STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Petitioner,

vs.

TAMMY W. MULLIS, R.N.,

Respondent.

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) Case No. 06-4137PL

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RECOMMENDED ORDER

Notice was provided, and, on January 10, 2007, a formal hearing was held in this case in accordance with Sections

120.569 and 120.57(1), Florida Statutes (2006). The hearing location was the Department of Transportation District Office, 1109 South Marion Avenue, Lake City, Florida. The hearing commenced at 10:00 a.m., before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: William F. Miller, Esquire

Ellen Simon, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Duncan Alden Jones, Esquire

330 Southwest Fourth Avenue High Springs, Florida 32643

STATEMENT OF THE ISSUE

Should the Board of Nursing (the Board) impose discipline on Respondent's nursing license for violating Section 464.018(1)(n), Florida Statutes (2003)?

PRELIMINARY STATEMENT

By an Administrative Complaint before the Department of Health (the Department), Case No. 2004-25152, signed by the Department Secretary on October 21, 2004, Respondent was accused of a violation in relation to her license to practice nursing in Florida. In pertinent part the Administrative Complaint

alleged:

* * *

1. On or about April 21, 2004, Respondent submitted to a pre-employment drug screen.

   
   

2. The drug screen returned on or about April 24, 2004, positive for Marijuana.

   
   

3. Marijuana is a Schedule I controlled substance pursuant to Section 893.03(1)(c), Florida Statutes. A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and its use under medical supervision does not meet accepted safety standards.

   
   

4. Respondent did not have a lawful prescription and legitimate reason for using such drug.

5. Section 464.018(1)(n), Florida Statutes (2003), provides that failing to meet minimal standards of acceptable and prevailing nursing practice constitutes grounds for disciplinary action by the Board of Nursing.

   
   

6. Florida Administrative Code Rule 64B9- 8.005(2)(k), defines failing to meet minimal standards of acceptable and prevailing nursing practice to include, but not be limited to, testing positive for any drugs under Chapter 893, Florida Statutes, on any drug screen when the nurse does not have a prescription and legitimate medical reason for using such drug.

   
   

7. Respondent tested positive for Marijuana and did not have a lawful prescription or legitimate medical reason for using the drug.

* * *

On March 1, 2005, Respondent executed a form in which she elected her right to dispute the allegations in the Administrative Complaint and requested a formal hearing pursuant to Sections 120.569(2)(a) and 120.57(1), Florida Statutes. At that time, Respondent provided an answer to the Administrative Complaint addressing the respective paragraphs within the Administrative Complaint.

On October 24, 2006, Robert S. Cohen, Director and Chief Judge of the Division of Administrative Hearings (DOAH) received a copy of the Administrative Complaint, Respondent's Election of Rights, and Respondent's Answer to the Administrative Complaint. The Department intended that DOAH create a file and conduct a

hearing consistent with Section 120.57(1), Florida Statutes, following assignment of the case to an Administrative Law Judge. The case was assigned as DOAH Case No. 06-4137PL, with the undersigned serving as the Administrative Law Judge.

On November 30, 2006, Petitioner moved to deem admitted the Request for Admissions served on Respondent. On December 12, 2006, an order was entered granting the motion. On December 14, 2006, Petitioner moved to relinquish jurisdiction as a result of the admissions. Later on December 14, 2006, Respondent's executed response to the Petitioner's Request for Admissions was filed. On December 21, 2006, Respondent moved to set aside the December 12, 2006, order deeming the matters admitted pursuant to the Request for Admissions. On December 29, 2006, an order was entered which set aside the December 12, 2006, order on admissions, allowed the Respondent's responses to Petitioner's Request for Admissions that had been filed and denied Petitioner's Motion to Relinquish Jurisdiction.

On January 3, 2007, Petitioner moved to allow Richard E. Struempler to testify by telephone at the final hearing. On January 4, 2007, an order was entered allowing the telephone testimony by Mr. Struempler.

Although Respondent did not attend the final hearing, she was represented by counsel. Under the circumstances, it was perceived that Respondent continued to contest the allegations

in the Administrative Complaint, and Petitioner was required to proceed with its proof as the party bearing the burden of proof.

Mr. Struempler was the only witness who testified during the final hearing. He did so by telephone after being administered an oath to tell the truth by a notary public in the State of Georgia, the state where Mr. Struempler was located during the hearing. On January 17, 2007, proof of the administration of the oath was filed as executed by the Georgia Notary Public, Garland Edward Pendergraph.

Petitioner's Exhibits lettered A through D were admitted.

Respondent's Exhibit numbered 1 was admitted. Consistent with a pre-hearing order, the parties discussed the possibility that certain facts could be stipulated to and filed a statement of facts agreed to between the parties. The factual stipulation between the parties will be set out in the Findings of Fact to this Recommended Order.

