STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA B. MCCALL, )

)

Petitioner, )

)

vs. ) Case No. 98-0470

)

DEPARTMENT OF HEALTH, BOARD )

OF NURSING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 22, 2000, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Rebecca McCall, pro se

2185 North Yarnallton Pike Lexington, Kentucky 40511-9087

For Respondent: Lee Ann Gustafson, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

Whether Petitioner's nursing license should be reinstated.

PRELIMINARY STATEMENT

In 1997 Petitioner filed a fourth request for reinstatement of her nursing license. The Board of Nursing denied

Petitioner's request for reinstatement by its Order on Petition for Reinstatement No. DOH 97-0450, filed December 23, 1997.

However, the Board did condition any future reinstatement of Petitioner's license on her participation in the Intervention Project for Nurses (IPN).

Upon the Board's denial, Petitioner filed a Petition for Formal Hearing. The petition alleged that Petitioner is able to practice clinical nursing, that the Board's refusal to reinstate Petitioner's license was based upon her participation in methadone maintenance treatment for her drug addiction, and that either no conditions should be imposed by the Board or that the Board should impose conditions other than participation in IPN.

At the hearing, Petitioner testified on her own behalf and submitted one exhibit into evidence. Respondent presented four witnesses and submitted 16 exhibits into evidence, including the deposition of Dr. Michael Sheehan.

After the hearing, the parties submitted proposed recommended orders on July 21, 2000. Additionally, on August 8, 2000, the Board filed a Motion to Dismiss For Mootness. The Board's Motion was based on the fact that, during the pendency of this proceeding, Petitioner's license had fallen into delinquency for non-payment of her license renewal fees and thereafter become null and void.

A telephonic evidentiary hearing was scheduled for August 28, 2000. However, due to technical difficulties with the telephone conferencing system which prevented all the parties from participating simultaneously in the telephone conference call, the telephonic evidentiary hearing was rescheduled for September 25, 2000.

All parties were able to participate in the reconvened telephone hearing. Petitioner testified in her own behalf and submitted one composite exhibit. The Board presented the testimony of one witness and stipulated that Petitioner had not received written notice that her license had become delinquent or that her license had become null and void.

After the telephone hearing, the Petitioner and Respondent submitted proposed orders on the issue raised in the Motion to Dismiss on October 3, 2000 and October 2, 2000, respectively.

The issues raised in the Motion to Dismiss are discussed in this Recommended Order.

FINDINGS OF FACT

1. Petitioner was first licensed as a registered nurse on March 28, 1977. Throughout, Petitioner has renewed her license by paying her bi-annual license fees. Petitioner's renewals have included times when her license was suspended. At the time of the hearing, Petitioner's license was active but suspended. The license was also delinquent for Petitioner's failure to pay

   her 1998 bi-annual renewal fees. The license was not inactive. Since the hearing, Petitioner's license has been nullified.

2. In her teens, Respondent suffered a serious and permanent injury to her neck and back in an automobile accident. The injury caused and still causes chronic pain, including migraines and neck pain. Because of her pain, Petitioner was prescribed opiates in her teens. By her twenties, Petitioner was addicted to those opiates. Petitioner's drugs of choice were Demerol and Dilaudid. She has been advised that her neck pain will get worse over time.

3. Subsequent to Petitioner's initial licensure, Petitioner accumulated an extensive criminal history related to her drug use. Her criminal history includes petty larceny, attempting to obtain dilaudid by fraud, attempting to obtain a controlled substance by fraud, possession of a controlled substance, smuggling drugs into a prison, and smuggling drugs into a rehabilitation facility.

4. On April 15, 1977, less than a month after her initial licensure, the Department of Professional and Occupational Regulation filed an Administrative Complaint against Petitioner (DOAH Case No. 77-0782), which alleged that Petitioner forged four prescriptions for a controlled substance and that Petitioner admitted to abusing Demerol. Following a hearing on the Administrative Complaint, the Hearing Officer found

   Petitioner in violation of Sections 464.21(1)(b) - unprofessional conduct, (c) - habitual intemperance or addiction to the use of controlled substances (d) - engaging in the possession of controlled substances for other than legitimate purposes, (f) - exhibiting behavior which the board has reason to believe is due to poor physical or mental health and which creates an undue risk that the person would cause harm, and (g)

   - willfully or repeatedly violating any of the provisions of Chapter 464, or the laws of this state, Florida Statutes (1977). Upon consideration of the Recommended Order, the Board entered an Order revoking Petitioner's license on August 27, 1977.

