vs. DOH CASE NO.: DOAH CASE NO.: PL LICENSE NO.:

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1 STATE OF FLORIDA BOARD OF NURSING Final Order No. DOH FO V-MQA By:{ FILED DATE.jAAy_2_ Department f Health DEPARTMENT OF HEALTH, Petitioner, vs. DOH CASE NO.: DOAH CASE NO.: PL LICENSE NO.: FRANCOISE GLORIA HECTOR UTEGA, Respondent. FINAL ORDER THIS CAUSE came before the BOARD OF NURSING (Board) pursuant to Sections and (1), Florida Statutes, at the properly noticed meeting on April 4-6, 2018, in Tampa, Florida, for the purpose of considering the Administrative Law Judge's Recommended Order (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner was represented by Kristen Summers, Assistant General Counsel. Respondent was not present. Upon review of the Recommended Order, the Exceptions filed, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions. EXCEPTIONS The Board considered the Petitioner's Exceptions to the Recommended Order in the matter and makes the following rulings: 1. The Exception to Paragraph 24 is rejected. 2. The Exception to the recommended penalty is rejected. 1

2 FINDINGS OF FACT 1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein by reference. 2. There is competent substantial evidence to support the findings of fact. CONCLUSIONS OF LAW 1. The Board has jurisdiction of this matter pursuant to Section (1), Florida Statutes, and Chapter 464, Florida Statutes. 2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein by reference. PENALTY Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Administrative Law Judge be ACCEPTED. WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED: Respondent's license is suspended until she enters into a mental health contract with IPN, and appears before the Board to demonstrate, thought 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. RULING ON MOTION TO ASSESS COSTS The Board GRANTS Petitioner's Motion to Bifurcate and Retain Jurisdiction to Assess Costs. 2

3 This Final Order shall take effect upon being filed with the Clerk of the Department of Health DONE AND ORDERED this I g4-- frk. day of /Mt BOARD OF NURSING Inthma q/ute,,,,a.s.no Joe R. Baker, Jr. Executive Director for Jody Bryant Newman, EdD, EdS, Chair NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION , FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ivtok Final Order has been provided by U.S. Mail to FRANCOISE GLORIA HECTOR UTEGA, 7007 Belroi Street, Orlando, FL 32818; to J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida ; and by to: Kristen Summers, Assistant General 3

4 Counsel, at and Diane L. Guillemette, Assistant Attorney General, at aj016ay this of O&T, Deputy Agency Clerk iillillywh illiliii ,1 111w il l ,111,1111 Francoise Gloria Hector Utega 7007 Belroi St. Orlando, FL Certified Article Number SENDER'S RECORD 4

5 TO: FROM: Adrienne Rodgers, Chief Bureau of Health Care Practitioner Regulation Joe Baker, Jr., Executive Director Florida Board of Nursing DATE: May 11, 2018 RE: Delegation of Authority During my absence on Monday, May 14, 2018, through Friday, May 25, 2018, the following managers are delegated authority for the board office: 5/14-15 Sherri Sutton-Johnson Director, Nursing Education 5/16-21 Melissa Greenfield Program Ops Administrator 5/22-25 Nicole Benson Program Ops Administrator Thank you. JBjr/ms

6 5281 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HEALTH, BOARD OF NURSING, Petitioner, vs. Case No PL FRANCOISE GLORIA HECTOR UTEGG,11 C.N.A., Respondent. RECOMMENDED ORDER 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 Petitioner: Kristen M. Summers, Esquire Lindsey H. Frost, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida For Respondent: Francoise Gloria Hector Utegg, pro se 7007 Belroi Street Orlando, Florida STATEMENT OF THE ISSUES The issues are whether the Respondent should be disciplined under sections (1)(b) and (1)(z), Florida Statutes2"; and, if so, the appropriate discipline.

