STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4897

)

EILEEN F. ROWAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard by telephone before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 30, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Randolph P. Collette, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Eileen F. Rowan, pro se

2821 Leidy Road

Gilbertville, Pennsylvania 19525 STATEMENT OF THE ISSUES

The issue is whether respondent's license as a respiratory therapist should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on July 1, 1992, when petitioner, Department of Professional Regulation, Board of Medicine, issued an administrative complaint charging respondent, Eileen F. Rowan, a licensed respiratory therapist, with having violated two provisions within Subsection 468.365(1), Florida Statutes (1991). More specifically, the complaint alleged generally that on October 19, 1991, respondent's license was placed on five years' probation for possessing unlawful drugs, and that she has subsequently violated her probation by failing to satisfactorily comply with the Board-ordered practice plan and involvement with the Physicians Recovery Network. It also alleges that because respondent has continued using drugs while practicing respiratory therapy she is guilty of being unable to deliver respiratory care services with reasonable skill and safety to patients by reason of such use. Respondent disputed the above allegations and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on August 10, 1992, with a request that a hearing officer be assigned to conduct a formal hearing. By

notice of hearing dated August 13, 1992, and with the agreement of the parties, a final hearing was scheduled by telephone on September 1, 1992. At petitioner's request, the hearing was rescheduled to September 30, 1992.

At final hearing, petitioner presented the testimony of Cathy C. Redfearn, a DPR investigator, Dr. Kenneth W. Thompson, accepted as an expert in addictive medicine, and Dr. Roger A. Goetz, accepted as an expert in addictive medicine. It also offered petitioner's exhibits 1-15. All exhibits were received in evidence. Exhibit 15 is the deposition of Dr. William Amos, Jr., technical manager in charge of forensic urine drug testing for SmithKline Beecham Clinical Laboratories, and accepted as an expert in toxicology. Respondent testified on her own behalf and offered respondent's exhibits 1-6. All exhibits were received in evidence.

The transcript of the hearing was filed on October 8, 1992. Proposed findings of fact and conclusions of law were filed by petitioner on October 16, 1992. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based on all of the evidence, the following findings of fact are determined.

1. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania.

   
   

2. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety.

   
   

3. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing.

   
   

4. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991.

5. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening.

   
   

6. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract.

   
   

7. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results.

   
   

8. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding.

   
   

9. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals.

   
   

10. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure

    meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

12. Since respondent's license as a professional is at risk, petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true.

    
    

13. Subsection 468.365(1), Florida Statutes (1991), authorizes the Board to discipline a licensee for certain misconduct. As is relevant here, disciplinary action is warranted for the following acts:

    
    

    1. Willfully or repeatedly violating a rule of the board or the department or a lawful order of the board or department previously entered in a disciplinary hearing.

       (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. In enforcing this paragraph, the department shall, upon probable cause, have authority to compel a respiratory care practitioner or respiratory therapist to submit to a mental or physical examination by physicians designated by the department. The cost of examination shall be borne by the certificate holder or registrant being examined. The failure of a respiratory care practitioner or respiratory therapist to submit to such an examination when so directed constitutes an admission of the allegations against him, upon which a default and a final order may be entered without the taking of testimony or presentation of evidence, unless the failure was due to circumstances beyond his control. A respiratory care practitioner or respiratory therapist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent delivery of respiratory care services with reasonable skill and safety to his patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a respiratory care practitioner or respiratory therapist in any other proceeding.

14. By clear and convincing evidence, petitioner has established that respondent was in violation of a lawful order of the Board and therefore was in violation of Subsection 468.365(1)(i), Florida Statutes. The evidence also establishes that as of May 1992 respondent was unable to safely deliver respiratory care services with reasonable skill and safety by reason of use of chemicals as proscribed by Subsection 468.365(1)(x), Florida Statutes. Therefore, the charges in the complaint have been sustained.

    
    

15. Rule 21M-37.001, Florida Administrative Code, provides a range of penalties to be applied upon a determination that a licensee has violated a statute. They include "denial of an application, revocation, suspension, probation, reprimand, and a fine" and are to be applied in the case of any statutory violation. In addition, the same rule provides that the Board shall take into account certain mitigating or aggravating circumstances in determining the severity of the penalty. These include the severity of the offense, the danger to the public, the number of repetitions of offenses, the length of time since the date of the violation, the number of previous disciplinary cases filed against the licensee, the length of time the licensee has practiced, the actual damage, physical or otherwise, to the patient, the deterrent effect of the penalty imposed, the effect of the penalty upon the certificate holder's or registrant's livelihood, and any efforts for rehabilitation.