5. On August 6, 1980, the Board considered Petitioner's first application for reinstatement of her license. The Board denied reinstatement until Petitioner appeared before the Board and documented her present fitness to safely engage in the practice of nursing.

6. On December 4, 1981, the Board considered Petitioner's second application for reinstatement. Petitioner appeared before the Board and submitted a psychological evaluation and supporting correspondence attesting to her rehabilitation. The Board reinstated Petitioner's license on two years' probation. The probationary terms included random blood and urine drug screens, continued rehabilitation counseling with periodic

   progress reports, and quarterly employee reports. The IPN had not been created at that time.

7. On October 14, 1983, Petitioner executed a Petition For and Notice of Voluntary Relinquishment of License pursuant to Case Nos. 0022916, 0024200, 0028839, and 0031766. Petitioner relinquished her license in the face of charges for allegedly being on duty while under the influence of drugs, introducing controlled substances into a correctional or penal institution by possession of controlled substances, abandoning patients, failing to obey a lawful order of the Board, and being incapable of practicing nursing with reasonable safety to patients by virtue of mental illness, drunkenness or use of drugs. This relinquishment coincided with the first time Petitioner went to prison on drug-related charges.

8. On April 17, 1984, the Department of Professional Regulation filed an Administrative Complaint in Case Nos. 0022916, 0024200, 0028839, and 0031768 alleging failure to comply with probation because the required periodic reports had not been submitted, Petitioner's refusal to submit to a drug screen, testing positive for Dilaudid without a prescription, abandoning patients on two occasions, possession of controlled substances, and use of Demerol while on duty. The Administrative Complaint charged Petitioner with violation of Sections 464.018(1)(f) - unprofessional conduct, (g) - engaging

   or attempting to engage in the possession of a controlled substance for other than legitimate purposes, (h) - being unable to practice nursing with reasonable skill and safety to patients by reason of use of drugs, and (i) - failing to report to the Department any person whom the licensee knows is in violation of this chapter, Florida Statutes (1981). The Petition for Voluntary Relinquishment not having been presented to the Board, in consideration of the Administrative Complaint on October 19, 1984, the Board again revoked Petitioner's license. The order of revocation was vacated on June 5, 1986, and the voluntary relinquishment entered nunc pro tunc.

9. In 1989, Petitioner had begun methadone treatment for her drug addiction. Methadone is a schedule II controlled substance. At certain therapeutic levels, methadone does reduce or eliminate a person's craving for drugs. However, at non- therapeutic levels, methadone is a potent hallucinogenic and narcotic which does impair the user's abilities and judgment.

10. IPN was started in 1984. IPN serves as an alternative to discipline for nurses with impairments. Impaired nurses are referred to IPN by employers, nurse executives, human resource people, and the Board of Nursing.

11. The first step in entering IPN is an evaluation with an IPN-approved evaluator. IPN does not provide evaluation or treatment. Administrative rules outline the criteria for the

    minimum standards for providers. An IPN-approved evaluator is required to ensure the evaluator has a background in addictions or mental health, and understandably safety-sensitive issues related to impaired health care practitioners.

12. The evaluator makes a recommendation on the type of treatment or intervention appropriate to the individual nurse. The recommendation takes into account complicating issues such as chronic pain. Chronic pain is an issue because use of other mood-altering chemicals puts the nurse at risk for relapse into addictive disease. Treatment decisions are made by the evaluator, not IPN.

