Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. A transcript of the proceedings was filed and the parties have filed Proposed Findings of Fact and Conclusions of Law. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.
For Respondent: M. Catherine Lannon, Esquire
The issue as stated in the Prehearing Stipulation is whether Mr. Young's application for licensure as a Registered Respiratory Therapist should be granted.
During the hearing Mr. Young introduced into evidence Exhibits 1a, an employment evaluation dated January 26, 1987; Exhibit 1(c), an employee performance appraisal from ITS Career Institute dated October 1, 1984; Exhibit 3, copies of drug test results for Mr. Young dated December 15, 1986, and September 10, 1987, from Dr. Joel Shapiro; and Exhibit 5, a report of a psychological evaluation of Mr. Young performed by Arthur T. Stillman, M.D., which had been done at the request of the Advisory Council on Respiratory Care. Exhibit 1b, an employment evaluation dated September 10, 1985, was withdrawn.
Exhibit 2, a petition signed by students and coworkers of Mr. Young at Flagler Career Institute, was rejected. Exhibit 4 was an affidavit of Jose Fernandez regarding the circumstances surrounding Mr. Young's termination from employment at Coral Reef General Hospital. Although the affidavit is generally corroborative of Mr. Young's testimony, there is no way for the Advisory Council to cross-examine an affidavit. An affidavit on such an important issue as whether Mr. Young was terminated from employment for drug addiction is not the
kind of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs and is not evidence admissible under Section 120.58(1)(a), Florida Statutes (1985).
The Advisory Council on Respiratory Care offered into evidence a copy of the application file of Mr. Young for licensure as a respiratory care practitioner from its records under the signature of the Executive Director of the Council, Marcelle Flanagan. There was objection to some of the documents contained under that certification as constituting hearsay. The objectionable documents were attached to a letter dated November 19, 1986, from Donella C. Smith, Director of Human Resources at Coral Reef Hospital, to Chris Pope, Administrative Assistant, Advisory Council on Respiratory Care. Attached to the letter are what appear to be xeroxed copies of microfilm records of the hospital relating to Mr. Young. One of those records is a "contact report" dated 1/6/83, signed by Mr. Young. Mr. Young identified his signature on that document during the hearing (Tr. 75). As a result of that identification, that document was admitted despite the hearsay objection. With respect to the other documents attached to the letter from Donella C. Smith, they constitute hearsay not covered by any exception to the hearsay rule. The Board argues that they are admissible as public records because they were sent to the Board and formed part of its records. If they were offered only to show that they were part of the records of the Board, they might be admissible. They are being offered, however, for the truth of the matter asserted in the records. They are not admissible for that purpose. There is no competent evidence that the records are business records of Coral Reef Hospital. To show that, the Advisory Council on Respiratory Care would have been required to produce some custodian or other person familiar with the records of Coral Reef Hospital who could have established the necessary elements to bring those documents within the business records exceptions of the hearsay rule found in Section 90.803(6)(a), Florida Statutes, i.e. that the records were made at or near the time of the events recorded, by or from information transmitted by a person with knowledge, kept in the normal course of a regularly conducted business activity where it was the regular practice of that business to make such a report. In National Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972), the Court refused to admit a certificate signed by a doctor who did not testify at the trial which indicated that the operator of a tractor-trailer involved in a traffic accident was physically qualified on the date of the exam to drive a motor vehicle in interstate commerce. The certificate was in records of the driver's employer and was offered as part of the employer's business records. The trial judge admitted the certificate, but the Court of Appeals reversed, stating:
The question here is whether the document was within the business records exception, (and thus competent evidence to prove the truth of its content) by virtue of the fact that it was part of the business records of the plaintiff's employer. We think not.
Otherwise, every letter which plaintiff's employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents. Little reflection is needed to conclude that such a result would be totally intolerable and is neither the intent nor within the scope and purpose of the statute. 269 So.2d at 413.
With the exception of the document signed by Mr. Young, the papers from the microfilm file of Coral Reef Hospital suffer from the same problem. The fact that they were sent, for some reason, to the Advisory Council on Respiratory Care and found their way into its records does not relieve the Advisory Council from the duty to qualify them as business records of the hospital in order to have those records admitted into evidence.
Mr. Young has been employed full-time in the field of respiratory care since 1977. He completed training as a respiratory therapy technician at Miami Dade Community College in December, 1977.
Mr. Young completed the registry examination of the National Board for Respiratory Care in December, 1985, and became a Registered Respiratory Therapist. This professional title can be somewhat confusing, however, because under the Respiratory Care Act, Section 468.35, Florida Statutes, et seq., it is necessary to apply for registration with the Advisory Council on Respiratory Care to practice as a respiratory therapist. Mr. Young's application for registration as a statutory respiratory therapist by endorsement under Section 468.358(2), Florida Statutes, has given rise to this proceeding.