    
    

16. Given the aggravating and mitigating circumstances herein, as discussed in finding of fact 10, it is respectively recommended that respondent's current probationary terms and conditions, as contained in the order of October 19, 1991, be extended for an additional year. See, e.g., Major

1. Department of Professional Regulation, Board of Medicine, 531 So.2d 411 (Fla. 3d DCA 1988)(extension of existing probationary period for three years appropriate where licensee found to be impaired by virtue of continued alcohol and marijuana dependance). Subject to such terms and conditions as the Board may deem appropriate, respondent should also be allowed to resume her profession on a probationary basis. In making this recommendation, the undersigned has recognized the fact that respondent has steadfastly denied any wrongdoing. However, her conduct in defending this action should not be a factor in determining the severity of a penalty. Bernal v. Department of Professional Regulation, Board of Medicine, 517 So.2d 113, 115 (Fla. 3d DCA 1987).

   
   

   RECOMMENDATION

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in

   violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year.

   Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession.

   DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida.

   
   

   
   

   DONALD R. ALEXANDER

   Hearing Officer

   Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, FL 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.

   
   

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897

   
   

   Petitioner:

   
   

   1.	Partially accepted in finding	of	fact	1.
   2-3.	Partially accepted in finding	of	fact	2.
   4.	Partially accepted in finding	of	fact	3.
   5-9.	Partially accepted in finding	of	fact	4.
   10.	Rejected as being unnecessary.
   11-12.	Partially accepted in finding	of	fact	5.
   13.	Rejected as being unnecessary.
   14-16.	Partially accepted in finding	of	fact	6.
   17-20.	Partially accepted in finding	of	fact	7.
   21.	Partially accepted in finding	of	fact	8.
   22-23.	Rejected as being unnecessary.
   24.	Partially accepted in finding	of	fact	8.
   25-35.	Partially accepted in finding	of	fact	7.
   36.	Partially accepted in finding	of	fact	8.
   37-38.	Partially accepted in finding	of	fact	9.

   
   

   Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence.

   
   

   COPIES FURNISHED:

   
   

   Dorothy J. Faircloth Executive Director Board of Medicine

   1940 North Monroe Street Tallahassee, Florida 32399-0770

   
   

   Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

   Tallahassee, Florida 32399-0792

   Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60

   Tallahassee, Florida 32399-0792

   
   

   Ms. Eileen F. Rowan 2821 Leidy Road

   Gilbertville, Pennsylvania 19525

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE BOARD OF MEDICINE WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE BOARD OF MEDICINE CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

   
   

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   DPR CASE NUMBER: 92-06568

   vs. DOAH CASE NUMBER: 92-4897

   LICENSE NUMBER: RT 0001346

   EILEEN ROWAN, R.T.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 4, 1992, in Orlando, Florida, for the purpose of considering the Hearing Officer's Recommended Order and Petitioner's Motion to Increase Penalty (copies of which are attached hereto as Exhibits A and B, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was duly notified of the hearing and was not present.

   
   

   Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

   FINDINGS OF FACT

   
   

   1. Paragraph 8 of the Findings of Fact is corrected to reflect that the Secretary of the Department of Professional Regulation suspended respondent's license on an emergency basis. See Section 455.225(8), F.S. All other findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

      
      

   2. There is competent substantial evidence to support the findings of facts adopted by the Board.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

PENALTY

Upon a complete review of the record in this case, the Board determines

that the penalty recommended by the Hearing Officer be rejected as inappropriate in light of the record evidence of her continuing noncompliance with her recovery program (R 187-189). WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

Respondent's license to practice respiratory therapy in the State of Florida is REVOKED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 21st day of December, 1992.

BOARD OF MEDICINE

JAMES N. BURT, M.D. VICE CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Eileen Rowan, R.T., 5821 Leidy Road, Gilbertsville, PA 19525, by U.S. Mail to Donald R. Alexander, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry

G. McPherson, Jr., Chief Medical Attorney, Department of Professional

Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this day of , 1992

(filed Final Order undated)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, 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 PROFESSIONAL REGULATION 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.

Docket for Case No: 92-004897

Orders for Case No: 92-004897