13. Upon receipt of the evaluation, IPN coordinates with the individual nurse to set him or her up in the recommended treatment until treatment is complete. The nurse returns to IPN for monitoring. The terms of monitoring are based on the recommendations of the evaluator or treatment provider. The evaluation also addresses fitness to practice. Fitness to practice is critical and is monitored on an ongoing basis after the initial evaluation. Using the recommendations, IPN formulates an Advocacy Contract which includes the evaluator/treatment provider recommendations, such as individual psychotherapy, as well as standard provisions of participation. Standard provisions of participation include after-care following treatment, participation in weekly nurse support

    groups, participation in self-help groups such as AA or NA, and random urine drug screens. The standard provisions are based on a national standard.

14. The purpose of the nurse support group is twofold: to provide support to the individual nurse, in such areas as with problem-solving and nursing related issues, and to keep IPN abreast of possible relapse behaviors by participants and the consequent safety to practice issues.

15. On June 14, 1990, the Board considered Petitioner's third application for reinstatement, including evaluations by Randall Greene, D.O. Dr. Greene recommended that, given Petitioner's personality characteristics and the severity and progression of Petitioner's discipline she would never be able to return to clinical nursing without risk of relapse, and would need to be on probation throughout her professional career. Based on Dr. Greene's evaluations, the Board reinstated Petitioner's license under a stayed suspension. The stay of suspension was conditioned on entry into and participation in the IPN. Failure to remain in and successfully complete IPN would result in lifting of the stay and require Petitioner to appear before the Board and document her safety to practice nursing.

16. Pursuant to IPN procedures, on June 19, 1990, Petitioner was evaluated by Molly Webb-Beatty at Vista Pavilion

    in Gainesville. Ms. Webb-Beatty's prognosis for a relapse-free recovery was extremely guarded due to Petitioner's 20-year opiate dependency and reported chronic back pain. Ms. Webb- Beatty reported that Petitioner chose to continue the slow dose reduction of methadone use as prescribed by her methadone treatment provider. Petitioner would contact Vista Pavilion when she neared the 20 milligram-level for possible detox and treatment with IPN.

17. Petitioner entered into an Advocacy Contract with IPN. At that time the standard Advocacy Contract period was two years. Petitioner's Advocacy Contract specifically stated that participation dates in IPN would be set after Petitioner detoxed off methadone at a dose reduction of one to two milligrams per week. In 1990, IPN had an abstinence based policy. IPN did not recognize Methadone treatment as a legitimate alternative treatment for drug dependency. Therefore, Petitioner was required to be in the detoxification process to enter IPN. The Board's and IPN's 1990 abstinence policy was based on the American Society of Addiction Medicine's (ASAM) national standard of treatment for chemical dependency. ASAM is a nationally recognized authority in the area of addiction and addiction treatment. It certifies physicians in addiction medicine and sets treatment standards. Currently, the policy of ASAM is that the goal of addiction treatment is generally

    abstinence. However, methadone treatment is recognized as a legitimate alternative to abstinence in exceptional cases.

18. IPN approved Petitioner to practice nursing in a non- clinical setting within six months of entering IPN.

19. On July 11, 1990, Petitioner requested an appearance before the Board on the grounds that IPN was unaware of or did not understand her methadone treatment.

20. By a Final Order on Reinstatement filed October 24, 1990, the Board of Nursing reinstated the relinquished license of Petitioner on a stayed suspension. The stay was conditioned upon Petitioner's participation in the IPN. Failure of the Petitioner to remain in IPN would result in lifting of the stay and imposition of the suspension.

21. Petitioner proceeded with the detoxification process for several months until she became pregnant, at which time detoxification was stopped.

22. After delivery of her child, Petitioner started the detoxification process again, but became uncomfortable and resistant to the idea of detoxification. As a result, IPN arranged in 1992 for a new evaluation to address the methadone issue. IPN sent Petitioner to Dr. Ken Thompson, certified as an addictionist by ASAM.

23. Dr. Thompson expressed concern about the stability of Petitioner's recovery program and recommended that Petitioner

    participate in IPN until she was fully off methadone for two years, no clinical nursing practice until fully tapered off methadone (although it would be a clinical decision by her treating physician whether tapering off methadone is appropriate), and continued evaluation.

