99-004161 Vergella Joseph Anicet vs. Department Of Health, Board Of Nursing Status: Closed Recommended Order on Wednesday, October 18, 2000.

Summary: Applicant not entitled to take registered nurse exam when she is unable to show what courses she completed in nurse school in Haiti, even though conflicting transcripts are the fault of the school and not the applicant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERGELLA JOSEPH ANICET, )

)

Petitioner, )

)

vs. ) Case No. 99-4161

)

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge, Mary

Clark, held a formal hearing in the above-styled case on August

18 and August 25, 2000. The hearings were conducted by

videoconference on August 18 and telephone on August 25. The

Administrative Law Judge presided on both days from Tallahassee,

Florida.

APPEARANCES

For Petitioner: Juan C. Gautier, Esquire

Bank of Central Florida Building

Suite 300

105 East Robinson Street

Orlando, Florida 32801

For Respondent: Edward A. Tellechea, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Petitioner seeks licensure by examination as a registered

nurse in the State of Florida. The issue for disposition here

is whether her application should be granted.

PRELIMINARY MATTERS

On July 19, 1999, after its public meeting on June 11,

1999, the Board of Nursing issued a Notice of Intent to deny Ms.

Anicet's application for licensure as a registered nurse based

on her failure to demonstrate that she completed an appropriate

educational program or program equivalent and because it

appeared that a signature on a form in her application had been

forged.

Ms. Anicet timely requested a formal evidentiary hearing

and the case was referred to the Division of Administrative

Hearings.

Upon assignment to the Administrative Law Judge the hearing

was set for February 11, 2000, but was continued several times

upon the request of both parties. Counsel for Ms. Anicet was

given more time to gather documentation and counsel for the

agency had a schedule conflict.

When the hearing proceeded as described above, Ms. Anicet

testified in her own behalf and offered three exhibits in

evidence. Petitioner's Exhibit Two was rejected as it could not

be authenticated; Petitioner's Exhibits One and Three were

received in evidence.

Respondent, the agency, presented the testimony of Carrie

M. Harris, nursing education consultant for the Board of

Nursing. Respondent's three Exhibits were received in evidence

as Respondent's Exhibits One through Three.

The Transcripts of hearing were filed on September 15 and

20, 2000. Respondent filed its Proposed Recommended Order on

October 2, 2000.

FINDINGS OF FACT

1. Vergella Joseph Anicet was born in Haiti on July 26,

1957. After high school and university studies she attended the

National School of Nursing in Port-Au-Prince, Haiti, from 1982-

1985, and graduated in 1985.

2. Ms. Anicet emigrated to Miami, Florida, in November

1985. After approximately a year she moved to Central Florida

and now is residing in Orlando.

3. In 1990, Ms. Anicet applied for licensure as a

registered nurse in Florida. Upon her request, the nursing

school in Haiti sent a transcript directly to the Board of

Nursing. The Board approved her to work as a graduate nurse

until she could take the licensing examination.

4. After she failed the examination Ms. Anicet lost her

graduate nurse permit but qualified for licensure as a certified

nursing assistant. In 1993, she passed the licensed practical

nurse (LPN) examination and has been employed as an LPN since

then.

5. Ms. Anicet applied again for licensure as a registered

nurse by examination in February 1999. As part of the process

of that application she requested the nursing school in Haiti to

send her transcript to the Board of Nursing.

6. The nursing school sent Ms. Anicet's transcript

directly to the Board. However, the transcript sent in 1999

varied in many material aspects from the version that the Board

received from the school in 1990. The discrepancies are in the

described courses, numbers of hours completed, and in the

clinical practice experiences described in the two transcripts.

7. From the record it is impossible to determine which is

the correct transcript. In response to a request by Ms.

Anicet's attorney, the National School of Nursing in Port-Au-

Prince sent a letter to the Board of Nursing in October 1999, in

an attempt to explain the two transcripts. As best as can be

determined, the school revised its curriculum in November 1997

and somehow readjusted the official transcript to conform to the

revisions. However, there is no key to how the adjustments were

made. The differences are not attributable to different

translations, French to English, of the two documents.¹

8. There is no evidenc e of any fraud by Ms. Anicet. The

peculiar documents came directly to the Board from the school in

Haiti. The Board has had problems verifying the coursework of

other applicants who are graduates from this same school.