7 5282 PRELIMINARY STATEMENT On April 26, 2017, the Petitioner filed an Administrative Complaint against the Respondent. The Administrative Complaint charged the Respondent with the statutory violations 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 DOAH case PL and scheduled for hearing on December 8, 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 evidence 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. FINDINGS OF FACT 1. The Petitioner regulates the practice of nursing and nursing assistants in Florida. The Respondent holds license CNA , which allows her to work as a certified nursing

8 5283 assistant (CNA). She became licensed in 2006 and worked as a CNA at Quality Health Care Center ("Quality Health Care") in Winter Garden from 2007 through There is no evidence that the Petitioner was aware of any concerns about the Respondent's ability to practice as a CNA with reasonable skill and safety until May In May 2016, the Respondent sent an to the Petitioner's Medical Quality Assurance Consumer Services Unit that said: Hi this is Francoise Utegg license # CNA. I m impossible since 2005 after I bought an house with my husband at 2004 Kruger Dr Modesto CA Since in the next day we finished repair the house I m impossible they executed me and video track me I face cults culture deaths I'm 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 work 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 don't have any right They say that I m assaulted to take care of children. They dissolution my married and pushed me down they wasting me in nightmares Thanks for your concern. It s can be anyone's else 3. The Respondent's intent in sending this was to do a public service by alerting the Petitioner to the possibility that many other people might come under similar attacks, to the detriment of their health and safety. The result was that the

9 5284 Petitioner immediately began an investigation into the Respondent's ability to practice with reasonable skill and safety due to a physical or mental illness. 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 undergo 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, In December 2016, the Respondent was at work in the dining room at Quality Health Care when she began hearing voices telling her that she was "a domestique," 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 family's report and

10 5285 required the Respondent to be evaluated and cleared before returning to work. 6. Dr. Smolen examined the Respondent as scheduled on February 13, He diagnosed schizophrenia, paranoid type, continuous. 7. Schizophrenia is a mental disorder characterized by abnormal social behavior and a failure to understand what is real. Symptoms 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 she 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. Smolen's opinion is based in part on information provided to him by the Respondent. She is a Haitian woman, aged approximately 50, who married a Canadian and accompanied him when he returned to Canada in 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

11 5286 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 was 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 "gang cult" in the air, or a "satanic legion." She thought she had been "voodoo-ized." 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 her hands. 10. The Respondent's 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 "witch psychologist" who prescribed Risperdal, an antipsychotic medication. The Respondent thought the dosage she received caused her to "float as though she did not exist" and feel "limp like a snake." In the Respondent's mind, this confirmed that she was cursed, not schizophrenic. 11. The Respondent had blood drawn for her examination by the "witch psychologist." 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 her in Modesto, the Respondent and her husband divorced, and she moved to Orlando, Florida. In Orlando, the Respondent's 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 "attack" against her by the evil spirits, or whoever or whatever was tormenting her. 13. In 2006, despite her 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, given the Respondent's selfreporting 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 harm others, too. The usual police response has been to handcuff the Respondent and transport her to a mental health facility for observation and

13 5288 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 returned 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 Respondent 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 Administrative 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 taking her Zyprexa, as futile, and decompensated. A neighbor witnessed bizarre behavior in her home garden and reported her to the police, who handcuffed her and transported her to a mental health facility for observation and treatment.

14 On November 3, 2017, Dr. Smolen re-evaluated the Respondent. His opinion as to the Respondent's 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 without 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 to impose license discipline, it has the burden to prove the allegations by clear and convincing evidence. See Dep't of Banking & Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). This "entails 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 hesitancy." In re Davey, 645 So. 2d 398, 404 (Fla. 1994). See

15 5290 also Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). "Although this standard of proof may be met where the evidence is in conflict,... it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991). 20. Disciplinary statutes and rules "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't of Bus. & Prof'l Reg., 812 So. 2d 583, (Fla. 3d DCA 2002); McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984) ("[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 included, they must be construed in favor of the licensee." (citing State v. Pattishall, 126 So. 147 (Fla. 1930)). 21. The grounds proven in support of the Petitioner's assertion that the Respondent's license should be disciplined must be those specifically alleged in the Administrative Complaint. See e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep't of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Dep't of Prof'l Reg., 10

16 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. Owners' Ass'n, Inc. v. Dep't of Envtl. Prot., 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992). 22. The Administrative Complaint charges the Respondent with a violation of section (1)(b), Florida Statutes, by an intentional violation of section (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 (including necessary medications), and being monitored for compliance by IPN. 24. The alleged violation of section (1)(b) is less clear. The Petitioner's theory is that the Respondent intentionally violated section (1)(z) because she has been repeatedly made aware of her diagnosis, hospitalized for treatment, and made aware that she must undergo medication 11