24. IPN approved Petitioner to continue practice in a non- clinical setting.

25. In 1993, IPN offered Petitioner another opportunity for evaluation of her methadone maintenance status and a possible return to clinical nursing. IPN sent Petitioner to Dr. Michael Sheehan.

26. Dr. Sheehan, who is certified in addiction medicine, evaluated Petitioner on August 18 and December 13, 1993. Dr. Sheehan agreed with Dr. Thompson and Dr. Greene that Petitioner was unable to pursue unsupervised nursing, and should not have access to narcotic medications. He also recommended continued participation in IPN and an indefinite probation due to her continued use of a Schedule II controlled substance. Dr. Sheehan believed that Petitioner could enter clinical nursing practice with these restrictions, even with continued methadone maintenance. Dr. Sheehan did also offer, as an alternative, very slow reduction in methadone in and effort to detox Petitioner.

27. Dr. Sheehan's evaluation was the first time any evaluator or treatment provider had suggested Petitioner should remain on a methadone maintenance program rather than detoxifying to total abstinence. The opinion was given at a time when attitudes toward methadone treatment was changing both nationally and in Florida.

28. Subsequent to this evaluation, Linda Smith, Executive Director of IPN, began researching the issue of clinical practice by persons maintained on methadone. She contacted authorities within the state. She also researched other states to determine what their methadone policies were. Ms. Smith found that only New York was permitting health care practitioners to continue methadone maintenance while practicing health care.

29. IPN also brought the issue of clinical practice to the Board of Nursing in 1994. At that time, the Board's position was an IPN should be abstinence-based due to safety to practice issues.

30. Over time, Petitioner became less and less compliant with the provisions of her IPN Advocacy Contract. She was transferred to a new nurse support group due to the lack of tolerance of her treatment modality in her original group. During 1994, Petitioner refused to attend her nurse service

    group for several weeks at a time. For example, Petitioner did not attend in December and missed most of January 1995.

31. IPN attempted to work with Petitioner regarding attendance at nurse support groups. When an issue of negative attitude with regard to methadone surfaced, IPN approved a transfer to a new support group and talked to the new group facilitator to make sure it would not be an issue. Petitioner complained about the difficulty in coordinating schedules between the support group and her work. IPN discussed options with her for working out her schedule, but insisted that she would have to take responsibility for implementing such arrangements since there were no other support groups available in her area.

32. Petitioner was also required to submit urine drug screens to IPN. Until 1994 Petitioner's drug screens were collected at Quad County, Petitioner's methadone treatment location.

33. In 1994, IPN changed its system for random urine drug screens to standardize the screens in terms of collection and the number of drugs for which the screen would be tested. Prior to that time, each participant dropped urine samples for screening at a location to be determined on an individual basis. The locations were not standardized, and the screens often did not test for Demerol, the number one abuse opiate. In 1994,

    participants were required to have a comprehensive health care practitioner screen done, which included Demerol, the most commonly abused opiate, as well as drugs the literature indicated were increasing in abuse, such as Vicodan, Dilaudid and Ultra-Sound. Drug screens would be done at a facility approved by IPN which ensured the chain of custody of the tests, and allowed IPN to receive the screens within 48 hours in the IPN offices. The new policy brought IPN in line with the national standards for randomized drug screens.

34. Ms. Smith was familiar with the drug screens being done at Quad County, which were not comprehensive enough to meet IPN standards. In addition, the drug screens were not received contemporaneously in the IPN office, so IPN was not aware of Petitioner's continued legitimate use of Darvocet.

35. Petitioner refused to comply with the standardized drug screen system. Petitioner failed to show for her drug screen tests on June 8, 1995, July 28, 1995, September 11, 1995, and October 24, 1995.

36. Petitioner testified that she refused to participate in the standardized drug screen system on the advice of her lawyer.

37. In 1995, IPN again brought the issue of clinical practice to the Board of Nursing. At that time the Board agreed that there may be individual nurses whose preferred treatment

    modality was methadone rather than abstinence; however, those nurses could only work in a non-clinical setting.

