22-000854PL Department Of Health, Board Of Nursing vs. Jessica R. Volpe, R.N. Status: Closed Recommended Order on Friday, September 23, 2022.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated prohibition on sexual misconduct by emailing sexual photos of herself to a patient.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

N URSING ,

Petitioner ,

vs. Case No. 22 - 0853PL

J ESSICA R. V OLPE , A.P.R.N. ,

Respondent.

/

D EPARTMENT OF H EALTH , B OARD OF

N URSING ,

Petitioner,

vs. Case No. 22 - 0854PL

J ESSICA R. V OLPE , R.N. ,

Respondent.

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conduct ed in th ese case s on

June 28, 2022, in Jacksonville, Florida, and on August 18, 2022, via Zoom

teleconference, before Lawrence P. Stevenson, a duly - designated

Administrative Law Judge (ÑALJÒ) of the Division of Administrative Hearings

(ÑDOAHÒ).

A PPEARANCE S

For Petitioner: Philip Aaron Crawford, Esquire

Shannon Nelson, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Megan M. Blancho, Esquire

The Law Office of Megan Blancho, P.A.

1512 East John S ims Parkway, Suite 378

Niceville, Florida 32578

S TATEMENT OF T HE I SSUE S

The issues are whether Respondent committed the violations alleged in

the Administrative Complaints (ÑAdministrative ComplaintsÒ) and, if so,

what is the appropriate disciplinary act ion to be taken against her licenses to

practice advanced practice registered nursing and/or registered nursing.

P RELIMINARY S TATEMENT

On February 1, 2021, Petitioner, Department of Health, Board of Nursing

(ÑDepartmentÒ), filed substantively identical Ad ministrative Complaints

seeking to impose discipline on the licenses of Respondent, Jessica R. Volpe,

A.P.R.N., R.N. (ÑRespondentÒ or ÑMs. VolpeÒ). The Administrative Complaints

alleged that Respondent violated section 456.072(1)(v), Florida Statutes

(2020 ), 1 by engaging , or attempting to engage , in sexual misconduct as

defined and prohibited in section 456.063(1). The specific factual allegation is

that Ms. Volpe emailed photos of herself to a patient Ñwhich were sexual in

nature, including of her breasts and/or buttocks.Ò

Respondent timely contested the allegations. On March 18, 2022, the

Department referred the cases to DOAH for the assignment of an ALJ and

the conduct of a formal hearing. By Order dated March 22, 2022, the cases

were consolidated for he aring. The final hearing was initially scheduled for

May 25, 2022.

After one continuance, the final hearing was convened on June 28, 2022.

The unexpected unavailability of an essential witness necessitated that the

1 Unless otherwise noted, references to the Fl orida Statutes are to the 2020 edition.

hearing be continued and reconvened on A ugust 18, 2022, on which date it

was completed. At the hearing, the Department presented the testimony of

Ms. Volpe; Patient B.F.; and, via deposition, the expert testimony of Barbara

Thomason, A.P.R.N. The DepartmentÔs Exhibits A, B, D through F, I

throug h M, and O were admitted into evidence.

Respondent testified on her own behalf and presented the testimony of

Taylor Daniels, her former nursing assistant. RespondentÔs Exhibits 1

through 6 were admitted into evidence.

The two - volume Transcript of the fi nal hearing was filed with DOAH on

August 29, 2022. Both parties timely filed their Proposed Recommended

Orders on September 8, 2022. The Proposed Recommended Orders have been

thoroughly considered in the preparation of this Recommended Order.

F INDINGS O F F ACT

Based on the Amended Joint Pre - hearing Stipulation, the evidence

adduced at hearing, and the record as a whole, the following Findings of Fact

are made:

1. The Department, through the Board of Nursing (ÑBoardÒ), is the entity

charged with establishi ng or modifying standards of practice for advanced

practice registered nurses (ÑAPRNÒ) and registered nurses (ÑRNÒ) and with

the licensure and discipline of APRNs and RNs. C h. 464, p t. I, Fla. Stat.

