STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2066

)

ADELINE G. BEACH, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice in the Conference Room of the Department of Health and Rehabilitative Services, 2002 Northwest 13th Street, Gainesville, Florida, on March 10, 1978, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case was presented upon an administrative complaint filed by the Florida State Board of Nursing against Adeline Beach alleging that she had dispensed prescription and controlled drugs without a doctor's order or prescription from the drug stock of Lancaster Youth Development Center (LYDC), thereby violating Sections 464.21(1)(b),(d), and Section 464.21(1)(g), by violating Section 465.21(2)(b), Florida Statutes. Further, the administrative complaint alleges that Adeline Beach knowingly permitted an unlicensed person to perform nursing functions contrary to Section 464 and failed to properly safeguard medications by leaving the medication cabinet open, unlocked, and unattended which constitutes a violation of Section 464.21(1)(b), Florida Statutes.

The Respondent moved to dismiss certain portions of the administrative complaint on the basis that they failed to state a cause of action upon which the Respondent, as an individual, could be charged. This motion was taken under advisement. The Board presented evidence to support its allegations. The Respondent testified and presented evidence in defense of the allegations against her. Subsequent to the presentation of the Board's case, the Respondent again moved to dismiss portions of the administrative complaint on the basis that the board had failed to prove the allegations and renewed the motion which it had made at the commencement of the proceedings. These motions were also taken under advisement.

The motions by the Respondent to dismiss portions of the administrative complaint are denied and this case is considered on its merits.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

Florida State Board of Nursing 1107 Blackstone Building

Jacksonville, Florida 32202

For Respondent: Rodney W. Smith

Gene Hal Johnson Smith and Johnson Post Office Box 508

Gainesville, Florida 32602 FINDINGS OF FACT

1. Adeline Beach is a registered nurse holding a license issued by the Florida State Board of Nursing. At all times relevant to the administrative complaint against her, Adeline Beach was employed at Lancaster Youth Development Center (LYDC), a facility owned and operated by the State of Florida through the Division of Youth Services, Department of Health and Rehabilitative Services. Adeline Beach was the head of the medical department of LYDC and in this capacity supervised the operation of the institution's small infirmary and its medical staff under the general supervision of doctors employed under contract by the Department of Health and Rehabilitative Services.

   
   

2. On October 4, 1977, an inspection team of three persons visited the infirmary at Lancaster Youth Development Center at approximately noon time. Beach was the only person on duty, and was engaged at the time in preparing and administering medications to out patients who were coming in during their lunch period to receive their medications. The medication cabinet was open and Beach was involved in preparing and administering medications from it. After visiting with the team in the medication room, Beach took the team on a brief tour of the facility. This tour took between ten and fifteen minutes. Beach had to leave the inspection party many times during the tour to return to the medication room and administer medications. To have secured the cabinet during the administration of medication to out patients would have required cessation of the administration of medications, and had Beach remained in the medication room to administer medications she could not have taken the inspection team on a tour of the facility which was expected of her.

   
   

3. The medicines were generally secured in the infirmary at all times and Beach, as supervisor, required the staff to lock the cabinets when they were not in use. Beach was also responsible for having had all the security devices and drug cabinets in the facility installed.

   
   

4. As stated in paragraph 1 above, Beach was supervisor of the nursing staff at the infirmary at Lancaster Youth Development Center. However, she did not have authority to hire an employee. Employment of an individual was by the State of Florida, through the personnel officer and superintendent of Lancaster Youth Development Center. Because of the inability to recruit and retain licensed nursing staff, the Department of Health and Rehabilitative Services with the approval of the Department of Administration approved the employment of unlicensed persons in the established positions of Registered Nurse I at Lancaster Youth Development Center. Unlicensed persons employed with the state in these positions were assigned duties in the infirmary to provide treatment to students. These employees were not assigned the scope of duties of a registered nurse; however, they were assigned the duty of administering medications prescribed by the physicians to students. While the administration of medications is traditionally a nursing function, their assignment to this duty was known to the doctor's supervising the health care program and the administrators of the institution. This practice was necessitated by the lack of licensed nursing staff to man the facility 24 hours a day. Beach was on call to handle any situations which arose requiring nursing care. The practice of hiring unlicensed persons in the established positions of registered nurses

   continued for over a year until it was changed by the Department of Health and Rehabilitative Services when registered nurses became available.