38. On November 3, 1995, Petitioner was dismissed from IPN for non-compliance with the requirements of the impaired practitioner program.

39. On November 8, 1995, IPN notified the Board that Petitioner was dismissed from IPN due to a pattern of noncompliance during her IPN participation, with an extensive summary of Petitioner's participation in the program. She was not dismissed because of her refusal to detoxify from methadone.

40. In February 1996, Petitioner appeared before the Board, represented by attorney A. Bice Hope, on IPN's recommendation to lift the stay of suspension. By a Final Order No. AHCA 96-00405, filed April 3, 1996, the Board lifted the stay of suspension and suspended Petitioner's license. Again the suspension would be stayed if Petitioner entered and participated in IPN.

41. Petitioner filed an appeal of Final Order No. AHCA 96- 00405. The Final Order was affirmed per curiam by the First

    District Court of Appeals in McCall v. Agency for Health Care Administration, Board of Nursing, Case No. 96-01678, Opinion filed March 11, 1997 and Mandate dated April 24, 1997.

42. At the hearing, Petitioner attempted to dispute the issue of whether or not she was in compliance with her IPN

    Advocacy Center at the time of her suspension in 1996. However, the issue of whether she was in violation of the Board's order by failure to comply with her advocacy contract has already been decided by the First District Court of Appeal in its per curiam affirmance of the Board's final order.

43. On October 8, 1997, the Board considered Petitioner's fourth application for reinstatement of her license. Petitioner requested that her license be reinstated without IPN participation, and that she be permitted to practice in clinical nursing. The Board found that the probation proposed by Petitioner was not a reasonable alternative to participation in IPN, and further found that she had not demonstrated she was capable of practicing nursing with reasonable skill and safety. Therefore, the request for reinstatement was denied.

44. In 1998, Dr. Sheehan testified that methadone treatment does not eliminate the risk of relapse for a person addicted to narcotic drugs. He was unable to say definitely that a person not on methadone has a higher risk of relapse than a person being maintained on methadone. Indeed, the risk of relapse is always present for any addict regardless of treatment. However, Petitioner's chronic pain makes it more likely that she may relapse.

45. Dr. Sheehan recommended that Petitioner continue participation in a 12-step program (e.g. Narcotics Anonymous)

    for the rest of her life. It is reasonable under these circumstances for the Board to require reports from a treatment provider. It is reasonable to require monitoring as long as Petitioner is in a clinical practice setting, with ongoing evaluation of her performance and reports to IPN or the Board on a monthly or bimonthly basis. Random urine drug testing through IPN is appropriate for Petitioner. In addition, Dr. Sheehan recommends participation in a nurse support group, particularly if Petitioner is in clinical nursing, to obtain support from Petitioner's peers. However, that group should be a group which accepts methadone treatment.

46. IPN, on the other hand, has a clinical staff that includes individuals with master's degrees in nursing or mental health qualified employee fitness program professionals and certified addictions professionals. All of the clinical staff has experience in addiction and mental health, which is a job requirement. Facilitators for IPN nurse support groups are expected to understand the issues of addiction, mental health, and group process. Facilitators also receive training in relapse prevention.

47. Because of IPN's expertise in impairment issues of nurses that the Board relies on IPN. The Board's requirement that IPN be involved in Petitioner's treatment and reinstatement is reasonable.

48. Again in 1998, IPN presented the issue of methadone maintenance and clinical practice to the Board. While formulating a policy in this regard, Ms. Smith discussed the policy with Dr. Thompson who had previously evaluated Petitioner and recommended that Petitioner not engage in clinical practice unless she met with certain conditions. Those conditions included monitoring by an addiction specialist; participation in other aspects of a recovery program not solely those for methadone treatment, including therapy, similar groups, and urine drug screening; and performance evaluation. Dr. Thompson did not change his recommendation of indefinite monitoring. These recommendations reflect the changed attitude among addiction professionals regarding methadone maintenance.