2. At all times material to the allegations in the Admini strative

Complaints, Ms. Volpe was a licensed APRN in the state of Florida, having

been issued license number APRN 9202467 in 2017. She was issued RN

license number RN 9202467 in 2003. Prior to this proceeding, Ms. Volpe had

never been disciplined by the B oard. At the time of the hearing, Ms. Volpe

was 43 years old.

3. At all times material to the allegations in the Administrative

Complaints, Ms. Volpe practiced at the Family Medical CentersÔ Argyle

(ÑFMC ArgyleÒ) location at 7855 Argyle Forest Boulevard, S uite 601,

Jacksonville, Florida. She practiced as a family APRN under the supervision

of James Fetchero, M.D. The parties stipulated that Ms. Volpe worked at

FMC Argyle from August 2018 until on or about August 19, 2020.

4. Patient B.F., a male who was 43 years old at the time of the hearing,

was a patient at FMC Argyle. The medical records indicate that his first visit

was on January 25, 2019. B.F. had just moved to Florida from Texas and

requested a referral for pain management related to back surgery he had

undergone three months previously. He presented at FMC Argyle again on

April 5, 2019, with complaints of anxiety and high blood pressure. B.F.Ôs back

pain (and the pharmaceutical management thereof), anxiety, and high blood

pressure were continuing con cerns throughout his treatment at FMC Argyle.

5. On March 15, 2020, B.F. went to the emergency room at Orange Park

Medical Center complaining of abdominal pain and nausea possibly related to

recent heavy lifting. After extensive testing, the emergency roo m physician

recorded an impression of constipation and non - obstructive kidney stones.

The examination also recorded a ventral hernia, for which B.F. received a

referral to a surgeon.

6. On advice of the emergency room physician, B.F. made a follow - up

appo intment to visit his primary care physician, Dr. Fetchero. On March 16,

2020, B.F. went to FMC Argyle for his appointment and was seen by

Ms. Volpe because Dr. Fetchero was not available. This was the first meeting

between B.F. and Ms. Volpe.

7. The medica l record s show that Ms. Volpe saw B.F. again on June 15,

2020. His chief complaint was pain in his right jaw. His blood pressure was

extremely high and Ms. VolpeÔs notes indicate B.F. had gone a month without

his blood pressure medications. He was referred to a cardiologist and

prescribed hypertension medications.

8. The medical record s contain notes of a July 16, 2020 visit by B.F. to

FMC Argyle at which he was seen by Ms. Volpe. The recorded reason for this

visit was Ñanxiety flaring up [due to] home issu es.Ò Ms. Volpe recorded the

following in B.F.Ôs general history: ÑAssociated features include increased

stress at home due to breakdown of relationship, poor financial situation, and

inability to leave current living situation.Ò B.F. stated that a chief st ressor in

his life was the worsening state of his marriage. 2 Ms. VolpeÔs treatment notes

state that she counseled B.F. Ñto remove himself from current living situation

asap.Ò

9. The medical record s contain a letter on FMC ArgyleÔs stationery, dated

July 2 0, 2020, stating that Ms. Volpe saw B.F. in her office that day and that

B.F. would be unable to return to work until the following day. The medical

record s signed by Ms. Volpe states that the reason for the appointment was

Ñnurse visit.Ò B.F.Ôs vital sign s were taken. His blood pressure was still high

but lower than it had been on his July 16, 2020 visit. No other procedures,

diagnoses, or instructions to the patient were recorded.

10. On July 27, 2020, Ms. Volpe saw B.F. for the final time at FMC

Argyle. This was not an appointment but an emergency presentation. B.F.

had received a bug bite of some sort while doing yardwork and feared he

might be having an allergic reaction. Ms. VolpeÔs examination revealed no

acute symptoms, such as airway compromise, to indicate an anaphylactic

reaction. B.F. was given steroid injections and instructed to take Benadryl.