Petitioner requested that official recognition be made of Sections 464.018 and 893.03, Florida Statutes (2003), and Florida Administrative Code Rules 64B9-8.005 and 64B9-8.006, in effect in 2003. Respondent requested official recognition of Chapter 112, Florida Statutes (2003). Those requests were granted as reflected in the hearing transcript.

On January 30, 2007, the hearing transcript was filed. Petitioner filed a Proposed Recommended Order which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. At all times material to this Complaint, Respondent was a registered nurse (R.N.) within the state of Florida, having been issued license number RN 2055672.

2. Respondent's address of record is Rt. 22, Box 2347, Lake City, Florida 32024.

3. On or about April 21, 2004, Respondent submitted to a pre-employment drug screen.

4. The drug screen returned on or about April 24, 2004, indicating a positive test result for cannabinoids - tetrahydrocannabinol, the principal active component of Marijuana.

5. Marijuana is a schedule I controlled substance pursuant to Section 893.03(1)(c)35., Florida Statutes. A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and its use under medical supervision does not meet acceptable safety standards.

6. Respondent did not have a lawful prescription or a legitimate medical reason for using Marijuana, or any other substance that might test positive for cannabinoids - tetrahydrocannabinol.

   Specimen Submission

   
   

7. On April 21, 2004, when Respondent underwent a pre- employment drug screen, it was by providing a urine specimen. As the donor she signed a form with the following language:

   I certify that I provided my urine specimen to the collector: that I have not adulterated it in any manner: each specimen bottle used was sealed with a tamper evidence seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct.

   
   

   It was specimen ID number 190920 to be submitted for drug testing at Doctors Laboratory, Inc. (Doctors Laboratory) in Valdosta, Georgia.

8. The reason Respondent provided the urine specimen was in relation to a job application with Shands, Lake Shore, Live Oak and Starke (Shands) whose business address is in Gainesville, Florida. Respondent was tested for drugs in accordance with the Florida Drug Free Work Place Program that is part of the pre-employment process for the prospective employer.

9. The urine specimen was tested for the presence of amphetamines, cannabinoids, cocaine, opiates, phencyclidine, barbiturates, benzodiazepines and methaqualone.

10. Respondent's urine specimen was packaged and shipped to Doctors Laboratory in Valdosta, Georgia, where it was received on April 22, 2004, for testing. The test designed to detect cannabinoids is referred to as "9 CARBOXY-THC." The laboratory test performed on Respondent's urine specimen returned as positive for the presence of cannabinoids, outside what would be considered an acceptable range.

11. On April 23, 2004, Doctors Laboratory released Respondent's test results to the Occupational Health Services Unit within Shands, which was received by that unit on the same date as evidenced by a stamp found on the laboratory test information copy.

12. On April 26, 2004, nurse Denise Cannon signed a document that is headed "Shands Healthcare Occupational Health Services Positive/Abnormal Drug Screen." It pertains to Respondent. It mentions the prospective hiring of the Respondent to work at Lakeshore in the position of R.N./ICU. It notes of the positive drug screen for: 9 CARBOXY-THC-Marijuana. It notes that nurse Cannon notified Respondent of the results on April 26, 2004. Part of the notification was to verify Respondent's identity by social security and date of birth and

    to advise Respondent of Shands Drug Free Work Place Policy, as well as rights/responsibility under the Florida Drug Free Work Place Act of 1988. The form indicates that Respondent requested a consultation with the MRO, short for Medical Review Officer.

    It comments that the Respondent was not hired. The comment section states that Respondent "would like to contest the drug screen."

13. On April 28, 2004, a MRO Verification Worksheet was completed in relation to the Respondent and specimen ID 190920, which shows that a positive result was received on April 27, 2004. On April 28, 2004, the worksheet was signed by

    Dr. Ku-Lang Chang M.D., M.R.O.

    
    

14. According to the MRO Verification Worksheet, an attempt was made to call Respondent on April 27, 2004. On April 28, 2004, as the worksheet describes, a message was left "LM with husband." The Verification Worksheet goes on to describe that on April 28, 2004, an interview was conducted in which the "applicant decided not to pursue this." This is understood to refer to Respondent as the applicant. In the April 28, 2004, conversation Respondent was informed of the test results.

15. The MRO Verification Worksheet has a notation that "reported to IPN 5/3/04" IPN is read to refer to the intervention project for nurses.

16. In conclusion, the MRO Verification Worksheet made a verification decision: positive for 9 CARBOXY-THC.

17. On April 28, 2004, Dr. Ku-Lang Chang notified

    
    

    N. Denise Cannon, R.N., Occupational Health Unit within Shands, of the positive drug screen.

18. On May 10, 2004, nurse Cannon executed a form provided by the Department reporting on Respondent's positive drug screen.