   
   

5. The medical staff at the infirmary at Lancaster Youth Development Center were permitted to render services to the staff of the institution under certain conditions. Beach operated the infirmary under the tenure of three different superintendents, the last two who promulgated directives regarding treatment of staff. The latest superintendent, Robert Benedict, stated that when he first arrived at Lancaster Youth Development Center he was unaware of any directives on the subject of medical care to staff members. He stated that he later became aware of a directive dated August 1974 from Maurice Crockett, his predecessor. Benedict interpreted the Crockett memorandum to mean that only treatment in dire emergency circumstances would be permitted. However, Crockett testified that Beach had asked for a memorandum to restrict the use of the infirmary by the staff because this practice was over burdening the medical staff at the infirmary. Crockett further stated that the language in his memorandum was interpreted by he and Beach to permit treatment of persons who needed emergency treatment because of a medical necessity or emergency treatment to prevent the loss of the individual's services to the institution. The latter situation Crockett characterized as an "operational emergency." He explained that the isolation of Lancaster Youth Development Center and the lack of medical treatment facilities and physicians in the community resulted in the loss of staff who had to go to Gainesville or elsewhere for treatment. The loss of staff who sought outside medical treatment hampered the efficient operation of the institution. Crockett placed administration of the directive in Beach's hands and stated that he had faith in her ability to make the appropriate judgments. Crockett's guidelines remained in effect until superceded by the memorandum of Benedict of March, 1977. It should be noted, however, in the intervening months Secretary Page of the Department of Health and Rehabilitative Services also issued a policy statement with regard to the treatment of staff personnel. Secretary Page's policy memorandum is consistent with the policy outlined by former superintendent Crockett. Based upon the evidence presented there is no showing that any treatment was rendered to staff members except in accordance with the existing policies. Consequently, the administration of medications to staff personnel was administratively authorized.

   
   

6. Testimony was received from Jackie Rollings, Amelia Coleman, Robert Benedict and Kirk Carlson regarding medications allegedly dispensed to them by Beach. The testimony of Robert Benedict was principally directed to the administration of codeine tablets, aspirin, or tylenol with codeine, and zyloprim, which Beach allegedly arranged to be prescribed for Benedict. Jackie Rollings also alleged that she received codeine from Beach. The testimony of registered nurses who were employed at Lancaster Youth Development Center reflect that pure codeine was not stocked at the facility. The testimony of Dr. Asa Godbey shows that Benedict was in error in his recollection concerning the administration of pure codeine to him by Mrs. Beach. Dr. Godbey's testimony clearly shows that the medication received by Benedict was Demerol which was prescribed by Dr. Godbey for Benedict for pain associated with kidney stones. Victor Shipley testified that the prescription for zyloprim for Benedict was filled by him and delivered directly to Benedict on the basis of a prescription telephoned in from Dr. Henry. Shipley stated that he had no recollection of speaking with Beach concerning zyloprim.

   
   

7. Rollings was employed at Lancaster Youth Development Center as secretary to Kirk Carlson. She alleged Beach had given her valium, darvon, ampicillin, tetracycline, phenergan with codeine, phenophen, and dylantin. Jackie Rollings altered her testimony regarding an important incident concerning

   the description of the drug she stated she had been given and which she had identified as valium after she determined that her description was erroneous and she had consulted medical references. Her testimony is discounted in toto.