11. The record evidence established, and Ms. Volpe did not dispute, that

she emailed two photographs of herself to B.F. One was of Ms. Volpe facing

the ca mera with her bare breasts showing. The second was of Ms. VolpeÔs

buttocks. Ms. Volpe was wearing underpants that partially covered her

buttocks.

2 B.F. has since gone through a divorce. At the hearing, it was established that his then - wife

had also been seen as a patient by Ms. Volpe at FMC Argyle prior to his first encounter with

Ms. Volpe. It was also esta blished that B.F.Ôs wife sent the photos of Ms. Volpe to the

Department.

12. The record evidence established, and Ms. Volpe did not dispute, that

she and B.F. engaged in a brief roman tic relationship that included sexual

intercourse.

13. The factual dispute in this case is over the circumstances and timing

of the relationship between Ms. Volpe and B.F. Ms. Volpe contends that the

relationship with B.F. did not commence while B.F. was a patient in her care.

14. Ms. Volpe testified that B.F. had Ñhit onÒ her during the July 16, 2020

visit but that she had turned him down flat because she was in a

relationship. During that visit, B.F. told Ms. Volpe that his marriage was

over and he was g etting a divorce.

15. On or about July 24, 2020, Ms. Volpe broke up with her longtime live -

in boyfriend. She testified that she was more amenable to B.F.Ôs

blandishments on his July 27, 2020 visit.

16. Ms. Volpe testified that after the July 27, 2020 visit , which occurred

late in the day, B.F. stopped her in the parking lot as she was leaving the

office. He flattered her, told her that she was a good listener, that she was

pretty, and that he would like to spend time with her. Ms. Volpe testified that

she c ould not recall her exact response but that she did not turn him down.

She testified that they talked about their children and their work situations.

She stated that the romantic relationship began a few days later.

17. Ms. Volpe had given her 60 - day noti ce of resignation from FMC Argyle

in June 2020. Ms. Volpe testified that July 27, 2020 , was at Ñthe very end of

my employment there.Ò As noted above, the parties stipulated that Ms. Volpe

worked at FMC Argyle until on or about August 19, 2020.

18. Ms. Volp e was uncertain as to the date her relationship with B.F.

became romantic, but stated that it was definitely after the last time she saw

him as a patient on July 27, 2020. She stated that they dated only for a few

weeks. The relationship was fraught and em otional. They broke up a time or

two before their final separation on September 17, 2020.

19. B.F. testified that his sexual relationship with Ms. Volpe commenced

within ten days of their first meeting. He was certain they had already had

sex by the t ime he came in for the bug bite on July 27, 2020. B.F. testified

that he discussed his marriage with Ms. Volpe on his first visit with her. He

told Ms. Volpe that he needed something for anxiety because his wife had

another man.

20. B.F. stated that after his first visit, Ms. Volpe texted him about a

prescription that she needed permission to fill from B.F.Ôs pain management

physician. B.F. stated that the text was from ÑJessÒ and he was confused at

first as to who was texting him because he had never befo re received a direct

text from a doctor or APRN.

21. B.F. stated that within a few days of this text, Ms. Volpe sent him the

photos of herself baring her breasts and buttocks. B.F. then began seeing her

every day from 5:30 to 6:30 p.m., after she finished work at FMC Argyle.

They would talk and Ñmake outÒ in one of their vehicles. B.F. testified that on

the day he saw Ms. Volpe for the bug bite, she offered him oral sex instead of

treatment.

22. B.F.Ôs version of the circumstances of his relationship wit h Ms. Volpe

is not entirely credible. The undersigned finds that B.F. must, at best, have

elided much of what occurred between them prior to her sending him the

nude photos. It does not make sense that Ms. Volpe would send such photos

out of the blue to a patient she had just met. B.F. was obviously not a mere

passive recipient of Ms. VolpeÔs unsought sexual advances and showed no

indications of having been traumatized by the experience.