19. On June 10, 2004, nurse Cannon wrote Ms. Julie Weeks, of the Department, outlining the drug screen process, notification of the results on April 26, 2004, and the advice to Respondent to contact IPN. The June 10, 2004, correspondence refers to Respondent's request that the results of the drug screen be turned over to Dr. Ku-Lang Chang, Medical Review Officer (MRO). The June 10, 2004, correspondence from nurse Cannon to Ms. Weeks speaks of the intervention project, the IPN, Intake Case Manager Pat Falke and Respondent's failure to follow through with the recommendations of IPN. As a consequence, Nurse Cannon corresponded with the Department to undertake an investigation.

20. On May 28, 2004, Pat Falke, had written nurse Cannon indicating that efforts at gaining Respondent's participation with IPN had not succeeded and reminding nurse Cannon to proceed

    with the execution of the uniform complaint on the Department's form.

    Laboratory Analysis

    
    

21. Doctors Laboratory where Respondent's urine specimen was analyzed is a clinical reference laboratory that serves Florida, among other states. Its affiliation with Florida is in relation to the Florida Drug Free Work Place Program in providing forensic urine drug testing for employment screening. Richard Earl Struempler, B.S., M.T., (ASCP), MS, MA, NRCC is the Director of Operations and the Director of Toxicology for Doctors Laboratory. As such, he is responsible for the day-to- day operations of the forensic urine drug testing laboratory pertaining to procedures and protocols, in the interest of making certain that the procedures followed in the laboratory comply with rules, regulations, and certification standards for the Florida Drug Free Work Place Program employment drug testing, among other affiliations. By stipulation,

    Mr. Struempler was accepted as an expert in toxicology and drug testing for purposes of his testimony.

22. On April 22, 2004, Doctors Laboratory received Respondent's urine specimen for drug testing. Tests were performed to detect the class of drugs that have been described. Within that grouping was Marijuana which is also known as THC. THC stands for tetrahydrocannabinol, with delta nine

    tetrahydrocannabinol being the main psychoactive ingredient found in Marijuana. The test conducted on the urine specimen was designed to look for the metabolite of this substance in the carboxylic acid form.

23. Respondent's urine specimen was collected in Gainesville and taken by carrier to Doctors Laboratory in Valdosta, Georgia. When it arrived by carrier, it was placed in the accessioning area within the laboratory for immediate transfer to the drug testing area within the laboratory. The accessioning area is a secured facility within the laboratory with limited access, access only to the individual(s) who would need to work with the specimen. Shipping containers are opened in the accessioning area and the individual specimens are removed with an interest in discovering any damage or tampering that may have occurred during shipment. The sample is assigned an accessioning number and is marked as being received in the drug testing laboratory accessioning area.

24. Nothing about Respondent's sample indicated that there were signs of tampering or damage. It was specifically indicated that the primary seal bottle for the urine specimen was intact upon arrival. The accessioning number for Respondent's drug specimen was 07163062. That number was utilized in tracking the urine specimen through activities associated with the urine specimen while in the laboratory.

25. Two tests were employed to analyze Respondent's urine specimen in Doctors Laboratory. The first test, referred to as an initial test, was the immunoassay test designed to identify categories of drugs, to include cannabinoids. It is an antibody antigen reaction test to reveal a color associated with a given drug. At this stage the laboratory also does specimen validity testing, looking for the presence of any indicators that might show that the specimen was tampered with. These steps in the process were utilized in analyzing Respondent's urine specimen. The initial test was by use of an aliquot of the urine specimen. The immunoassay test is accepted in the scientific community and is contemplated as a protocol related to the Florida Drug Free Workplace Program. Respondent's results show the presence of cannabinoids at the cut-off level of 15 nanograms per milliliter or greater. Being within that range, it was considered to be a positive test. Recognizing the positive results, the laboratory staff tested the urine specimen further through what is referred to as confirmation testing.

26. When the confirmation test was performed, a fresh aliquot was obtained from the urine specimen bottle. The confirmation test is designed to extract from the urine, delta 9 tetrahydrocannabinol or delta 9 THC carboxylic acid. The extracted material is concentrated in a small vial and derivatized or converted into a form that allows it to be

    analyzed by an instrument known as a gas chromatograph/mass spectrometer, also referred to as GC/MS. This step in the process is designed to separate THC from other things found in the urine specimen, breaking it down into molecular components. The components are measured as to size, weight, and amount. The GC/MS test is considered within the scientific community to be accurate and reliable. The results of the test on Respondent's urine specimen revealed the presence of delta 9 THC carboxylic acid at 57.5 nanograms per milliliter, a significant amount confirming the presence of the drug.

27. The immunoassay and GC/MS test equipment was properly calibrated before performing the test on Respondent's urine specimen. The tests were properly performed.

