18-002802PL Department Of Health, Board Of Nursing vs. Jacqueline Jean, C.N.A. Status: Closed Recommended Order on Wednesday, January 30, 2019.

Summary: The Department failed to prove, by clear and convincing evidence, that Respondent committed "unprofessional conduct."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 18 - 2802PL

JACQUELINE JEAN, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hea ring in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2018), 1/ on November 6, 2018, by

video teleconference sites in Tallahassee and Sebastian,

Florida.

APPEARANCES

For Petitioner: Lindsey H. Frost, Esquire

Adam David Gonzalez Wright, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahas see, Florida 32399

For Respondent: Jacqueline Jean, pro se

1191 Saturn Street

Palm Bay, Florida 33807

STATEMENT OF THE ISSUE

The issue in this matter is whether the Department of

Health should discipline RespondentÓs certified nursing

assistant license.

PRELIMINARY STATEMENT

On March 8, 2018, Petitioner, Department of Health, Board

of Nursing (the ÐDepartmentÑ), issued an Administrative

Complaint notifying Respondent, Jacqueline Jean (ÐRespondentÑ),

that the Departmen t intended to discipline her for alleged

misconduct that occurred on or about January 16, 2018. The

Department seeks to sanction Respondent for committing

unprofessional conduct in violation of section 464.018(1)(h),

Florida Statutes, and Florida Administ rative Code Rule 64B9 -

8.005(13).

Respondent timely requested an administrative hearing

challenging the DepartmentÓs action. On May 31, 2018, the

Department referred the matter to the Division of Administrative

Hearings (ÐDOAHÑ) and requested assignment to an Administrative

Law Judge (ÐALJÑ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on November 6, 2018. 2/ The

Department presented the testimony of D.D. 3/ Department Exhibits

1 and 2 were admitted into evidence. Respondent t estified on

her own behalf. Respondent did not present any exhibits.

A one - volume Transcript of the final hearing was filed with

DOAH on December 4, 2018. At the close of the hearing, the

parties were advised of a ten - day timeframe following receipt of

the hearing transcript at DOAH to file post - hearing submittals.

The Department filed a Proposed Recommended Order, which was

duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulat ing the practice of nursing assistance in Florida. See

§ 20.43 and chs. 456 and 464, Fla. Stat.

2. Respondent is a certified nursing assistant (ÐCNAÑ) in

the State of Florida, having been issued certification number

CNA 16962.

3. The Department seeks to sanction Respondent based on an

incident that occurred on January 16, 2018. The DepartmentÓs

Administrative Complaint specifically alleges that ÐRespondent

struck Patient J.H. at least one time on Patient J.H.Ós head.Ñ

4. The Department asserts that R espondent violated section

464.018(1)(h) by committing Ðunprofessional conductÑ as defined

by a rule of the Board of Nursing. Rule 64B9 - 8.005(13) defines

Ðunprofessional conductÑ to include using force against a patient

or striking a patient. Section 464 .204 authorizes the Department

to discipline Respondent up to and including permanent revocation

or suspension of her assistant nursing certificate.

5. On the date of the incident, Respondent was working as a

CNA at Avante, a rehabilitation center locat ed in Melbourne,

Florida.

6. At that time, J.H. was a patient on hospice care at

Avante. J.H. was staying in a semi - private room with two beds.

J.H.Ós roommate was D.D.

7. At the final hearing, the Department represented that

J.H. is mentally incapac itated. J.H.Ós records from Avante

indicate that she suffers from a variety of ailments which have

resulted in an altered mental status, impaired ability to

communicate, and impaired ability to control sporadic movements

of her limbs. (Both D.D. and Resp ondent testified that J.H. had

difficulty speaking.) Therefore, she is not able to testify

about the incident.

8. D.D., however, was present in the room on January 16,

2018. D.D. testified at the final hearing about what she

observed between Responden t and J.H. on the evening of

January 16, 2018.

9. Initially, D.D. explained that the beds in the room she

shared with J.H. were positioned side - by - side, about four - to - six

feet apart. The beds were also separated by a privacy curtain.

A sink was located on the wall opposite the beds. Above the sink

was a mirror.

10. When the encounter between Respondent and J.H.

occurred, D.D. was sitting at the sink facing the mirror.