   
   

8. Amelia Coleman stated that, in addition to various cold medications, Adeline Beach had given her valium during the months of June, July, and August, while Coleman was on duty at Lancaster Youth Development Center. Coleman's testimony is slightly unclear but it seems that she alleged that she received one tablet of valium from Beach when he was on duty several times during the late summer months. In every instance, Coleman stated that she felt sick enough to seek medical assistance for her nerves, which were upset by marital problems she was having at the time. Coleman stated that she had spoken with Beach on these occasions regarding seeking medical assistance from the local mental health unit over her marital and emotional problems. Coleman stated that she also received valium from the local mental health unit.

   
   

9. Kirk Carlson stated that he received only medications for colds and sinus trouble from Beach.

   
   

10. At all times relevant to the complaint, standing orders signed by the physician in charge of the medical treatment at Lancaster Youth Development Center were in effect. These standing orders were introduced as Exhibits 13 and

1. Exhibit 13 is dated October, 1975, and remained in effect until superceded by the standing order dated October, 1976. These standing orders prescribe, order or direct treatment for specific injuries, ailments or conditions. The first standing order, Exhibit 13, provides for the administration of darvon, phenophen or phenophen plus for the relief of severe headaches. This standing order provides for the administration of valium to control mild problems with hysteria. This standing order provides for the administration of the cough syrup of choice for upper respiratory infections and coughs. The standing orders as published were applicable to all patients treated at the Lancaster Youth Development Center Infirmary.

   
   

   1. The standing order does not mention the use of tylenol with codeine. Phenophen is acetamenophen which is the same generic drug as tylenol. No competent evidence was received that phenophen with codeine was administered. Testimony was received that tylenol with codeine was administered for pain of kidney stones, which ailment was not covered in the standing orders. However, no evidence was introduced that acetamenophen with codeine is a controlled or prescription drug.

      
      

   2. The drugs referenced in paragraph 11 above are the only ones about which substantial and competent evidence was received. Authority existed under the standing orders to administer these drugs in the manner outlined in the testimony of the witnesses for the treatment of the injuries, ailments, or conditions from which they stated they were suffering.

      
      

   3. The only drug which was allegedly administered and that was not covered by the standing order was tylenol with codeine for the relief of pain associated with kidney stones. The standing orders do not address this ailment. No evidence was received concerning the nature of the drug tylenol with codeine. Adeline Beach denied having given any prescription drugs to Rollings, Coleman or Benedict.

      
      

   4. Kirk Carlson first made his allegation against Beach in October, 1977. This was after Carlson lost a personnel grievance brought by Beach against him and while Superintendent Benedict was the subject of a serious investigation in

      which he believed Beach was cooperating with the investigators. The policy of hiring unlicensed employees was changed over one year prior to the complaint by Carlson to the Florida State Board of Nursing and according to the testimony received no one alleged that Beach had given them any medication subsequent to the summer of 1976. During the period between 1976 and 1977, Beach was rated as an outstanding employee by Carlson and Benedict, although accordingly to their testimony, Benedict and Carlson were aware of the matters which subsequently became the basis of the complaint to the Florida State Board of Nursing.

      Subsequent to the complaint being filed with the Florida State Board of Nursing, Beach was discharged from her job upon the recommendation of Carlson and Benedict. These facts show that Carlson and Benedict had reason for seeking to discredit Beach and an anamosity toward her.

      
      

   5. In the summer of 1977, a female staff member at Lancaster Youth Development Center was physically attacked and raped at the facility. She was physically injured and was hysterical when brought to the infirmary. Before Beach administered valium to this woman, she called and obtained authority from Dr. Asa Godbey. Kirk Carlson was of the opinion that Beach erred in treating this staff member because she did not have a medical emergency as he interpreted the policy guidelines of the Department of Health and Rehabilitative Services.

      
      

      CONCLUSIONS OF LAW

      
      

   6. Based upon the presentation of the Board's case, the allegations of paragraph 1 relate to Sections 465.21(2)(b) through application of Section 464.21(1)(g); Chapter 893 through application of Section 464.21(1)(d) and 464.21(1)(b), Florida Statutes. Similarly, the factual allegations of paragraph

      2 relate to Section 464.24(1)(g) through application of Section 464.21(1)(g), and the factual allegations of paragraph 3 relate to Section 464.21(1)(b), Florida Statutes.

