99-003597 Immacula Irma Saint-Fleur vs. Department Of Health, Board Of Nursing Status: Closed Recommended Order on Thursday, July 27, 2000.

Summary: Petitioner failed to submit evidence sufficient to demonstrate entitlement to licensure by endorsement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IMMACULA IRMA SAINT-FLEUR, )

)

Petitioner, )

)

vs. ) Case No. 99-3597

)

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

on May 31, 2000, in Tallahassee, Florida, before Administrative

Law Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Michael C. Gold, Esquire

Post Office Box 372

Tallahassee, Florida 32302

For Respondent: Edward A. Tellechea, Esquire

Office of the General Counsel

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's

application for licensure by endorsement should be approved or

denied.

PRELIMINARY STATEMENT

Following notification that the Board of Nursing ("Board")

intended to deny her application for licensure by endorsement,

the Petitioner requested an evidentiary hearing. In due course

the matter was referred to the Division of Administrative

Hearings, where it was assigned to an administrative law judge

and was scheduled for hearing. Following two continuances (both

requested by the Petitioner), a final hearing was conducted on

May 31, 2000. At the final hearing the Petitioner, through

counsel, 1 offered two exhibits. 2 The Petitioner did not call any

witnesses. The Respondent presented the testimony of one

witness (Ms. Mark K. Jacobsen, Director of Nursing Education for

the Board of Nursing), and offered one exhibit, which was

received in evidence. 3 At the conclusion of the hearing counsel

for both parties requested that they be allowed until June 30,

2000, within which to file their respective proposed recommended

orders. The request was granted.

On June 13, 2000, a one-volume Transcript of the final

hearing was filed with the Division of Administrative Hearings.

On June 29, 2000, the Respondent filed a Proposed Recommended

Order containing proposed findings of fact and conclusions of

law. 4 As of the date of this Recommended Order, the Petitioner

has not filed a proposed recommended order, or any other post-

hearing document.

FINDINGS OF FACT

1. In June of 1997, the Petitioner filed an application

for nursing licensure, by means of which she seeks to be

licensed as a registered nurse by endorsement. In support of

her application, the Petitioner submitted, or caused to be

submitted, evidence showing that she was licensed as a

registered nurse in Quebec, Canada, and that she had such

licensure status by passing an examination in 1976. The

examination she passed in 1976 was the examination administered

in French by the Ordre des Infirmieres et Infirmieres du Quebec

("OIIQ").

2. In 1976, the registered nurse licensure examination

given by, or required by, the Florida Board of Nursing was the

State Board Test Pool Examination, which was administered by the

National Council of State Boards of Nursing.

3. In addition to the licensure examination administered

by OIIQ, the Canadian Nurses Association Testing Service

("CNATS") has also offered a registered nurse licensure

examination in Canada for many years, including 1976. The

Florida Board of Nursing has determined that the CNATS

registered nurse licensure examinations administered from 1980

through 1995 are equivalent to the State Board Test Pool

Examinations administered by the National Council of State

Boards of Nursing. There has been no such determination for

CNATS examinations administered before 1980 or after 1995.

4. The evidence in this case is insufficient to determine

whether the registered nursing licensure examinations

administered in 1976 by either CNATS or OIIQ were substantially

equivalent to, or more stringent than, the State Board Test Pool

Examinations administered in 1976 by the National Council of

State Boards of Nursing. 5

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case. Sections 120.69, 120.57(1), and 120.60, Florida Statutes.

6. The Respondent is the state agency charged with

regulating the practice of nursing pursuant to Chapters 455 and

464, Florida Statutes.

7. In pertinent part, Section 464.009(1), Florida

Statutes, requires an applicant for licensure by endorsement to

demonstrate to the Board that he or she:

(b) Meets the qualifications for

licensure in s. 464.008 and has successfully

completed a state, regional, or national

examination which is substantially

equivalent to or more stringent than the

examination given by the department.

8. The minimum requirements necessary to show the

examination equivalence required by Section 464.009(1)(b),

Florida Statutes, are addressed in Rule 64B9-3.008(3), Florida

Administrative Code, which provides that to be equivalent to the

exam required by the Board, an examination must meet all five of

the following criteria:

(a) The examination is developed using

accepted psychometric procedures.

(b) The content and passing score of the

examination are substantially equivalent to

that of the National Council Licensure

Examination.

(c) The security of the examination is

maintained.

(d) At least one of the reliability

estimations for the examination is 0.7 or

higher.

(e) The examination is revised after each

administration to insure currency of

content.

9. The evidence in this case is insufficient to establish

that the OIIQ examination administered in 1976 met any of the

five criteria required by Rule 64B9-3.008(3)(a) through (e),

Florida Administrative Code. 6

10. In a case of this nature, the Petitioner bears the

burden of establishing her entitlement to the license she seeks.

Where, as here, the Petitioner fails to present sufficient

evidence to demonstrate such entitlement, the license must be

denied.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that the Board of Nursing

enter a final order denying the Petitioner's application for

licensure by endorsement.

DONE AND ENTERED this 27th day of July, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 27th day of July, 2000.

ENDNOTES

1/ At the final hearing, the Petitioner was represented by legal

counsel, but the Petitioner did not appear at the hearing.

2/ Petitioner's Exhibit 1 was a composite exhibit comprised of

all documents contained in the Board's file regarding the

Petitioner's application for licensure by endorsement. By

agreement of the parties, that exhibit was filed after the final

hearing, and was received by the Division of Administrative

Hearings on June 6, 2000. Petitioner's Exhibit 2 was a letter

dated November 14, 1994, from a Supervisor of the OIIQ.

3/ Respondent's Exhibit 1 was a letter dated November 12, 1998,

from Yves Lafortune, a consultant with Assessment Strategies.

4/ The Proposed Recommended Order submitted by the Respondent

has been carefully considered during the preparation of this

Recommended Order.

5/ There is hearsay evidence (Petitioner's Exhibit 2 and

Respondent's Exhibit 1) in the record of this case from which one

might infer that the 1976 OIIQ examination was similar to the

1976 CNATS examination, but even that evidence is an insufficient

basis for an inference that the 1976 OIIQ examination was

"substantially equivalent to or more stringent than" the 1976

CNATS examination. There is no evidence that either the 1976

OIIQ examination or the 1976 CNATS examination was "substantially

equivalent to or more stringent than" the 1976 State Board Test

Pool Examination administered by the National Council of State

Boards of Nursing.

6/ The only documentary evidence that specifically addresses the

criteria in Rule 64B9-3.008(3)(a) through (e), Florida

Administrative Code, is Respondent's Exhibit 1. The information

in that document fails to establish that the 1976 OIIQ

examination met any of the criteria in the subject rule. The

testimony of Ms. Jacobsen emphasizes the deficiencies in the

documentary evidence.

COPIES FURNISHED:

Michael C. Gold, Esquire

Post Office Box 372

Tallahassee, Florida 32302

Edward A. Tellechea, Esquire

Office of the General Counsel

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Ruth R. Stiehl, Ph.D., R.N.

Executive Director

Board of Nursing

Department of Health

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

Angela T. Hall, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

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.