23. However, B.F.Ôs chronology of events is more credible than Ms. Vo lpeÔs.

His version is supported by the fact that his cell phone information indicated

that he received the photos of Ms. Volpe no later than July 23, 2020. This fact

belies Ms. VolpeÔs insistence that nothing untoward occurred before her last

treatment of B.F. on July 27, 2020.

24. Ms. Volpe tried several tacks to support her insistence that the

romantic relationship with B.F. did not commence while he was her patient.

She argued that B.F. was never really her patient, that she only stepped in to

pinch - hit for Dr. Fetchero, who was in fact B.F.Ôs primary healthcare

provider. This argument appears to be trying to distinguish Ms. VolpeÔs

position as a family practice APRN working under a physicianÔs supervision

from an autonomous APRN registered pursuant to se ction 464.0123, Florida

Statutes, who practices independently and has her own patients.

25. Ms. VolpeÔs argument is not persuasive. Section 456.063(1) prohibits

sexual misconduct in the practice of a healthcare profession, which means in

relevant part , Ñ vi olation of the professional relationship through which the

healthcare practitioner uses such relationship to engage or attempt to engage

the patient or client È or to induce or attempt to induce such person to

engage in, verbal or physical sexual activity outside the scope of the

professional practice of such health care profession.Ò No distinction is made

between healthcare practitioners who treat patients under the supervision of

another practitioner and those practitioners who operate independently.

Ms. Volpe used information about the parlous state of B.F.Ôs marriage,

gleaned through the nurse - patient relationship, to induce B.F. into a sexual

relationship.

26. The undersigned is cognizant of the fact that B.F. required very little

inducement to commence the sexual relationship with Ms. Volpe. However,

even if Ms. VolpeÔs version of events is entirely credited and it is found that

B.F. was the avid pursuer in the relationship, it is Ms. Volpe who had the

professional obligation to refrain from a sexual re lationship in the situation

presented. In the final analysis, there is simply no way to characterize

Ms. VolpeÔs sending photos of her bare breasts and buttocks to a patient as

anything other than an inducement to engage in a sexual relationship,

regardles s of what the patient said to her before she sent them. 3

27. Ms. Volpe argued that this situation was really no different than a

medical professionalÔs treating her spouse or live - in partner. Ms. Volpe

argued that in those cases, as in this one, there is a sexual relationship

between the professional and the patient and she could see no reason to treat

her situation differently. Ms. Volpe rightly points out that there are ethical

concerns when a physician or nurse treats a family member, but fails to

ackno wledge the distinction present in her case: section 456.063(1) is not a

general prohibition on sexual relations between practitioner and patient but

a prohibition on using the professional relationship to induce or engage in

sexual activity with a patient. While other ethical considerations would

apply, section 456.063(1) would not where the romantic or sexual relationship

was established before the nurse - patient relationship commenced.

28. Finally, Ms. Volpe argued that she genuinely believed that B.F. wa s no

longer her patient at the time the romantic relationship commenced. She was

at the very end of her notice period with FMC Argyle and had no reason to

believe she would ever see B.F. as a patient again. She just happened to be

the only person available to see B.F. when he appeared without an

appointment on July 27, 2020.

29. There is no merit to this argument. Ms. Volpe is again attempting to

make fine distinctions as to which patients of FMC Argyle were and were not

her patients, the latter apparently being fair game for romantic overtures.

B.F. was a patient of FMC Argyle and Ms. Volpe was an APRN working for

FMC Argyle at the time she sent the suggestive photos to B.F. Ms. Volpe

knew that B.F. was a patient of FMC Argyle at the time she sent the photo s.

She had personally treated B.F. as of July 23, 2020, and had no way of

3 The Department offered expert testimony on this point, which was admitted over

Ms. VolpeÔs objection. In retrospect, the undersigned finds the expert testimony to have been

redundan t because the ultimate finding as to the purpose of the photos is glaringly obvious.

knowing that she would not treat him again before her employment at FMC

Argyle concluded in August 2020. She testified that she had sex with B.F. in

early August 2020, when she was still employed by FMC Argyle and B.F. was

still a patient there.

