl Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA

1999).

27 . The Board may impose the following penalties under

section 456.072(2): suspension or permanent revocation of a

license; restriction of practice of license; imposition of an

administrative fine; issuance of a reprimand or letter of

concern; placement of the licensee on probati on for a period of

time; corrective action; and/or require that the practitioner

undergo remedial education.

28 . Florida Administrative Code Rule 64B15 - 15.009(3)(ee) 3/

provides that the Board shall, when it finds a licensee has

violated section 456.072 (1)(z), impose penalties ranging from

a $50 fine, IPN evaluation, and probation, to a $100 fine,

IPN evaluation, and suspension to be followed by a term of

probation.

29 . Rule 64B15 - 15.009 provides that the Board is entitled

to deviate from the guidel ines upon a showing of aggravating or

mitigating circumstances by clear and convincing evidence.

30 . Rule 64B15 - 15.009(5)(b) provides the following

circumstances which may be considered for purposes of mitigation

or aggravation of penalty:

1. The dang er to the public.

2. Previous disciplinary action against the

registrant in this or any other jurisdiction.

3. The length of time the registrant has

practiced.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterre nt effect of the penalty

imposed.

6 . Any efforts at rehabilitation.

7. Attempts by the registrant to correct or

stop violations, or refusal by the registrant

to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Co st of disciplinary proceedings.

Consideration of these factors warrants a deviation from the

penalty range by eliminating the fine (as suggested in the

PetitionerÓs Proposed Recommended Order).

31 . Section 456.072(4) provides that, in addition to any

o ther discipline imposed for violation of a practice act, the

Board shall assess costs related to the investigation and

prosecution of the case.

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 the Respondent to be in violation of section

456.071(1)(z); suspending her license until she enters into a

mental health contract with IPN, and appears before the Board to

demonstrate, through an evaluation by IPN, that she can practice

as a nursing assistant with reasonable skill and safety to

patients; imposing such additional conditions and/or probation at

the time of reinstatement; and imposing costs of investigation

and prosecution.

DONE AND ENTERED this 6 th da y of February , 2018 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6 th day of February , 2018 .

ENDNOTE S

1/ The RespondentÓs last name is Utegg. It was misspelled in the

Administrative Compl aint and almost all subsequent filings by the

Petitioner . The caption is amended to reflect the correct last

name.

2 / The statutory citations are to the 2017 codification of the

Florida Statutes.

3 / All rule citations are to the rules that were in eff ect in

2017.

COPIES FURNISHED:

Kristen M. Summers, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Francoise Gloria Hector Utegg , C.N.A.

7007 Belroi Street

Orlando, Florida 3 2818

Lindsey H. Frost, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 day s 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.