Respondent was tending to J.H. in her bed. At some point, D.D.

heard a sound com ing from J.H.Ós bed. When she turned to look,

D.D. saw that J.H. seemed annoyed, and RespondentÓs glasses were

askew on top of her head. Respondent then left the room.

11. About an hour later, after D.D. had returned to her

bed, D.D. stated that Respon dent reentered the room. Respondent

walked over to J.H. who was lying in her bed. D.D. testified

that she then heard Respondent say, ÐDonÓt you ever hit me

again.Ñ D.D. then saw Respondent hit J.H. twice on her forehead

with her balled - up fist. D.D. di d not see J.H. move or react

after Respondent struck her.

12. At the final hearing, D.D. disclosed that she did not

directly observe the incident because she was sitting in her bed,

and the privacy curtain obstructed her line of sight. Instead,

D.D. reve aled that she watched RespondentÓs actions through the

mirror over the sink. D.D. commented, however, that when she sat

up in her bed, she had a clear view through the mirror to J.H.Ós

bed. D.D. exhorted that she had no difficulty seeing Respondent

hit J .H.

13. D.D. was astounded by what she saw. She had no way of

notifying anyone of the incident that night. The next morning,

however, D.D. promptly reported the incident to her physical

therapist.

14. No evidence indicates that J.H. suffered any inj uries

from the encounter.

15. At the final hearing, Respondent adamantly denied

hitting J.H. Respondent further denied that she has ever abused

a patient in her care or been accused of hitting a patient.

Respondent asserted that she did not do anything wrong involving,

or use any force against, J.H.

16. Respondent stated that she has held a CNA license for

over 20 years. She has worked at Avante since 2007.

17. Respondent explained that when she approached J.H. in

her bed on the evening of January 16, 2018, she discovered that

J.H. had wet herself. Therefore, Respondent proceeded to change

her. In that process, J.H. knocked RespondentÓs glasses off her

head. The glasses fell onto the bed. Respondent then reached

down, grabbed her glasses, and re placed them on her face. She

then finished changing J.H. and left the room.

18. At the final hearing, Respondent claimed that D.D.Ós

statement is false. Respondent declared that D.D. is confused

about the incident and, maybe, does not care for Responden t.

Respondent also asserted that, because she was sitting in her

bed, D.D. could not accurately see what happened when she changed

J.H.

19. Following the incident, Avante terminated RespondentÓs

employment.

20. Based on the competent substantial evidenc e presented

at the final hearing, the clear and convincing evidence in the

record does not establish that Respondent hit J.H. on January 16,

2018. Accordingly, the Department failed to meet its burden of

proving that Respondent committed Ðunprofessional c onduct,Ñ which

would support discipline under section 464.204, Florida Statutes.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 12 0.57(1).

22. The Department charges Respondent with committing

Ðunprofessional conductÑ as defined by Board of Nursing rules.

See § 464.018(1)(h), Fla. Stat. Board of Nursing rule 64B9 -

8.005(13) defines Ðunprofessional conductÑ to include:

Using force a gainst a patient, striking a

patient, or throwing objects at a patient.

The Department alleges that Respondent violated section

464.018(1)(h) and rule 64B9 - 8.005(13) by intentionally hitting

J.H. on the head.

23. For violations of section 464.018(1)(h) a nd rule 64B9 -

8.005(13), section 464.204 authorizes the Board of Nursing to

discipline a CNA up to and including permanent revocation or

suspension of a nursing assistant certificate.

24. The DepartmentÓs action to discipline Respondent is

penal in natur e. Accordingly, the Department bears the burden

of proving the grounds for disciplinary action by clear and

convincing evidence. DepÓt of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996); see also Fla. DepÓt of Child. & Fams. v. Davis Fam. Day

Care Home , 160 So. 3d 854, 856 (Fla. 2015).

25. Clear and convincing evidence is a heightened standard

that Ðrequires more proof than a Òpreponderance of the evidenceÓ

but less than Òbeyond and to the exclusion o f a reasonable

doubt.ÓÑ Clear and convincing evidence is defined as an

intermediate burden of proof that:

requires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must b e 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 al legations sought to be

established.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73

(Fla. 2014)(quoting 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 c onflict . . . it seems to preclude

evidence that is ambiguous.Ñ Westinghouse Elec. Corp. v. Shuler

Bros. , 590 So. 2d 986, 988 (Fla. 1991).