      
      

   7. Considering the allegations of paragraph 2, Section 464.24(1)(g), Florida Statutes, provides that it would be a violation for any person including a firm, association, or corporation to knowingly employ unlicensed persons in the practice of nursing. Taken in context, the statutory language refers to engaging the services of one or providing one with a job for a wage, not the utilization of an unlicensed individual in the practice of nursing. The facts are clear that the employer of the unlicensed persons at Lancaster Youth Development Center was the State of Florida. Therefore, Mrs. Beach did not violate Section 464.24(1)(g), Florida Statutes.

      
      

   8. Section 464.21(1)(b), Florida Statutes, prohibits unprofessional conduct. It is unprofessional conduct to leave medications unattended and unsecured. The facts show that Mrs. Beach did leave medications unsecured for a short period of time during the visit of the inspection team. However, the circumstances were such that Beach would have had to cease administering medications or advise the inspection team she could not take them on a tour.

      She could not do both and maintain security over the drugs. Although Beach did leave the medications unattended, the fact that the tour lasted no more than 15 minutes and she was continually obliged to return to the medication room to dispense drugs mitigates her breach of security. In addition, the testimony of many different witnesses revealed that Beach had taken the steps necessary to provide appropriate security for the drugs in the infirmary and that this specific incident was contrary to her general behavior and the guidelines which she had established for other members of the staff. The violation of Section 464.21(1)(b) was the direct result of the inspection team's desire to tour the facility at a very inopportune time and because of the minimal amount of time

      the drugs were left unsecured, this is primary a technical violation of the statute.

      
      

   9. The provisions of Section 465.21, Florida Statutes, are not applicable to Adeline Beach. There is nothing in the record to establish that there was a "pharmacy" at Lancaster Youth Development Center, and if there was, what class of pharmacy it was. Section 893.05(1), Florida Statutes, provides in pertinent part that practitioner (physician, dentist, osteopath, veterinarian, etc.) may prescribe, administer and dispense a controlled substance or cause the same to be administered by a licensed nurse. The standing orders issued by Dr. Kohler and Dr. Webber constitute direction to administer controlled substances as required by Section 893.05(1), Florida Statutes. Of the substances upon which admissible testimony was considered, none were identified as controlled substances and were shown to have been administered in a manner not covered by the standing orders.

RECOMMENDATION

There are factors in mitigation which should be considered in this case to include the following:

1. Carlson and Benedict had personal reasons for discrediting Beach and their actions show their anamosity toward her.

   
   

2. The events which constituted the majority of the charges against Beach happened over one year before the Report was made to the Florida State Board of Nursing by Carlson.

   
   

3. Beach worked at Lancaster Youth Development Center approximately seven years. She received good efficiency ratings for her employment from Carlson and Benedict for the period of time covered by the allegations relating to employment of unlicensed persons and unauthorized administration of medication, although, if their testimony is believed, they had knowledge of these matters.

   
   

4. The testimony of the witnesses is largely unsupported by any physical evidence with the exception of the testimony of Rollings, whose testimony was rejected because of the changes which she had made from her original statements.

   
   

5. Beach called and obtained authority to administer valium to a rape victim, who under any reasonable interpretation of the Department of Health and Rehabilitative Services policy, was entitled to treatment at the infirmary. Having sought authority to administer valium under these circumstances, it is difficult to conclude that she would have administered valium or any other prescription drug to Rollings or Campbell without obtaining authority.

Based upon the foregoing findings of fact, conclusions of law, and factors in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Adeline Beach.

DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire Florida State Board of Nursing 1107 Blackstone Building

Jacksonville, Florida 32202

Smith and Johnson Post Office Box 508

Gainesville, Florida 32602

Docket for Case No: 77-002066

Orders for Case No: 77-002066