30. The specific factual allegations of the Administrative Complaints are

that on or about July 23, 2020, Ms. Volpe Ñemailed patient B.F. photos of

herself which were sexual in nature, incl uding of her breasts and/or

buttocks,Ò and that Ms. Volpe again treated B.F. at FMC Argyle on or about

July 27, 2020. Based on all the evidence, it is found that the Department

proved these factual allegations by clear and convincing evidence and thereby

p roved that Ms. Volpe violated section 456.072(1)(v) by engaging or

attempting to engage in sexual misconduct as defined and prohibited in

section 456.063(1).

31. At times during her testimony, Ms. Volpe appeared abashed and

embarrassed by what she had don e. She conceded that the relationship with

B.F. was a mistake that she would never make again. She was fearful of

losing her licenses, which are her only source of income and for which she

still owes $40,000 in student loans. However, at other times , she w as oddly

defensive of her actions and argued that somehow the plain statutory

prohibition on sexual misconduct should not apply to her.

32. Ms. Volpe testified as to the emotional turmoil she was experiencing at

the time of these events. Her long - term rel ationship was falling apart and

because of that she felt a kinship to B.F., who was undergoing his own

marital problems. She portrayed herself as having fallen prey to B.F.Ôs

smooth - talking charm at a time she was extremely vulnerable.

33. By every indica tion, Ms. Volpe is an excellent APRN. Her medical

assistant at FMC Argyle, Taylor Daniels, testified that Ms. VolpeÔs patient

care was Ñamazing.Ò Ms. Daniels recalled B.F. as a patient and saw nothing

unusual occur between him and Ms. Volpe. Ms. Volpe subm itted numerous

statements from former colleagues, both nurses and physicians, attesting to

her skill, dedication, and consideration as a nurse. She conceded that the

authors of these statements were not aware of the nature of the charges

against her in thi s proceeding.

34. Dmitriy Model, M.D., is the vice president of Avecina Medical,

Ms. VolpeÔs employer since March 2020. 4 Ms. Volpe testified that Dr. Model is

aware of the charges against her in these cases. Dr. Model submitted a letter

that glowingly desc ribed her as a Ñreliable, compassionate, and clinically

excellent provider.Ò She goes Ñabove and beyond in her patient care.Ò Dr.

Model described her as a Ñmodel employeeÒ whose Ñprofessional ethics are

above reproachÒ and who is Ñtrusted by myself and our management team

without reservation.Ò

C ONCLUSIONS OF L AW

35. DOAH has jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

36. The Department, through the Board, is the entity charged with

establ ishing or modifying standards of practice for nurses and with the

licensure and discipline of nurses. §§ 464.004 and 464.018, Fla. Stat.

37. This is a proceeding in which Petitioner seeks to discipline Ms. VolpeÔs

licenses to practice as an APRN and RN. Be cause disciplinary proceedings

are considered to be penal in nature, Petitioner is required to prove the

allegations in the Administrative Complaints by clear and convincing

evidence. DepÔt of Banking & Fin. v. Osborne Stern & Co., 60 So. 2d 932 (Fla.

1996 ); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

38. Clear and convincing evidence Ñrequires more proof than a

Ópreponderance of the evidenceÔ but less than Óbeyond and to the exclusion of a

4 Ms. Volpe began working part time at Avecina Medical while she was still working full time

at FMC Argyle. When she left FMC Argyle in August 2020, she started working f ull time at

Avecina Medical.

reasonable doubt.ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fl a. 1997). The

Florida Supreme Court further enunciated the standard:

This intermediate level of proof entails both a

qualitative and quantitative standard. The

evidence must be credible; the memories of the

witnesses must be clear and without confusion; an d

the sum total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctl y

remembered; the testimony must be precise and

lacking in confusion as to the facts in issue. The

evidence must be of such a 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983)). ÑAlthough this standard of proof may be

met where the evidence is in conflict, it seems to preclude evi dence that is

ambiguous.Ò Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 989 (Fla.

1st DCA 1991).