49. In August 1998, the Board and approved the new IPN policy on methadone maintenance. The policy incorporated the ASAM policy that abstinence should be the goal of choice for chemical dependency, but may not be feasible for all opiate- dependent persons. Further, the policy required that methadone maintenance treatment include behavioral, psychodynamic and 12- step approaches combined with pharmacological intervention to provide a broad spectrum of treatment.

50. IPN guidelines for acceptance and participation of methadone patients include:

    1. the opinion of two ASAM-certified addictionists that methadone rather than abstinence is the treatment of choice for the individual nurse;

    2. the demonstrated inability to detox from methadone by the individual nurse;

    3. on-going psychotherapy with an approved specialist;

    4. demonstration of nursing competence through performance-based skills testing, a procedures examination, and neuropsych testing;

    5. on-going evaluation by an IPN certified addictionist;

    6. Board approval to engage in clinical nursing upon demonstration of competence via the stated testing; and

    7. monitoring in clinical practice for a minimum of five years, and thereafter until discontinuance is approved by the Board.

       
       

51. The University of Florida has a program that would provide some of the testing required by the policy, including a neuropsychology testing that evaluates such areas as stability, judgment, concentration, and decision-making. In fact, IPN worked with the university to set up an individual plan for Petitioner. The program includes a simulated laboratory, examination, neuropsych testing, and provides feedback regarding remediation.

52. Regardless of her chemical dependency, Petitioner has only practiced clinical nursing for 27 months since she was licensed in 1977, all prior to 1983.

53. The field of nursing has been revolutionized since 1983. Nursing has new practice settings, new technologies, new

    drugs, new way of treating diseases, and new roles for the professional nurse. Petitioner needs extensive remedial education to reenter clinical nursing. Petitioner's continuing education over the last 10 years might keep her up to date on theory, but clinical remediation is necessary for clinical practice, because it is clinical skills that degrade fastest.

    Good clinical judgment cannot be learned without clinical training. Evaluating other nurses through facility surveys does not substitute for hands-on clinical experience. Therefore, it is reasonable that Petitioner comply with this requirement.

54. In Petitioner's case, upon approval of the new IPN policy, the Board agreed to allow Petitioner to return to clinical nursing if she met the condition of the policy, and after she demonstrated six months of compliance with IPN requirements because of her previous history of noncompliance. The Board even agreed to consider termination of monitoring all together if Petitioner did well for five years in clinical practice. Petitioner declined the Board's conditions.

55. In 1997 Petitioner filed another request for reinstatement of her license. By its Order on Petition for Reinstatement No. DOH 97-0450, filed December 23, 1997, the Board denied Petitioner's request for reinstatement.

56. Petitioner was notified that her license would expire on July 31, 1998, unless she submitted the appropriate fees.

    Petitioner admitted that she received the renewal notice. Petitioner also admitted that she has not paid her license fees in over two years and has not paid them to date.

57. Petitioner knew or should have known that she was obligated to renew her license while it was on suspension. She has done so in the past.

58. The Board has notified licensees through its official newsletter that suspended licenses are subject to being renewed. Since Petitioner has been at the same address of record for all relevant times, it must be presumed that she received the newsletter sent to her.

59. The staff of the Board of Nursing office is aware that suspended licenses are subject to renewal. The procedure is clearly spelled out for staff members handling general calls from the public.

60. Petitioner testified that she called the Board of Nursing office and was told she did not have to renew her license if it was suspended. However, she was unable to identify the person who made such statement, or when her call was made. Petitioner's reliance on the caller's advice was not reasonable since she is well aware of the requirements for renewing her license and has done so in the past.

61. Petitioner has failed and refuses to enter into and participate in IPN. Participation in IPN is a condition of the

    Final Orders of the Board of reinstatement of her license. Petitioner has failed to comply with the Final Order No. AHCA 96-00405 as required by Section 464.018(3), Florida Statutes, and her license is currently suspended. The conditions placed on her by the Board were reasonable. It is up to Petitioner to comply with those conditions. Moreover, during the pendency of this action Petitioner's license became delinquent. The delinquency lasted for more than two years. By operation of

    law, Petitioner's license was nullified. Therefore, there is no license on which the Board may take action.