Mr. Young's application for statutory registration was made in June of 1986. The Advisory Council on Respiratory Care issued a Notice of Intent to Deny the application on February 19, 1987, on the grounds that
Applicant falsified the reason for termination of employment on his application. Applicant was terminated for being addicted to pain medication and forging prescriptions. See Section 468.365(1)(a), (g), (x), and 468.365(2), Florida Statutes. Applicant is denied without prejudice to reapply for licensure in two years.
It is undisputed that Mr. Young meets the education and training requirements for registration as a statutory respiratory therapist.
Mr. Young sought a hearing on this denial and in the prehearing stipulation the parties agree the issues of fact are whether Mr. Young's application contained false information amounting to fraudulent misrepresentation, whether he is chemically dependent, and whether his past conduct is cognizable under Section 368.365(1)(g), Florida Statutes.
Question 5 on page 3 of the application submitted by Mr. Young, for registration by endorsement as a respiratory therapist, asks
Have you ever been terminated, disciplined or allowed to resign from any employment setting where you were employed to deliver respiratory care services? Yes No
If "yes", give name of employer or institution, date and reason for such action.
Mr. Young answered "yes" and gave as his response "Coral Reef Hospital, January 7, 1983, Seizure Disorder." On the same page of the application Mr. Young
stated that he had been addicted to or excessively used alcohol, narcotics, barbiturates or other medication and that he had been treated at South Miami Hospital Addiction Treatment Center.
In a letter which Mr. Young wrote to the Advisory Council on September 27, 1986, he stated
On March 27, 1981, I was admitted to South Miami Hospital Addiction Treatment Program for chemical dependency. I was instructed to attend aftercare for one year. I attended two (2) months of aftercare and stopped. It was at this time I changed jobs and began to work at Coral Reef Hospital. I did however attend Alcoholics Anonymous meetings in South Miami area twice a month.
In December of 1982 I had a grand mal seizure due to medication that I was taking. The medication contained Codine. I was admitted to Coral Reef Hospital January 1, 1983 and evaluated for seizure disorder. I was under the care of Dr. Timothy Grant, a Nurologist. I was placed on Dilantin for two (2) years.
After I was released from the hospital I was terminated. From what I now/still understand I was terminated as a "high risk.
Mr. Young's account is literally true with respect to the grand mal seizure he suffered, but his version is so shaded in his favor as to be seriously misleading. His explanation that he was terminated from employment because he was a "high risk" is partly true. To fully explain the situation it is necessary to go back to the beginning of Mr. Young's chemical dependency.
In 1980 Mr. Young had a laminectomy and was given Percodan for pain control. At this time he had been working at South Miami Hospital. Mr. Young became addicted to Percodan, and began going from physician to physician in order to get Percodan prescriptions. Eventually, his supervisor at South Miami Hospital directed him to the hospital's addiction treatment program where he spent 21 days in inpatient care. The program calls for one year of participation in an aftercare program. After he left the inpatient care, he participated in aftercare for no more than four months, but was drug-free.
He thereafter had the opportunity to take a better job at Coral Reef Hospital where he began employment in September 1, 1981. He then developed an upper respiratory infection in the summer of 1982 and his physician prescribed Actifed with Codine. He then began the addiction cycle again, and went to different physicians to get Actifed with Codine from them. In addition, he forged prescriptions on a prescription pad to which he had access at Coral Reef Hospital for Actifed with Codine, but listed the prescription in the name of his wife and his daughter. As the result of the Codine he was taking, either due directly to the Codine, or to the activation of some underlying seizure disorder, Mr. Young had a grand mal seizure December 24, 1982, for which he was treated in the hospital emergency room, and another on December 31, 1982, which led to his hospitalization for a seven- day evaluation. He was given Dilantin for seizure control after the second seizure on December 31, 1982. Mr. Young no longer took the Dilantin after about June of 1983.
After the December, 1982, seizures Mr. Young began attending Alcoholics Anonymous on a regular basis, i.e. about twice a month, and has regularly attended those meetings since that time. He attended Alcoholics Anonymous meetings because he was more comfortable there than at Narcotics Anonymous, although these self-help programs are almost identical.