39. Section 456.072 is penal in nature and must be strictly construed, with

any ambiguity construed against Petitioner. Penal statutes must be

construed in terms of their literal meaning, and words used by the

Legislature may not be expanded to broaden the application of such statutes.

Beckett v. DepÔt of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Latham

v. Fla. CommÔn on Ethics, 694 So. 2d 83 ( Fla. 1st DCA 1997).

40. The allegations set forth in the Administrative Complaint s are those

upon which this proceeding is predicated. Trevisani v. DepÔt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due process prohibits 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. OwnerÔs AssÔn v. DepÔt of Env Ô t Prot. , 824 So. 2d

208, 210 (Fla. 4th DCA 2002); Delk v. DepÔt of Pro . Reg ul . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992).

41. The Administrative Complaints seek to discipline Ms. Volpe on a

charge that she violated section 456.072(1)(v ), which provides:

(1) The following acts shall constitute grounds for

which the disciplinary actions specified in

subsection (2) may be taken:

* * *

(v) Engaging or attempting to engage in sexual

misconduct as defined and prohibited in

s. 456.063(1).

42. Section 456.063(1) provides:

(1) Sexual misconduct in the practice of a health

care profession means violation of the professional

relationship through which the health care

practitioner uses such relationship to engage or

attempt to engage the patient or client, or an

immediate family member, guardian, or

representative of the patient or client in, or to

induce or attempt to induce such person to engage

in, verbal or physical sexual activity outside the

scope of the professional practice of such health

care profession. Sexual misconduct in the practice

of a health care profession is prohibited.

43. The Administrative Complaints allege that Ms. Volpe engaged or

attempted to engage in sexual misconduct with patient B.F. by emailing him

photos of herself Ñwhich were sexual in nature, including of her breasts

and/or buttocks.Ò The Administrative Complaints allege that Ms. Volpe

treated B.F. before and after sending the photos to him.

44. The Department proved by clear and convincing evidence that

Ms. Volpe committed the acts alleged and that her actions constituted sexual

misconduct in violation of section 456.072(1)(v).

45. Section 464.018(2)(a) provides that the Board may enter an order

imposing any of the penalties in section 456.072(2) against any nurse who is

found guilty of violating section 456.072(1).

46. Section 456.079(1) requires boards within the DepartmentÔs

jurisdiction to adopt Ñdisciplinary guidelines applicable to each ground for

disciplinary action which may be imposed by the board.Ò Penalti es imposed

must be consistent with any disciplinary guidelines prescribed by rule. See

Parrot Heads, Inc. v. DepÔt of Bus. & Pro. Reg ul . , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999). In compliance with the statutory mandate, the Board

has adopted Florida Administrative Code R ule 64B9 - 8.006, which sets forth

disciplinary guidelines, range of penalties, and aggravating and mitigating

circumstances for violations of section 456.072.

47. Because the events in these cases occurred in 2020, the version of

rule 64B9 - 8.006 adopted on June 11, 2020, is applicable. 5 The specific

guidelines for violations of section 456.072(1)(v) are found at rule 64B9 -

8.006 (3)(u) of the rule. The minimum penalty for a first offense is a $250 fine,

suspension, and IPN evaluation. 6 T he maximum penalty for a first offense is

a $500 fine and suspension, or revocation.

48. Rule 64B9 - 8.006(5) permits the Board to deviate from the guidelines

upon a showing of aggravating or mitigating circumstances, which include ,

but are not limited to:

5 The rule was subsequently amended on February 10, 2022.

6 The Intervention Project for Nurses (ÑIPNÒ) is the BoardÔs impaired practitioner program

adopted pursuant to section 456.076. Section 456.076(1) defines ÑimpairmentÒ to mean Ñ a

potentially impairing health condition that is the result of the misuse or abuse of alcohol,

drugs, or both, or a mental or physical condition that could affect a practitionerÔs ability to

practice with skill and safety. Ò There was no evidence p resented that Ms. Volpe suffers from

an impairment. She has practiced with skill and distinction both before and after the episode

with B.F.