17 5292 management and treatment for her condition in order to relieve herself of her mental impairment. However, the Respondent does not accept the diagnosis 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 effect at the time a violation was committed. Willner v. Dep't of Prof'l Reg., Bd. of Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576 So. 2d 295 (Fla. 1991). 26. Section 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. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, (Fla. 5th DCA 1999). 27. The Board may impose the following penalties under section (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 probation for a period of time; corrective action; and/or require that the practitioner undergo remedial education.

18 Florida Administrative Code Rule 64B (3)(ee)3/ provides that the Board shall, when it finds a licensee has violated section (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 64B provides that the Board is entitled to deviate from the guidelines upon a showing of aggravating or mitigating circumstances by clear and convincing evidence. 30. Rule 64B (5)(b) provides the following circumstances which may be considered for purposes of mitigation or aggravation of penalty: 1. The danger 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 deterrent 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.

19 Financial hardship. 10. Cost of disciplinary proceedings. Consideration of these factors warrants a deviation from the penalty range by eliminating the fine (as suggested in the Petitioner's Proposed Recommended Order). 31. Section (4) provides that, in addition to any other 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 (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.

20 5295 DONE AND ENTERED this 6th day of February, 2018, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida (850) Fax Filing (850) Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, ENDNOTES The Respondent's last name is Utegg. It was misspelled in the Administrative Complaint 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. si All rule citations are to the rules that were in effect in COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida (eserved) Francoise Gloria Hector Utegg, C.N.A Belroi Street Orlando, Florida

21 5296 Lindsey H. Frost, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida (eserved) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida (eserved) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida (eserved) 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.

22 5/17/2018 null DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH PETITION ER, v. CASE NO FRANCOISE GLORIA HECTOR UTEGA, C.N.A., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner Department of Health files this Administrative Complaint before the Board of Nursing against Respondent Francoise Gloria Hector Utega, C.N.A., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of nursing assistants pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 464 Florida Statutes. 2. At all times material to this Complaint, Respondent was certified as a nursing assistant within the state of Florida, having been issued certification number CNA Respondent's address of record is 7007 Belroi Street, Orlando, Florida /4

23 5/17/2018 null 4. On or about February 13, 2017, Jamie Smolen, M.D., a physician specializing in psychiatry, evaluated Respondent. 5. Dr. Smolen diagnosed Respondent with schizophrenia, paranoid type, episodic with inter-episode residual versus continuous.. 6. Dr. Smolen opined that Respondent is unable to practice as a nursing assistant with reasonable skill and safety to patients. 7. Section (1)(b), Florida Statutes (2016), subjects a certified nursing assistant to discipline for intentionally violating any provision of Chapter 456, Chapter 464, or the rules adopted by the Board of Nursing. 8. Section (1)(z), Florida Statutes (2016), authorizes discipline, including restriction, against a nursing assistant for being unable to practice as a nursing assistant with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. 9. Respondent violated Section (1)(b), Florida Statutes (2016), by intentionally violating Section (1)(z), Florida Statutes (2016), by being unable to practice as a nursing assistant with reasonable DOH vs. Francoise Gloria Hector Utega, C.N.A. 2 Case No: /4

24 5/17/2018 null skill and safety to patients due to her schizophrenia, paranoid type, episodic with inter-episode residual versus continuous. WHEREFORE, Petitioner respectfully requests that the Board of Nursing enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's certification, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this LA. day of ilee k., Celeste Philip, MD, MPH Surgeon General and Secretary FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK And Sreene DATE APR Rob F. Sum iers Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Florida Bar Number Phone (850) x 8150 Fax (850) Robert.Summers@flhealth.gov RFS/plp PCP: April 26, 2017 PCP Members: Mary Kay Habgood, PhD, RN (Panel Chair) Lori Desmond, MSN, RN, NE-BC DOH vs. Francoise Gloria Hector Utega, C.N.A. 3 Case No: hrips://dohmqa31.1mageapi.com/main 3/4