9. The evidence establishes that Ms. Anicet graduated from

nursing school but does not establish the courses or program

which she completed.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

.57(1), Florida Statutes.

11. As an applicant for a professional license Ms. Anicet

must prove her entitlement to that licensure. Espinoza v.

Department of Business and Professional Regulation , 739 So. 2d.

1250 (Fla. 3rd DCA 1999); Harac v. Dept. of Professional

Regulation , 484 So. 2d. 1333, (Fla. 3rd DCA 1986). When an

agency's basis for denying licensure is the applicant's alleged

violation of the regulatory statute, the agency must prove the

violation by a prepondence of evidence. Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d. 932 (Fla.

1996).

12. In this case both parties have failed to meet their

respective burdens of proof.

13. There is no evidence whatsoever of fraud or fraudulent

misrepresentation by Ms. Anicent, which if proven would have

been a violation of Section 464.018(1)(a), Florida Statutes, and

a valid basis for license denial.

14. However, through no apparent fault of her own Ms.

Anicet has been unable to provide reliable documentation of the

program she completed in Haiti. Section 464.008(1)(c) and (2),

Florida Statutes provide:

464.008 Licensure by examination.–

(1) Any person desiring to be licensed as a

registered nurse or licensed practical nurse

shall apply to the department to take the

licensure examination. The department shall

examine each applicant who:

* * *

(c) Is in good mental and physical

health, is a recipient of a high school

diploma or the equivalent, and has completed

the requirements for graduation from an

approved program for the preparation of

registered nurses or licensed practical

nurses, whichever is applicable. Courses

successfully completed in a professional

nursing program which are at least

equivalent to a practical nursing program

may be used to satisfy the education

requirements for licensure as a licensed

practical nurse.

(2) Each applicant who passes the

examination and provides proof of graduation

from an approved nursing program shall,

unless denied pursuant to S. 464.018, be

entitled to licensure as a registered

professional nurse or a licensed practical

nurse, whichever is applicable.

15. In 1999, when the Board of Nursing acted to deny Ms.

Anicet's application, the Board's Rule 64B9-3.002(1)(c), Florida

Administrative Code, required that a graduate of a foreign

nursing program provide an official transcript and describe all

courses successfully completed or evidence that the required

course content in the foreign graduate's country was

substantially equivalent to that required in Florida at the time

of the applicant's original licensure. The information provided

in the record of this proceeding does not meet this requirement.

16. Since 1999, Rule 64B9-3.002, Florida Administrative

Code, has been amended to provide:

64B9-3.002 Qualifications for Examination.

(1) An applicant seeking certification to

take the licensure examination shall submit,

on forms provided by the Department,

evidence that he or she meets the

qualifications prescribed by the Nurse

Practice Act, Chapter 464, F.S. Such

evidence shall consist of:

* * *

(c) If graduated from an approved program

in Florida, a notice of graduation or of

completion of the requirements for

graduation; if not, an official certified

transcript from the applicant's program or

equivalent documentation which specifically

sets forth all courses successfully

completed, the date of the applicant's

graduation, and the degree, certificate or

diploma awarded. If the applicant is

seeking to qualify to write the examination

on the basis of education received in

country [sic] other than the United States,

the applicant must obtain a report by a

credentialing agency that meets the

requirements of Rule 64B9-3.014, F.A.C.

(emphasis added)

17. It may be possible for Ms. Anicet to obtain the

required report, particularly if, as revealed by the Board's

staff person, she is only one of several applicants with

problems verifying the Haiti school's program. For now,

however, the requirements of the statute and rule have not been

met.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED:

That the Board of Nursing enter its final order denying Ms.

Anicent's application without prejudice to her right to reapply

when she is able to obtain an appropriate credentialing report.

DONE AND ENTERED this 18th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 18th day of October, 2000.

ENDNOTE

1/ Even if Petitioner had been able to authenticate her offered

Exhibit 2, another letter from the nursing school purporting to

explain the differences, that letter would still have been

insufficient to establish what courses Ms. Anicet completed from

1982-1985.

COPIES FURNISHED:

Juan C. Gautier, Esquire

Bank of Central Florida Building

Suite 300

105 East Robinson Street

Orlando, Florida 32801

Edward A. Tellechea, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

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

Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General counsel

Department of Health

4052 Bald Cypress Way

Bin A00

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.