Returning to Mr. Young's September 26, 1986, letter to the Council, it was seriously misleading to inform the Advisory Council that he had the grand mal seizure in December of 1982 "due to medication that I was taking." Mr. Young did not merely suffer an adverse reaction to over-the-counter medication or something prescribed by his physician, but as the result of physician shopping, and forging prescriptions accessible to him at the hospital where he worked to obtain preparations containing Codine. Moreover, immediately after he was released from the hospital following the second seizure, he was terminated from his position at Coral Reef Hospital. The hospital's record, which he signed, shows a supervisory contact for
Use of controlled substances which were not prescribed by a physician. This potential abuse could have been a contributing factor to two syncopal episodes (12/24, 12/31) had while on duty at the hospital.
Mr. Young was terminated the same day. It is clear that Mr. Young was not only terminated for the seizures which interfered with his ability to perform his duties as a respiratory therapist, but also for forging prescriptions for controlled substances. Mr. Young's contention that he did not know his termination was based on the illicit use of controlled substances cannot be credited.
Mr. Young has had two bouts of chemical dependency, the first resulting from addiction to Percodan in 1980 which led to his treatment at South Miami Hospital where he did not complete the aftercare program, and the second resulting from addiction to Actifed with Codine in the second half of 1982, which he had dealt with by attending Alcoholics Anonymous meetings approximately every other week, but at least twice a month.
The testimony of Dr. Roger Goetz for the Advisory Council on Respiratory Care concerning the need for a highly controlled aftercare program for persons to continue practicing health care professions was generally persuasive. After the completion of an inpatient program for drug dependency, the practitioner must complete an extended care program and continue a period of monitoring. Participation in Alcoholics Anonymous or Narcotics Anonymous, while valuable, is not comparable to a structured aftercare program because those programs involve no - monitoring. Indeed, it is against the philosophies of those programs to monitor participants. Health care practitioners are at particularly high risk for relapse into drug dependency because they are surrounded by and have access to drugs in hospital settings and their jobs involve high levels of stress. Particularly, respiratory care practitioners are subject to stress because they are often the only persons on duty in intensive care wards, and they have access to drugs in critical care areas of the hospital.
Although Mr. Young did introduce into evidence two drug screenings, there is no indication whether they were announced or unannounced, or whether the collection of the urine sample was witnessed. Two drug screenings performed
over a four-month period is insufficient evidence to determine whether the person is drug free. Moreover, for a person to succeed in long-term recovery, the person should attend at least two meetings of an organization such as Alcoholics Anonymous or other aftercare program each week. Attending one or two meetings a month as Mr. Young has done is "skating on very thin ice" (Tr. 118).
The report of the psychiatric evaluation performed by Arthur T. Stillman, M.D., a diplomate of the American Board of Psychiatry, is entitled to little weight. Dr. Stillman did not testify, and it is impossible to determine the accuracy of the information contained in his report, since he was not subject to cross-examination.
Similarly, testimony of Gloria Gross does not play an important part in the evaluation of Mr. Young's ability to practice respiratory therapy safely. While he may have been a good employee while a teacher of respiratory care services at Flagler Career Institute since September, 1983, and may generally have a good reputation in the community, that provides very little in the way of predicting whether Mr. Young will be able to deliver respiratory care services with reasonable skill and safety to patients due to Mr. Young's history of addictions.
CONCLUSIONS OF LAW
In this licensure proceeding, the burden is on Mr. Young to establish his entitlement to a license. Rule 28-6.008, Florida Administrative Code. The Advisory Council on Respiratory Care, on behalf of the Board of Medicine, may deny an application for registration of a person guilty of any of the matters set forth in Section 468.365(1), Florida Statutes. The relevant subsections of that statute prohibit
Procuring, attempting to procure,
or renewing a certificate of registration as provided by this part by bribery, by fraudulent misrepresentation, or through
an error of the department or board.
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(g) Engaging or attempting to engage in the possession, sale, or distribution of controlled substances, as set forth by law, for any purpose other than a legitimate purpose.
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(x) Being unable to deliver respiratory care services with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material as a result of any mental or physical condition...
The failure of Mr. Young to provide a forthright explanation to the licensing authorities of his periods of addiction to Percodan and to Codine rises to the level of fraudulent misrepresentation.
Mr. Young certainly engaged in the possession of a controlled substance for other than the legitimate purpose when he forged prescriptions for himself in the names of his wife and daughter to obtain Actifed with Codine.
Given his failure to have completed an aftercare program after his addiction to Percodan, and regular but relatively infrequent attendance at AA meetings, it is not possible to say with reasonable certainty that Mr. Young will be able to deliver respiratory care services with reasonable skill and safety due to his history of addiction. This is not to say that evidence tending to show that he has been drug free since January, 1983, is not significant. If he takes part in a structured aftercare program, including monitoring, he should be eligible for to reapply licensure within one year.
