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Court overturns penalty in nursing-home theft

An appeals court has overturned a Florida Board of Nursing decision to revoke the license of a nursing home worker accused of stealing from a patient.

The 2nd District Court of Appeal opinion upheld the nursing board's ruling that Certified Nursing Assistant (CNA) Fedeline Georges was guilty of "unprofessional conduct." But the court said the board imposed a penalty that was harsher than legally permitted.

The decision also said the Department of Health failed to prove that it spent more than $15,700 -- most of it in legal fees -- in prosecuting the case. Licensees who are disciplined by professional boards are required to pay those costs.

The court rulingmeans that DOH's prosecutions for all professions will be a bit more cumbersome. The agency will have to introduce more evidence at hearings if it wants a penalty that's outside the guidelines and must show an accounting for costs before submitting the bill.

Defense attorneys for health professionals applauded the decision.

"This is a good opinion because it reminds DOH that it has to follow required procedures, even when dealing with a little ole CNA," said attorney Julie Gallagher of Akerman Senterfitt in an e-mail.

Another defense attorney, Allen Grossman, agreed. He said he and his colleagues have been concerned for quite a while that boards "simply award any costs demanded by the department, including unverified and unjustified attorney fees, without any showing of actual costs" or whether they're appropriate.

DOH declined to comment on the opinion, which was handed down Nov. 2. Apparently because the court ruling has implications for other boards, it is scheduled for discussion by the Board of Medicine next week.

Ironically, the far-reaching decision was argued by an attorney who lacked much experience in administrative and appellate law. Criminal defense attorney Tom Grajek of Lakeland said in an interview that he took on the case at the request of the Florida Bar, and when he realized what was entailed, he was worried.

"I hadn't done an appeal in 11 years," Grajek said. "I called everybody I could find" who was familiar with appellate law, he said, "but they would not touch the case."

According to the recommended orderissued by Administrative Law Judge Susan B. Harrell, these were the facts of the case:

In May 2009, Georges was working at Valencia Hills Health and Rehabilitation Center when a theft was reported. A patient, identified only by the initials TK, said she had seen Georges take her wallet, which contained $10, and slip it into her pants.

TK, a 34-year-old with a degenerative muscle disease, could not talk, but she could nod her head and communicate by pointing to letters on a board.

The nursing home officials called police. During the questioning, Georges denied taking TK's wallet but became so agitated and confrontational that she was escorted out and later fired. The nursing home reported Georges to DOH.

Grajek said the criminal charges against Georges were dropped when she completed a diversion program, but the DOH investigation was already under way. An administrative complaint was filed in December 2009.

Georges requested a formal evidentiary hearing, held April 1, 2010. The following month Harrell issued an opinion that Georges had violated the law governing unprofessional conduct and recommended that the nursing board impose two years' probation and a fine of $250.

When the Board of Nursing considered the case in Tampa in August 2010, DOH asked for a stronger penalty, saying the board had traditionally considered theft to be grounds for revoking a license. The board agreed.

But as the appellate court stated, the Board of Nursing "improperly aggravated the penalty in violation of the law and the Board's own rules."

--Health News Florida is an independent online news service dedicated to journalism in the public interest. Questions or letters to the editor are welcome. Contact Editor Carol Gentry at 727-410-3266 or by e-mail.

Carol Gentry, founder and special correspondent of Health News Florida, has four decades of experience covering health finance and policy, with an emphasis on consumer education and protection.