26. Further, it is a well - established rule that Ðpenal

statutes . . . are construed in favor of the licensee and ag ainst

the regulatory authority.Ñ Djokic v. DepÓt of Bus. & ProfÓl

Reg., Div. of Real Estate , 875 So. 2d 693, 695 (Fla. 4th DCA

2004); see also Munch v. DepÓt of ProfÓl Reg., Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992)(Disciplinary

statu tes and rules Ðmust be construed strictly, in favor of the

one against whom the penalty would be imposed.Ñ).

27. The competent substantial evidence in the record does

not prove, by clear and convincing evidence, that Respondent

committed Ðunprofessional conductÑ by using force against or

striking J.H. The DepartmentÓs case rests solely on the

testimony of D.D. Without credible evidence corroborating D.D.Ós

version of events, the DepartmentÓs evidence at the final hearing

was not sufficiently persuasive to reach the level of clear and

convincing.

28. D.D. testified with confidence and conviction.

However, Respondent refuted D.D.Ós testimony with equal

conviction and believability. In addition, the undersigned finds

certain ambiguities surrounding the incident that create some

ÐhesitancyÑ in concluding that Respondent hit J.H. in the head.

First, D.D. did not have a direct view of RespondentÓs

interaction with J.H. She relied upon what she perceived through

a reflection in a mirror from the angle at which she was sitting

in her bed. Second, no evidence establishes that J.H. suffered

any injuries from the encounter. Consequently, the question

remains whether D.D. observed Respondent actually Ðusing forceÑ

or ÐstrikingÑ J.H. (Perhaps D.D. glimpsed so me other, less

physical, contact that occurred when Respondent changed J.H.)

Finally, the Department did not offer testimony from the victim

or any other Avante employee or state investigator that might

have corroborated D.D.Ós account. 4/

29. Conversely, during her testimony, Respondent adamantly

denied assaulting J.H., as she has consistently maintained since

the incident. No competent substantial evidence presented at the

final hearing effectively challenged RespondentÓs credibility.

30. Consequently, the testimony and evidence presented at

the final hearing does not establish, by clear and convincing

evidence, that Respondent Ðstruck Patient J.H. at least one time

on Patient J.H.Ós headÑ on January 16, 2018. Therefore, the

Department did not meet its burden of proving, by clear and

convincing evidence, that Respondent committed unprofessional

conduct involving a patient in her care.

31. In sum, the competent substantial evidence in the

record does not establish that Respondent violated section

464. 018(1)(h) and rule 64B9 - 8.005(13). According ly , the

Department did not meet its burden of proof in order to sanction

Respondent under section 464.204.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that th e Department of Health , Board of

Nursing enter a final order dismissing the Administrative

Complaint against Respondent, Jacqueline Jean.

DONE AND ENTERED this 3 0th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Div ision of Administrative Hearings

this 3 0th day of January , 2019 .

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

2018 codification of the Florida Statutes.

2/ This matter was initially scheduled for a final hearing on

August 8, 2018. Following the DepartmentÓs motion, the final

hearing was continued to November 6, 2018, on which date this

matter was heard.

3/ D.D. and J.H. are patients at a licensed facility in Florida.

Accordingly, their confidentiality is maintained in t his

administrative proceeding. See §§ 395.3025 and 456.057, Fla.

Stat.

4/ In its Proposed Recommended Order, the Department points to

its Investigative Report, dated January 31, 2018 (PetitionerÓs

Exhibit Ð1Ñ), as supplemental evidence supporting the al legation

that Respondent hit J.H. T he Department contends that the out -

of - court statements contained within the Investigative Report

should be used as a basis for the findings of fact in this

matter.

The Investigative Report is replete with hearsay (in cluding

double and triple hearsay). See § 90.801(1)(c), Fla. Stat.

Under the Administrative Procedure Act, Ð[h]earsay 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.Ñ £ 120.57(1)(c), Fla. Stat. The Department did not

offer any exceptions to the hearsay rule which would allow the

admission of the unsworn, out - of - court statements contained in

its Investigative Report into evidence at the final hearing.

Consequently, the undersigned makes no findings of fact based

solely on the Investigative Report.