25 5/17/2018 null NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section and , Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule (2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule (4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule (5), Florida Administrative Code. Mediation under Section , Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section (4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH vs. Francoise Gloria Hector Utega, C.N.A. 4 Case No: /4

26 5/17/2018 null STATE OF FLORIDA DEPARTMENT OF HEALTH FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Ansel Sanders DATE FEB DEPARTMENT OF HEALTH, Petitioner, DOH Case Nos v. DOAH Case No PL FRANCOISE GLORIA HECTOR UTEGG, C.N.A., Respondent. PETITIONER'S EXCEPTIONS TO THE RECOMMENDED ORDER The State of Florida, Department of Health (Petitioner), by and through Its undersigned attorney and pursuant to section , Florida Statutes (2017), and Florida Administrative Code Rule , hereby files the following Exceptions to the Administrative Law Judge's (AU) Recommended Order (RO) filed February 6, 2018, in the above-styled cause. For the reasons stated below, Petitioner requests the Board enter an order adopting the AU's RO in part, and adopt the alternative condusions of law as provided below. Rule (1), provides: Petitioners General Response (1) Parties may file exceptions to findings of fact and conclusions of law contained In recommended orders with the agency responsible for rendering final agency action within 15 days of entry of the recommended order except In proceedings conducted pursuant to Section (3), F.S. Exceptions shall Identify the disputed portion of the recommended order by page number or paragraph, shall Identify the legal basis for the exception, and shall include any appropriate and specific dtations to the record. (emphasis added) Furthermore, section (1Xk), provides in pertinent part: 1 1/7

27 5/17/2018 null The final order shall include an explicit ruling on each exception, but an agency need not rule on an exception that does not dearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not indude appropriate and specific dtations to the record. The Board of Nursing Is vested by the laws of Florida with the authority to interpret and apply such laws, regulations, and policies as are applicable to programs within the Board's regulatory sphere. The Board may reject or modify an AU's Recommended Order as provided in section (1)(1), which states: The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, aid states with particularity in the order, that the finoinga of fact were not based upon competent substantial evidence or that the proceedings on which the findings were base(' did not comply with the essential requirements cf law. The agency may accept the recommended penalty in a recommended order. but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record In justifyi g the action. (emphasis added). The Board may reject or modify the findings of fact if the Board first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements 2 2/7

28 5/17/2018 null of law. The Board is "not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion." Heifetz v. Dept of Bus. Regulation, 475 So. 2d 1277, (Fla. 1st DCA 1985); see also Rogers v. Dept of Health, 920 So. 2d 27, 31 (Fla. 1st DCA 2005). Similarly, the Board may not reevaluate the quantity or quality of the evidence presented at the final hearing. The only evaluation that the Board is authorized to make is whether the evidence is competent and substantial. See Martuccio v. Dept of Profl Regulation, Bd. of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993) (citing Helfetz, 475 So. 2d 1277; Brogan v. Carter, 671 So. 2d 822, 823 (Fla. 1st DCA 1996)). "An AL.I's findings cannot be rejected unless there is no competent, substantial evidence from which the findings could reasonably be Inferred." Prysi v. Dept of Health., 823 So. 2d 823, 825 (Fla. 1st DCA 2002). Competent substantial evidence is defined by the Florida Supreme Court as: Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably Inferred. We have stated It to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be suffidently relevant and material that a reasonable mind would accept It as adequate to support the conclusion reached. To this extent the 'substantial' evidence should also be 'competent' DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) (emphasis added, internal dtations omitted). Therefore, "[i]f the administrative law judge's findings are supported by competent substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent substantial evidence." Resnick v. Hagler Cty. Sch. Bd., 46 So. 3d 1110, (Fla. 5th DCA 20.10) (citing Gross v. Dept of Health, 819 So. 2d 3 3/7