    CONCLUSIONS OF LAW

    
    

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

63. An applicant for licensure carries the ultimate burden of persuasion of entitlement at each and every step of the licensure proceedings. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Sterne and Company, 670 So. 2d 932 (Fla. 1996); Florida Department of

    Transportation v. J.W.C., Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). See also Astral Liquors, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 432 So. 2d 93 (Fla. 3d DCA 1983); Balino v. Department

    of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st

    
    

    DCA 1977).

    
    

64. Section 464.018(3), Florida Statutes, provides:

    
    

    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 the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of nursing.

    
    

65. Subsection (3) of Section 464.018, Florida Statutes, is couched in negative terms, and states the conditions under which a license may not be reinstated or issued to a person previously deemed unqualified. Jordan v. Department of Professional Regulation, 522 So. 2d 450, 452 (Fla. 1st DCA 1988). This legislative direction requires the Board to determine that two conditions are satisfied: (1) that the person has complied with all the terms and conditions set forth in the final order, and (2) that the person is capable of safe practice. The Board is subject to the very strict dictates of this statute, which places the public interest above the individual interests of the nurse seeking reinstatement. Cohen v. Department of Professional Regulation, Board of Medicine, 590

    So. 2d 477 (Fla. 1st DCA 1991).

    
    

66. It is undisputed that Petitioner has not complied with the terms and conditions of the serial orders of the Board which

    required her to participate in IPN. The decision of the Board to require Petitioner's participation in IPN was affirmed on appeal. Moreover, the conditions imposed in those orders were reasonable.

67. It is the general rule in Florida that all questions of law that have been decided by an appeal to a court of ultimate resort become the law of the case which, except in extraordinary circumstances, must be followed in subsequent proceedings. That is, whatever is once established between the same parties in the same case continues to be the law as long as the facts upon which the decision was predicated continue to be the facts in the case. Edgewater Breach Owners Association,

    Inc. v. Board of County Commissions of Walton County, Florida, 694 So. 2d 43 (Fla. 1st DCA 1997), Brunner Enterprises, Inc. v. Department of Revenue, 452 So. 2d 550 (Fla. 1st DCA 1984). A

    per curiam affirmed decision becomes the law of the case. Commission on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1983). The law of the case doctrine prevents the litigation of issues which either were or could have been raised in the prior appeal. Warren v. State, 23 FLW D735, Case No. 96-0817 (Fla.

    4th DCA, March 18, 1998).

    
    

68. Petitioner's assertions in this case are a collateral attack on the Board's ruling and the Mandate of the First District Court of Appeal. Final Order No. AHCA 96-00405, found,

    as a conclusion of law, that Petitioner failed to comply with the terms and conditions set forth in the Final order filed October 24, 1990, by her continuing failure to participate in IPN and abide by IPN's advocacy contract.

69. Moreover, Petitioner has failed to demonstrate that her license should be reinstated without conditions or that her license should be reinstated with an alternative to IPN. Therefore, Petitioner is not entitled to reinstatement of her license.

70. Neither Section 464.013 nor Section 464.014, Florida Statutes, provides for any exception to renewal requirements for a suspended license. Section 455.711 does not provide for any exception to renewal requirements for a suspended license.

71. Finally, Section 455.711, Florida Statutes, creates three states of licensure: active, inactive or delinquent. Both active and inactive licenses must be renewed. See Section 455.711(5), Florida Statutes. Failure to renew renders the license whether active or inactive, delinquent. Section 455.711(5), Florida Statutes.

72. Section 455.711(6), Florida Statutes, provides as follows:

    Failure by a delinquent licensee to become active or inactive before the expiration of the current licensure cycle renders the license null without any further action by the board of the department. Any subsequent

    licensure shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure.

    
    

73. Section 455.711(11), Florida Statutes, provides that the status of the license, whether active, inactive, or delinquent, does not alter the authority of the Board of Nursing to impose or enforce discipline against the licensee.

