STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3689

) KEITH A. KLAUSNER, R.T., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on September 5, 1996, in Ocala, Florida.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Keith A. Klausner

1725 Springlake Road

Fruitland Park, Florida 34731 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, at times pertinent hereto, was unable to practice respiratory therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, or other substances, or as a result of any mental or physical condition, in alleged violation of Section 468.365(1)(x), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the issuance of an Administrative Complaint on June 19, 1996 by the above-named Petitioner agency. The agency seeks to discipline the respiratory therapy license of the Respondent for allegedly being unable to practice with reasonable skill and safety to patients, in essence, by reason of the use of drugs, in alleged violation of Section 468.365(1)(x), Florida Statutes. The Respondent denied the allegations of the Administrative Complaint and timely requested a formal proceeding. The case was duly transmitted to the Division of Administrative Hearings and the undersigned Administrative Law Judge and was scheduled for formal hearing on September 5, 1996.

The cause came on for hearing as noticed. The Petitioner presented the testimony of five witnesses, including the expert testimony of Roger A. Goetz,

1. and Kenneth Thompson, M.D., as well as the testimony of three fact witnesses, Scott Smith, Clarence Davis and Kathy Redfearn. Additionally, the testimony of another fact witness, M. Robin Mitchell, was presented by deposition. The Petitioner offered two exhibits, both of which were admitted into evidence.

   
   

   The Respondent presented the testimony of two witnesses, that of himself and his wife, Donna Klausner. The Respondent offered two exhibits, both of which were admitted into evidence.

   
   

   Upon conclusion of the proceeding, the parties expressed a desire to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those documents have been considered in the rendition of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes.

      
      

   2. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996.

      
      

   3. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned.

      
      

   4. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination.

      
      

   5. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH.

   6. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida.

      
      

   7. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant.

      
      

   8. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis.

      
      

   9. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out."

      
      

   10. During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis.

       
       

   11. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine.

       
       

   12. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public.

       
       

   13. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment.

       
       

   14. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the

       Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz.

       
       

   15. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine.

       
       

   16. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment.

       
       

   17. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program.

       
       

   18. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment.

       
       

   19. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

       
       

   21. Section 468.365(1), Florida Statutes, provides as follows:

       
       

       1. The following acts constitute grounds for which the disciplinary actions in sub- section (2) may be taken: . . .

          (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 the examination shall be borne by the certificate holder or the 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 allegations against him, upon which a default in 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 prac- titioner 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.

          
          

       2. If 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. Denial of an application for certificate or registration.

          2. Revocation or suspension of certificate or registration.

          3. Imposition of an administrative fine not to exceed $1,000.00 for each count or separate offense.

          4. Placement of the respiratory care prac- titioner or respiratory therapist on probation for such period of time and subject to such conditions as the Board may specify, including requiring the respiratory care practitioner or respiratory therapist to submit to treatment, to attend continuing education courses, or to

             work under the supervision of another respiratory care practitioner or respiratory therapist.

          5. Issuance of a Reprimand.

             
             

       3. The Board shall not reinstate certification or registration, or cause a certificate or registration to be issued to a person it has deemed unqualified, until such time as it is satisfied that such person has complied with all the terms and conditions set forth in the final order and that the respiratory care practitioner or respiratory therapist is capable of safely

          engaging in the delivery of respiratory care services.

          
          

   22. In a disciplinary action, such as is involved in this proceeding, the burden is on the Petitioner agency to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove those allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d

       292 (Fla. 1987). The Petitioner in this proceeding has proven, by clear and convincing evidence, that the Respondent violated Section 468.365(1)(x), Florida Statutes, by being unable to practice respiratory therapy with reasonable skill and safety to patients by reason of illness or addiction to the use of drugs, narcotics, or chemicals.

       
       

   23. It has also been established that the Respondent has had an exemplary record in his practice as a respiratory therapist in terms of the skill and competency with which he cares for patients. This was the uniform testimony of the supervisors of his practice who testified at the hearing. If the Respondent sees fit to seriously and thoroughly rid himself of his chemical dependency through objective and cooperative participation in and completion of a treatment and rehabilitation program, such as that administered by the PRN, there is a substantial likelihood that he can return to unfettered professional practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency.

DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.

COPIES FURNISHED:

Britt Thomas, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Keith A. Klausner 1725 Springlake Road

Fruitland Park, Florida 34731

Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003689

Orders for Case No: 96-003689