STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6939

)

FAITH A. CIFUENTES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 30, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: Natalie Dugid, Esquire

Staff Attorney

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Faith A. Cifuentes, pro se

5625 West 20th Avenue, Number 105

Hialeah, Florida 33012 STATEMENT OF THE ISSUES

Whether Respondent, a registered nurse licensed by the Petitioner, committed the offenses set forth in the Amended Administrative Complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

The Amended Administrative Complaint filed against Respondent alleged certain facts and asserted that Respondent had violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients by reason or use of alcohol or any mental or physical condition. Respondent denied the allegations of the Amended Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner called five witnesses, four of whom were records custodians. The fifth witness was Dr. Kenneth W. Thompson, who was accepted as an expert witness in the field of addiction medicine. Petitioner presented six exhibits, each of which was accepted into evidence. Respondent did not offer any exhibit or any witness.

At the close of the formal hearing, the Petitioner's counsel requested a few days to determine whether her client would authorize her to order a transcript of the proceedings. Thereafter, counsel for Petitioner advised that no transcript would be ordered. Based on that information, the deadline for filing post-hearing submissions was set for September 22, 1995. The proposed findings of fact submitted by the Petitioner are adopted in material part by the Recommended Order. The Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner, the Agency for Health Care Administration, is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Chapters 455 and 464, Florida Statutes.

   
   

2. At all times pertinent to this proceeding Respondent has been a licensed Registered Nurse, having been issued license number RN 1730452.

   
   

3. On July 26, 1993, Respondent was admitted to Palmetto General Hospital where she was given a blood alcohol test. The tests revealed that she had a blood alcohol level of 0.317. The medical records maintained in the regular course of its business reflected that Respondent was diagnosed by Dr. Samuel Pinosky as suffering from depression and alcohol dependency. 1/

   
   

4. On July 29, 1993, Respondent was referred to the Intervention Project for Nurses (IPN), an organization that provides assistance to nurses who suffer from addiction.

   
   

5. Respondent refused to cooperate with the IPN and stopped attending meetings during August of 1993.

   
   

6. On October 29, 1993, Dr. Pinosky noted in his progress notes that he had seen Respondent and that she has "poor insight into [her] alcoholism" and that her "control issues" were evident.

   
   

7. Respondent was subsequently evaluated by Dr. John Eustace, the medical director for the Addiction Treatment Program at Mount Sinai Medical Center of Greater Miami. As of December 10, 1993, Dr. Eustace was of the opinion that Respondent suffered from active alcohol abuse and that she was a potential danger to the nursing profession and to patients whom she might serve. Dr. Eustace noted that Respondent was resistant to usual alcohol rehabilitation treatment modalities.

   
   

8. On or about December 29, 1993, Respondent was evaluated by Dr. Stephen Kahn, a psychiatrist and addicitionalist. Dr. Kahn prepared a report based on his evaluation and history of the Respondent. His report, dated January 10, 1993 (sic), 2/ provided, in pertinent part, as follows:

   
   

   Ms. Cifuentes presents a very interesting picture, in that she has a history of psychotic episodes over a nine year period, and functioned very little for almost 15 years, and now [has] what appears to be a somewhat long standing, but more recently quite florid, alcoholism. She shows no sign of any psychotic symptomatology at this time, but her mood is clearly very labile. She clearly suffers addiction to alcohol, and

   although she has some insight into this disease, she is also in a considerable amount of denial. Emotionally, she has not accepted this disease, and clearly does not want to look at this any longer. Given her degree of denial, and her emotional instability, exacerbated by the recent loss of her husband in a plane accident, the prognosis is not good. . . . [S]he is a high risk candidate to relapse. I do not believe it would be safe for this woman to practice nursing without further therapy geared toward recovery from addiction with possible psychiatric intervention as necessary.

   
   

9. Kenneth W. Thompson, M.D., was accepted as an expert witness in the field of addiction medicine. Dr. Thompson testified without contradiction that alcoholism is a disease that requires treatment. There was no evidence that Respondent has accepted the offers of treatment that have been made to her by the IPN or that she has otherwise sought or received treatment for her alcoholism. Dr. Thompson opined with reasonable medical certainty that the Respondent is unsafe to practice nursing due to her alcoholism and due to mental illness. Dr. Thompson's opinions are consistent with the uncontradicted evidence in this proceeding.

   
   

10. Based on the record of this proceeding, it is found that Respondent is unsafe to practice nursing.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. Section 464.018(1)(j), Florida Statutes, provides the following grounds for disciplining nurses such as Respondent:

    
    

    (j) Being unable to practice nursing with reasonable skill and safety to patients by reason of . . . use of alcohol . . . or as a result of any mental or physical condition. . . .

    
    

13. Section 464.018(2) and (3), Florida Statutes, provides that the Petitioner may impose the following range of penalties in disciplining nurses:

    
    

    1. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify to the department an applicant for licensure;

       2. Revocation or suspension of a license with reinstatement subject to the provisions of subsection (3).

       3. Permanent revocation of a license.

       4. Restriction of practice.

       5. Imposition of an administrative fine not

          to exceed $1,000 for each count or separate offense.

       6. Issuance of a reprimand.

       7. Placement of the nurse on Probation for a period of time and subject to such conditions as

          the board may specify, including requiring the nurse to submit to treatment, to attend continuing education courses, to take an examination, or to work under the supervision of another nurse.

          
          

    2. The board shall not reinstate the license of

       a nurse, or cause a license to be issued to a person it has deemed unqualified, until such time as it is satisfied that such person has complied with all terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of nursing.

       
       

14. Pursuant to Section 464.018(5), Florida Statutes, the Petitioner has adopted disciplinary guidelines pertinent to this proceeding. Rule 59S-8.006, Florida Administrative Code, provides guidelines for a violation of Section 464.018(1)(j), Florida Statutes. Because Respondent is not in the IPN program, the following guideline would apply:

    
    

    Suspend for time certain to show continuous sobriety and until proof of safety to practice, fine from $250-$1,000 prior to reinstatement followed by probation with conditions or IPN participation.

    
    

15. The recommendation that follows deviates from the foregoing guideline because of the Respondent's prior refusal to cooperate with the IPN, her medical history of a long-standing mental illness, and her denial of her alcoholism. Because of the obvious adverse financial impacts her alcoholism and her mental illness have had, it is recommended that no administrative fine be levied against the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes the licensure

of the Respondent, requires the IPN to provide her services if she requests assistance, and provides for reinstatement of her licensure on appropriate terms and conditions upon proof that she can safely practice.

DONE AND ENTERED this 10th day of October 1995 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995.

ENDNOTES

1/ Hospital records are admissible pursuant to Section 90.803(6)(a), Florida Statutes. The opinions of the doctors who treated Respondent set forth in the medical records are admissible pursuant to Section 90.803(6)(b), Florida Statutes. See, also, Ehrhardt, Florida Evidence, Section 803.6(a) (1995 Edition).

2/ The undersigned construes the date of January 10, 1993, to be a typographical error since the date of the evaluation was December 29, 1993. The undersigned has assumed that the correct date is January 10, 1994.

COPIES FURNISHED:

Natalie Duguid, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399

Faith A. Cifuentes

5625 West 20th Avenue #105

Hialeah, Florida 33012

Judie Ritter, Executive Director Board of Nursing

Daniel Building, Room 50

111 East Coastline Drive Jacksonville, Florida 32202

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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 contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-006939

Orders for Case No: 94-006939