29 5/17/2018 null 997, 1002 (Ha. 5th DCA 2002)). "An agency abuses its discretion when it improperly rejects an administrative law judge's findings." Resnick 46 So. 3d at However, when findings of fact become matters of opinion and such opinions Include policy considerations over which the Board has special responsibility, the Board is permitted to reject or modify them notwithstanding the fact that they are called findings of fact. Sch. Bd. of Leon Cty. v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981). Therefore, the standard to be applied by the Board when dedding the validity of exceptions to findings of fact includes 1) whether the record, taken as a whole, establishes a basis of fact from which the facts at Issue can be reasonably inferred; 2) whether the evidence relied on to sustain the facts is sufficiently relevant and material that a reasonable mind would accept it as supporting the conclusion reached; and 3) whether the Board has special reasonability in these matters such that it has special insight which must be considered. If a finding of fact in a RO is improperly labeled by an AU, the label should be disregarded and the item treated as though it were properly labeled as a condusion of law. Battaglia Props. v. Fla. Land Adjudicatory Comm'n, 629 So. 2d 161, 168 (Ha. 5th DCA 1994). In order to reject or modify a conclusion of law, the Board must: 1) state with particularity Its reasons for rejecting or modifying such condusions of law; and 2) make a finding that the substituted conclusion of law is as or more reasonable than that which was rejected or modified. a 2g also Barfield v. Dept of Health, 805 So. 2d 1008 (Ha. 1st DCA 2001); Pan Am World Airways v. Fla. Pub. Serv. Comm'n, 427 So. 2d 716 (Fla. 1983); Humana, Inc. v. Dept of Human & Rehab. Servs., 492 So. 2d 388, 392 (Ha 4th DCA 1987); 4 4/7

30 5/17/2018 null Bayonet Point Regional Medical Center v. Dept of Human & Rehab. Servs., 516 So. 2d 995 (Ha. 1st DCA 1987). An agency may adopt the AU's findings of fact and conclusions of law and reduce or increase the recommended penalty of the AU in its Final Order. Crim. Just. Stds. & Training Comm'n v. Bradley, 596 So. 2d 661, 663 (Fla. 1992). [I]t is a primary function of professional disciplinary boards to determine the appropriate punishment of the misconduct of the professionals it regulates. As long as the statute under which a professional agency operates provides guidelines for imposing penalties, the agency complies with section (1)[(l)], and the increased penalty falls within the guidelines established by its statute, a professional board or agency has the discretion to increase the recommended penalty. Ifj. Based on the foregoing requirements of law and argument below, Petitioner requests that the Board of Medicine grant Petitioner's exceptions and modify the AU's findings as recommended. EXCEPTION TO CONCLUSIONS OF LAW Exception to Paragraph 24 Petitioner takes exception to the Conduslon of Law in Paragraph 24 wherein the AU states, "...Respondent does not accept the diagnosis and does not think treatment is necessary. For that reason, her refusals to be treated cannot be said to be intentional..." Petitioner takes exception to this conclusion because there is competent, substantial evidence to show that Respondent's failure to engage in treatment was intentional. (P. Exh. 1, 32, P. Exh. 2, p. 5-7; Tr. p ). The alternative conclusion of law that Respondent is intentionally unable to practice nursing with reasonable skill and 5/7

31 5/17/2018 null safety to patients due to her intentional refusal to undergo treatment, is as or more reasonable than the Airs conclusion of law. Petitioner recommends the Board reject the AU's conclusion of law and replace it with the conclusion that Respondent is intentionally unable to practice as a nursing assistant with reasonable skill and safety to patients, in violation of Section (1)(b), and Section (1Xz), Florida Statutes. EXCEPTION TO THE RECOMMENDED PENALTY Petitioner takes exception to the AU's recommended penalty. Petitioner proved by clear and convincing evidence that Respondent violated Section (1)(b), Florida Statutes, by intentionally violating Section (1)(z). Petitioner recommends the Board include in the Final Order that Respondent violated Section (1)(b), Florida Statutes. WHEREFORE, Petitioner requests relief in accordance with the foregoing exceptions to the Recommended Order and to impose a penalty of revocation including the payment of costs associated with the investigation and prosecution of this case. Respectfully Submitted, /s/ Kristetn. M. Summers Kristen M. Summers, Esq. Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Florida Bar # (850) (850) Fax Kristen.Summersaflhealth.gov 6 6/7

32 5/17/2018 null CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to Respondent at 7007 Belroi Street, Orlando, Florida 32818, and via electronic mail at utgloria8@gmail.com, this 16th day of February, /s/ Kt-I-stew M. Summers Kristen M. Summers, Esq. Assistant General Counsel 7 7/7