74. Section 455.714, Florida Statutes, directs the Department of Health to "forward a notice of pending cancellation of licensure to a delinquent licensee at the licensee's last known address of record with the department." The statute states no consequences for failure to provide timely notice under this direction. In addition, Section 455.711, Florida Statutes, provides no exception to the statutory nullification of the license based on the grounds of the Department's failure to provide notice to the licensee.

75. While use of the word "shall" is normally construed as mandatory in nature, the interpretation depends on the context in which it is found. State v. Book, 523 so. 2d 636, 638 (Fla. 3rd DCA 1988). The term "shall" has been interpreted as directory rather than mandatory. See, e.g., Klein v. J.L. Howard, Inc., 600 So. 2d 511 (Fla. 4th DCA 1992); Ewing v. Kaplan, 474 So. 2d 302 (Fla. 3rd DCA 1985). Where a provision is accompanied by a penalty for failure to observe it, the

    provision is viewed as mandatory. Steinbrecher v. Better

    
    

    Construction Co., 587 So. 2d 492, 494 (Fla. 1st DCA 1991).

    
    

76. More pertinent to the analysis in this case is the reasoning in Book, analyzing Legislative intent. Section 455.711(6), Florida Statutes, requires no action by the Department or Board. There is also no provision that failure of the licensee to receive notice of renewal relieves the licensee of the obligation to submit the proper form and fees before the license expires. The legislative intent is that persons practicing a licensed profession in this state have the responsibility to renew that license; failure to properly renew renders the license delinquent. The state does not take action against the licensee for failure to renew -- failure to renew is not in itself a violation of law. If the licensee continues to practice on a delinquent license, she is subject to discipline for unlicensed practice. "I didn't receive my notice" is not a defense to discipline for unlicensed practice, because each licensee is responsible for knowing that the license expires every two years. Likewise, failure to renew the license before it becomes delinquent is not a violation, but it also is not taking of a property right by the state. No hearing is required,1 the license is not sold to someone else, and there is no penalty ascribed either to the Department or licensee for

    failure to send out the notice -- no discipline appears on the license, and there is no hindrance to reapplying for licensure.

77. Therefore, the requirement for notice in Section 455.714, Florida Statutes, is directory rather than mandatory. Failure of the Department of Health to provide notice to Petitioner does not nullify the operation of Section 455.711(6), Florida Statutes.

78. Even if Petitioner's testimony regarding her phone call to the Board office is accepted as true and accurate, it cannot be the basis of estoppel against the Board of Nursing or the Department of Health. In exceptional circumstances, estoppel may lie against the state for a misstatement of material fact. See State Department of Revenue v. Anderson, 403 So. 2d 397 (Fla. 1981); Humosco, Inc. v. Department of Health and Rehabilitative Services, 561 So. 2d 388 (Fla. 1st DCA 1990).

    The alleged statement here is a statement of legal requirement, not fact. Even assuming the statement was a misstatement of fact, Petitioner's reliance on it was unreasonable. Therefore, estoppel cannot prevent the operation of Section 455.711, Florida Statutes, in this case.

79. In short, the Board has no authority to decide that a license is null; the nullification occurs by operation of law. Finally, no provision in Chapter 4664 or 455, Florida Statutes, gives the Board authority to reverse the operation of law.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the application of Rebecca B. McCall for reinstatement

of her license as a registered nurse be denied and this action be dismissed as moot since Petitioner's license has expired.

DONE AND ENTERED this 24th day of October, 2000, in

Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2000.

ENDNOTE

1/ In 1986, the Legislature first inserted the automatic nullification into Section 464.014, Florida Statutes; prior to that time, failure to renew after a stated period of time meant the license could "automatically be suspended," implying a requirement for action on the part of the Department or Board. Laws of Florida, Chapter 86-284, Section 11. In 1997, the provisions regarding active, inactive, delinquent, and null licenses was transferred into Chapter 455, Florida Statutes, Laws of Florida, Chapter 97-261, Section 95.

COPIES FURNISHED:

Rebecca McCall

2185 North Yarnallton Pike Lexington, Kentucky 40511-9087

Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing

4080 Woodcock Drive, Suite 202

Jacksonville, Florida 32207-2714

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

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: 98-000470

Orders for Case No: 98-000470