1 . The danger to the public.

2. Previous disciplinary action against the licensee

in this or any other jurisdiction.

3. The length of time the licensee has practiced.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or stop

violations, or refusal by the licensee to correct or

stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinar y proceedings.

49. There appears to be little danger to the public posed by Ms. VolpeÔs

continued licensure. It is extremely unlikely that she will repeat her mistake,

given the consequences she has already suffered and those recommended

here. This factor is neutral in the consideration of whether to deviate from

the guidelines.

50. There has been no previous disciplinary action against Ms. Volpe in

this or any other jurisdiction. This factor weighs in favor of mitigation.

51. Ms. Volpe has practiced as an RN since 2003 and as an APRN since

2017, with a clean disciplinary record and good job reviews. This factor

weighs in favor of mitigation.

52. The Ñactual damageÒ caused by the violation appears to have been

suffered mostly by Ms. Volpe herself. B.F. did not blame her for his

marriageÔs dissolution, which appeared to have been well underway when he

met Ms. Volpe. This factor is neutral in the consideration of whether to

deviate from the guidelines.

53. In mitigation of revocation, the undersigned recommend s a $500 fine

and a suspension of Ms. VolpeÔs APRN and RN licenses for one year. The

undersigned concludes that this penalty is appropriate considering the

underlying facts behind the violation and will have an adequate deterrent

effect on Ms. VolpeÔs futu re behavior. Revoking Ms. VolpeÔs license would be

draconian under all the circumstances. Prior to these cases, Ms. VolpeÔs

record as an APRN and RN was spotless. Her licenses are her sole source of

income and deprivation of that income for one year will b e sufficient to ensure

that she never makes a similar error.

54. As to rehabilitation efforts, Ms. VolpeÔs counsel suggested at the

hearing that Ms. Volpe would be willing to submit to IPN for a psychosexual

evaluation. As noted in footnote 7 above, the u ndersigned does not conclude

that Ms. Volpe suffers from an Ñimpairment , Ò as defined by section

456.076(1). She exercised staggeringly poor judgment by throwing herself

into an affair with a patient, but that poor judgment did not and should not

in the fut ure affect her ability to practice with skill and safety. This factor is

neutral in the consideration of whether to deviate from the guidelines.

55. The factor of licensee efforts to correct or stop violations is not

applicable and therefore neutral.

56. T he Ñcost of treatmentÒ factor is not applicable and therefore neutral.

57. Revocation would cause insuperable financial hardship to Ms. Volpe

and is a reason why the undersigned recommends the lesser penalty of a

$500 fine and one year suspension in mitiga tion of the revocation penalty. A

one year suspension will impose a significant financial burden, appropriate to

the violation she committed, without permanently depriving Ms. Volpe of her

livelihood and the public of her services as a skilled APRN.

58. Se ction 456.072(4) provides that, in addition to any other discipline

imposed for violation of a practice act, any board under the DepartmentÔs

jurisdiction shall assess costs related to the investigation and prosecution of

the case. The Board should therefo re also assess the costs of the

DepartmentÔs investigation and prosecution of Respondent in this matter.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health, Board of Nursing, is sue a

final order: finding that Respondent violated section 456.072(1)(v) by

engaging or attempting to engage in sexual misconduct as defined and

prohibited in section 456.063(1); imposing a fine of $500; suspending

RespondentÔs licenses for a period of on e year; and assessing the costs of the

DepartmentÔs investigation and prosecution of Respondent.

D ONE A ND E NTERED this 23rd day of September , 2022 , in Tallahassee,

Leon County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Pa rkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of September , 2022 .

C OPIES F URNISHED :

Megan M. Blancho, Esquire Philip Aaron Crawford, Esquire

(eServed) (eServed)

Shannon Nelson, Esquire Joe Baker, Jr., Executive Director

( eServed) (eServed)

Deborah McKeen, BS, CD - LPN John Wilson, General Counsel

Board Chair (eServed)

(Address of Record)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.