Further, the undersigned finds the hearsay evidence in the

Investigative Report simply too unreliab le to buttress the

DepartmentÓs efforts to prove, by clear and convincing evidence,

that Respondent hit J.H. Specifically,

a. The social workerÓs report: A social worker who

interviewed D.D. the day after the incident included ÐfindingsÑ

in her writt en report that do not appear to be based on

competent substantial evidence. For example, the social worker

reported that ÐJ.H.Ós arms were flailing when [Respondent] was

providing care.Ñ D.D. and Respondent were the only other

individuals present during the encounter. However, no evidence

or testimony records D.D. describing J.H.Ós ÐflailingÑ behavior

either to Avante, the Department, the social worker, or during

the final hearing. The social worker also wrote in J.H.Ós

progress notes on the day after t he incident that J.H. was

Ðunable to provide [a] statement due to impaired cognition.Ñ

Consequently, because the undersigned finds that the social

workerÓs (apparently embellished) report is not sufficiently

credible on its face, her narrative description of the event

cannot serve as a basis for a finding of fact in this matter.

b. The police report:

1) A Melbourne police officer interviewed J.H. on

January 24, 2018, eight days after the incident. The police

officer wrote that:

I made contact with [J.H.]. She advised me

that she remembered the incident. She

advised that the nurse hit her on her head

twice with her hand. She advised that she

was being mean not in a playful manor [sic].

Based on the undisputed evidence that J.H.Ós ability to

commu nicate in January 2018 was extremely impaired, the

undersigned is skeptical that J.H. could have described the

incident to the police officer in any meaningful way.

2) Initially, D.D. testified at the final hearing that

J.H. had Ðdifficulty speaking.Ñ F urther, throughout the

Investigative Report, J.H. was noted to suffer from a number of

ailments that affected her ability to effectively communicate,

including a cerebral infarction, a psychiatric history of

bipolar disorder, a frontal lobe injury, and an altered mental

status. J.H. was also described as Ðconfused and has speech

difficultiesÑ; ÐJ.H. cannot hold a full conversation and her

communication is garbledÑ; J.H. has a Ðdifficult time expressing

herself. ItÓs hard to understand herÑ; J.H. Ðcannot s ay a full

sentence, does not make senseÑ; J.H. Ðcan say 2 - 3 words at a

time, but they are ÒjargledÓ and do not make senseÑ; J.H.

suffers from aphasia and Ðmixes up words and cannot think of

words. She yells and says yes when she means no.Ñ In light of

t hese remarks, the undersigned determines that the police

officerÓs report, based on what other individuals told him about

the incident, is not reliable enough to be used as a basis for a

finding of fact.

c. J.H.Ós aunt:

1) The Investigative Report in cludes notes from a

telephone conversation the DepartmentÓs investigator had with

J.H.Ós aunt on January 30, 2018. J.H.Ós aunt disclosed that she

visited J.H. the day after the incident. During her visit,

J.H.Ós aunt asked J.H. if someone hit her. J.H.Ó s aunt relayed

to the investigator that J.H. nodded Ðyes.Ñ

2) As with the other unsworn, out - of - court statements, the

undersigned finds that this double and triple hearsay account of

the incident does not provide reliable enough evidence to prove

that Respondent hit J.H. ( See also the social workerÓs

observation on January 17, 2018, that J.H. was Ðunable to

provide [a] statement due to impaired cognition.Ñ)

Consequently, the DepartmentÓs Investigative Report, on its

face, lacks the indicia of reliab ility necessary to support the

DepartmentÓs allegations. Therefore, the factual findings and

conclusions in this matter rest solely on the testimony produced

at the final hearing.

COPIES FURNISHED:

Lindsey H. Frost, Esquire

Department of Health

4052 Ba ld Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Jacqueline Jean

1191 Saturn Street

Palm Bay, Florida 32909

Adam David Gonzalez Wright, Esquire

Florida Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServ ed)

Joe Baker, Jr. Executive Director

Florida Department of Health

4052 Bald Cypress Way , Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Jody Bryant Newman, EdD, EdS

Florida Department of Health

4052 Bald Cypress Way , Bin D - 02

Tallahassee, Florida 32399 - 3252

Louise Wilhite - St Laurent, Interim General Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.