STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) NURSING, )

)

Petitioner, )

)

vs. )

)

DEBORAH KETZ, )

)

Respondent. )

Case No. 02-1446PL

)

RECOMMENDED ORDER

On June 13, 2002, a formal administrative hearing in this case was held in St. Petersburg, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alexis J. DeCaprio, Esquire

Reginald D. Dixon, Esquire

Division of Medical Quality Assurance Bureau of Health Care

Practitioner Regulation Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265

For Respondent: Suzanne H. Suarez, Esquire

447 3rd Avenue, North Suite 404

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated February 5, 2002, the Department of Health, Board of Nursing (Petitioner), alleges that a urine specimen obtained from Deborah Ketz (Respondent) as part of a pre-employment drug screen tested positive for controlled substances, specifically marijuana and codeine, on a pre-employment urinalysis test. The Respondent filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings, which scheduled the hearing.

During the proceeding, the Petitioner presented the testimony of four witnesses, and had Exhibits numbered 1 through 3 admitted into evidence. The Respondent testified on her own behalf, presented the testimony of four witnesses, and had one Exhibit, numbered 2, admitted into evidence.

A Transcript of the hearing was filed on July 8, 2002.

Both parties filed Proposed Recommended Orders that were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632.

2. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts.

3. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts.

4. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee.

5. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen.

6. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands.

7. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample.

8. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink.

9. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab.

10. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis.

11. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates.

12. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine.

13. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.

    CONCLUSIONS OF LAW

    
    

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

15. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, because the specimen collection process failed to meet minimal standards designed to protect the integrity of the collected sample, the results of the tests are unreliable and the burden has not been met.

16. Count One of the Administrative Complaint alleged that the Respondent's conduct is a violation of Section 456.072 (1)(z), Florida Statutes (2001), which in relevant part provides as follows:

    456.072 Grounds for discipline; penalties; enforcement.--

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    
    

    * * *

    
    

    (z) Testing positive for any drug, as defined in s. 112.0455, on any confirmed preemployment or employer-ordered drug screening when the practitioner does not have a lawful prescription and legitimate medical reason for using such drug.

    
    

17. Count Two of the Administrative Complaint alleges that the Respondent's conduct violates Section 464.018(1)(h), Florida Statutes (2001), by violating Rule 64B9-8.005(18), Florida Administrative Code. Rule 64B9-8.005(18), Florida Administrative Code, does not appear to exist.

18. Section 464.018(1)(h), Florida Statutes (2001), provides in relevant part as follows:

    464.018 Disciplinary actions.—

    
    

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       * * *

       
       

       (h) Unprofessional conduct, which shall include, but not be limited to, any

       departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which case actual injury need not be established.

       
       

19. Rule 64B9-8.005(2)(k), Florida Administrative Code, provides in relevant part as follows:

    64B9-8.005 Disciplinary Proceedings.

    
    

    1. Failing to meet or departing from minimal standards of acceptable and prevailing nursing practice shall include, but not be limited to, the following:

    
    

    (k) Testing positive for any drugs under Chapter 893, F.S., on any drug screen when the nurse does not have a prescription and legitimate medical reason for using such drug.

    
    

20. The substances detected in the urine sample attributed to the Respondent in this case are controlled substances under the provisions of Chapter 893, Florida Statutes.

21. The Respondent asserts that her daughter, with whom she resides, is a chronic marijuana smoker and that the positive test for cannabinoids is the result of "second-hand smoke." The Respondent further asserts that the positive test for opiates/codeine is related to prescription medications she takes for pain relief. The assertions are not supported by credible evidence and are rejected.

22. The Respondent further asserts that the testing methodology utilized by the employer in this case fails to comply with standards applicable to such tests performed within

    the state of Florida. The Respondent further asserts that the test results for opiates should have been treated as negative because under applicable Florida standards the detected level of opiates was insufficient to be reported as "positive" tests.

23. The Petitioner asserts that such standards are not relevant because the statutes and rule under which the Respondent is charged do not reference such standards but merely require establishment that the test results were positive for prohibited substances.

24. The Petitioner's position in this case (essentially that any detection of a controlled substance in a urinalysis screen warrants disciplinary action) disregards the requirement that initial positive test results be confirmed through use of a different test methodology that could produce a result contrary to the initial screening. The Petitioner's position also disregards the reporting requirements that result in instances where indicators of controlled substances are detected in urine but at levels below the specified threshold levels, and therefore are reported as negative despite the presence of the controlled substance.

25. It is relevant to consider the standards for testing and for the reporting of results that would have been applied in a pre-employment urinalysis screening administered to a registered nurse by a nursing facility located within Florida.

26. Florida Law provides that private employers have the right to test potential employees for use of controlled substances. Section 440.102(2), Florida Statutes (2001). Section 112.0455, Florida Statutes (2001), authorizes drug testing of public employees. In both cases, the testing methodologies are similar and are codified by statute.

27. Collection, storage, and transportation of specimens must be performed in a manner that reasonably precludes contamination and alteration of specimens. Sections 112.0455(8)(c) and 440.102(5)(c), Florida Statutes (2001).