33 5318 DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH BOARD OF NURSING v. Pt i 1 i LONER, DOAH Case Number PL DOH Case Number FRANCOISE GLORIA HECTOR UTEGG, C.N.A., RESPONDENT. MOTION TO BIFURCATE AND RETAIN JURISDICTION TO ASSESS COSTS IN ACCORDANCE WITH SECTION (4), FLORIDA STATUTES (20171 The Department of Health, by and through. undersigned counsel requests the Board of Nursing ("Board") enter an Order bifurcating the issue of costs and retaining jurisdiction to assess costs, against Respondent for the investigation and prosecution of this case in accordance with Section (4), Florida Statutes (2017). Petitioner states the following in support of the request: 1. At its next regularly scheduled meeting, the Board will take up for consideration the above-styled disciplinary action and will

34 5319 enter a Final Order therein. 2. Pursuant to Section (2)(1), Florida Statutes (2017), the final order in a proceeding heard by an administrative law judge, which affects a party's substantial interests, must be rendered within ninety days after a Recommended Order is submitted to an agency, unless the ninety days is waived by the Respondent. 3. The Administrative Law Judge's Recommended Order was submitted to the agency on or about February 6, Ninety days from this date is on or about May 6, However, the only Board of Nursing Meeting scheduled before that date occurs on April 4-6, Section (4), Florida Statutes (2017), states as follows: In addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, pursuant to this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is not board, shall assess costs related to the investigation and prosecution of the case. The costs related to the investigation and prosecution include, but are not limited to, salaries and benefits of personnel, costs related to the time spent by the attorney and other personnel working on the case, and any other expenses incurred by the department for the case. The board, or the department when there is no board, shall determine the amount of costs to be assessed after its consideration of an affidavit of 2

35 5320 itemized costs and any written objections thereto... (emphasis added) 5. In order for the Board to assess costs against the Respondent, under the current case law, the Department is required to obtain an outside expert attorney opinion verifying the reasonableness of the time spent by the Departments attorneys on this matter or the amount of fees sought. Georges v. Dept of Health, 75 So. 3d 759 (Ha. 2d DCA 2011). 6. In order for the Board to assess costs against the Respondent, under the current case law, the Department is also required to verify attorneys' time spent on a case and prepare supporting affidavits for the amount of attorneys' time sought to be recovered. Georges v. Dept of Health, 75 So. 3d 759 (Fla. 2d DCA 2011). 7. There is insufficient time for the Department to verify its attorney's time spent on the case; prepare supporting affidavits for the amount of attorney's time sought to be recovered; and obtain an outside expert attorney opinion verifying the reasonableness of the time spent by the Department's attorney on this matter or the amount of fees sought. 8. The bifurcation of the issue of cost recovery by the Department 3

36 5321 to a later date will not cause any undue hardship to the Respondent as it will delay, rather than expedite, the date at which a final order on the assessment of cost would be entered against Respondent, and thus delay the date upon which any payment for costs would be due and owing. 9. Petitioner requests that the Board grant this motion, bifurcate the issue of assessment of costs and retain jurisdiction to assess costs against Respondent once the Department has obtained an outside expert attorney opinion verifying the reasonableness of the time spent by the Department's attorney on this matter or the amount of fees sought, obtains supporting affidavits for the amount of attorney's time sought to be recovered and brings a motion to assess costs before the Board of Nursing. WHEREFORE the Department of Health requests that the Board of Nursing enter an Order bifurcating the issue of cost assessment and retaining jurisdiction to assess costs against Respondent. [Signature Appears on Following Page] 4

37 5322 Respectfully submitted, Kristen Summers, Esquire Assistant General Counsel Florida Bar No Florida DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL (P) (850) (F) (850) (E) CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of the foregoing Motion to Bifurcate and Retain Jurisdiction to Assess Costs in Accordance With Section (4), Florida Statutes (2017) has been furnished to Respondent, Francoise Gloria Hector Utegg, C.N.A., via U.S. mail to, 7007 Belroi ST, Orlando, Florida this day of Rioet,ta.ry Kristen Summers, Esquire Assistant General Counsel