28. The Florida Agency for Health Care Administration is charged by statute with adoption of rules further refining procedures to be utilized in collection of specimens. Sections 112.0455(13) and 440.102(10), Florida Statutes (2001). Such rules have been adopted and are set forth at Chapter 59A-24, Florida Administrative Code.

29. Rule 59A-24.005, Florida Administrative Code, addresses collection site and specimen collection procedures. Rule 59A-24.005(3)(c), Florida Administrative Code, provides as follows:

    Integrity and Identity of Specimen. The collection site person shall take precautions to ensure that a specimen not be adulterated or diluted during the collection procedure and that information on the collection bottle and on the chain of custody form can identify the individual

    from whom the specimen was collected. The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified.

    1. To prevent specimen contamination at the collection site:

       a. For urine specimens, toilet bluing agents shall be placed in toilet tanks so the reservoir of water in the toilet bowl always remains blue. There shall be no other source of water in the enclosure or partitioned area where urination occurs. All other sources of water shall be controlled by the collector.

       
       

       * * *

       
       

       1. The individual shall be instructed to wash and dry his or her hands prior to urination. After washing hands, the individual shall remain in the presence of the collection site person and shall not have access to any water fountain, faucet, soap dispenser, cleaning agent or any other materials which could be used to adulterate the specimen.

          
          

       2. The individual may provide his or her urine specimen in a stall or otherwise partitioned enclosure that allows for individual privacy. The collection site person shall remain in the restroom or area, but outside the stall or partitioned enclosure.

       
       

       * * *

       
       

       10. No longer than 4 minutes following collection, the collection site person shall measure and record the temperature of the urine specimen, as indicated, on the chain of custody form. The temperature measuring device must be placed on the outside of the container to prevent contamination. If the temperature measurement exceeds 4 minutes, the specimen shall be rendered invalid and shall be rejected. A second specimen shall

       be collected and a new chain of custody form generated. (emphasis supplied)

       
       

30. In this case, the evidence fails to establish that the Respondent's urine sample was collected in accordance with the cited rules and failed to guarantee that the specimen provided was not adulterated. The Respondent was not directed to wash and dry her hands. The water in the toilets was not tinted. The sample collector left the Respondent in the restroom alone. Other sources of water in the restroom were not controlled. The restroom sink had hot and cold water available; therefore, the temperature measurement of the urine sample is not reliable.

31. The Agency for Health Care Administration has established initial test result thresholds that trigger confirmation-testing, and has established confirmation-testing levels that are reported as "positive" tests. In this case, the initial test results are unavailable. Standards for reporting confirmation test results as "positive" are set forth at Rule 59A-25.006(4)(f)1., Florida Administrative Code. According to the Rule, a confirmation test result for cannabinoids of

    15 ng/mL is reported as positive; a confirmation test result of 2,000 ng/mL for opiates/codeine is reported as positive.

32. In this case, the confirmation test result attributed to the Respondent's urine sample was 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine.

33. The Agency for Health Care Administration has also adopted standards related to the reporting of test results. Rule 59A-24.006(4)(g), Florida Administrative Code, provides as follows:

    Reporting Results.

    1. The laboratory shall report all test results to the MRO indicated on the chain of custody form. Before any test result is reported by the laboratory, the results of initial tests, confirmation tests, and quality control data of such tests shall be reviewed by the certifying scientist and the test certified as an accurate report. The report, at a minimum, shall identify the drugs or metabolites tested for, the results of the drug test either positive or negative, the specimen number assigned on the chain of custody form, the name and address of the laboratory performing the testing, and the drug testing laboratory's specimen accession number.

       
       

    2. The following criteria shall be used when reporting drug testing results.

       
       

       1. Specimens that test negative as specified in subparagraphs 59A- 24.006(4)(e)1. and 2., F.A.C., on the initial test shall be reported as negative. If an employer wishes to retest a negative specimen under the provisions of Section 112.0455(9)(a), F.S., such testing is authorized to be conducted only once and must be requested no more than 7 working days from the time the original negative test result was reported to the employer by the MRO. Hair specimens may be re-collected only once to perform repeat confirmation testing under the provisions of Section 112.0455(9)(a), F.S.

          
          

       2. Specimens that test positive as specified in subparagraph 59A-

          24.006(4)(e)1., F.A.C., on initial immunoassay tests, but test negative as specified in paragraph 59A-24.006(4)(f), F.A.C., on confirmation shall be reported as negative.

          
          

34. Under these procedures, the test result for opiates/codeine would have been reported as negative. In any event, the failure of the specimen collection process to meet minimal standards designed to protect the integrity of the collected sample requires that the results of the tests be rejected as unreliable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz.

DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 5th day of September, 2002.

COPIES FURNISHED:

Alexis J. DeCaprio, Esquire

Division of Medical Quality Assurance

Bureau of Health Care Practitioner Regulation Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265

Suzanne H. Suarez, Esquire

447 3rd Avenue, North Suite 404

St. Petersburg, Florida 33701

William W. Large, General Counsel Department of Health

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

R. S. Power, Agency Clerk Department of Health

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

Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C.

Executive Director Board of Nursing Department of Health

4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

Reginald D. Dixon, Esquire

Division of Medical Quality Assurance

Bureau of Health Care Practitioner Regulation Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265

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: 02-001446PL

Orders for Case No: 02-001446PL