28. The chain of custody from the collection point through the testing regimen was not breached and is well documented. The chain of custody was maintained in accordance with standards required at Doctors Laboratory.

29. Respondent's urine specimen that remained following the laboratory test was retained for at least a year, the period required for retention. During that time, no request was made to make the specimen available for independent testing outside the laboratory.

30. As an expert, Dr. Struempler offered his professional opinion that Respondent's urine specimen was collected and submitted to the Doctors Laboratory in accordance with standard operating procedures, that the test and handling of the specimen was in accordance with standard operating procedures, and that the results of the tests reported on April 23, 2004, as being positive for the presence of cannabinoids, THC, was a true and accurate reflection of the nature of the substance found. No administrative or technical errors in the handling and testing occurred. Dr. Struempler expressed the opinion that the Respondent, donor, would have had to have consumed Marijuana or a Marijuana THC containing product one to four days prior to submission of the specimen or as long as 10 days prior to the submission under extreme circumstances. Dr. Struempler's expert

    opinion is accepted.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding in accordance with Sections 120.569, 120.57(1) and 456.073, Florida Statutes (2006).

32. Respondent is licensed as a registered nurse to practice in the State of Florida under license number RN#2055672. The Board intends to impose discipline on that license in accordance with allegations set forth in the

    Administrative Complaint. As such, this is a disciplinary case. For that reason, Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence before discipline can be imposed against Respondent's nursing license. Department of Banking and Finance, Division of Investor Protection v. Osborne Stearn and

    Company, 670 So. 2d 932 (Fla. 1996), and Ferris v. Turlington,

    
    

    510 So. 2d 292 (Fla. 1987). The term clear an convincing evidence is explained in the case In re: Davey, 645 So. 2d 398 (Fla. 1994), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

33. As alleged, Respondent submitted to a pre-employment drug screen by providing a urine specimen. That specimen tested positive for Marijuana under appropriate procedures for testing, while the integrity of the chain of custody of the urine specimen was maintained. Marijuana has no legitimate medical reason for its use. Moreover, the Marijuana was not medically prescribed.

34. Upon the facts, Respondent is accused of violating Section 464.018(1)(n), Florida Statutes (2003):

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

       
       

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       (n) Failing to meet minimal standards of acceptable and prevailing nursing practice, including engaging in acts for which the licensee is not qualified by training or experience.

       
       

35. Section 456.072(2), Florida Statutes (2003), states:

    
    

    When the Board, or the Department when there is no board, finds any person guilty of the grounds set forth in subsection (1) or of any grounds set forth in the applicable practice act, including conduct constituting a substantial violation of subsection (1) or a violation of the applicable practice act which occurred prior to obtaining a license, it may enter an order imposing one or more of the following penalties:

    
    

    1. Refusal to certify, or to certify with restrictions, an application for a license.

       
       

    2. Suspension or permanent revocation of a license.

       
       

    3. Restriction of practice or license, including, but not limited to, restricting the licensee from practicing in certain settings, restricting the licensee to work only under designated conditions or in certain settings, restricting the licensee from performing or providing designated clinical and administrative services, restricting the licensee from practicing more than a designated number of hours, or any other restriction found to be necessary for the protection of the public health, safety, and welfare.

       
       

    4. Imposition of an administrative fine not to exceed $10,000 for each count or separate offense. If the violation is for fraud or making a false or fraudulent representation, the board, or the department if there is no board, must impose a fine of

       $10,000 per count or offense.

    5. Issuance of a reprimand or letter of concern.

       
       

    6. Placement of the licensee on probation for a period of time and subject to such conditions as the board, or the department when there is no board, may specify. Those conditions may include, but are not limited to, requiring the licensee to undergo treatment, attend continuing education courses, submit to be reexamined, work under the supervision of another licensee, or satisfy any terms which are reasonably tailored to the violations found.

       
       

    7. Corrective action.

       
       

    8. Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.

       
       

    9. Refund of fees billed and collected from the patient or a third party on behalf of the patient.

       
       

    10. Requirement that the practitioner undergo remedial education.

        
        

        In determining what action is appropriate, the board, or department when there is no board, must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the practitioner. All costs associated with compliance with orders issued under this subsection are the obligation of the practitioner.

        
        

36. In this instance the basis for violating minimal standards of acceptable and prevailing nursing practice is

    premised upon language set forth in Florida Administrative Code Rule 64B9-8.005(2)(k), in effect in April 2004. It states:

    1. Unprofessional conduct shall include:

       
       

       * * *

       
       

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

       
       

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       1. 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; or

       
       

       * * *

       
       

37. In reference to Chapter 893, Florida Statutes (2003), at Section 893.03(1)(c)35., Florida Statutes (2003), tetrahydrocannabinols is mentioned as a schedule I substance. Tetrahydrocannabinol is found in the Respondent's urine specimen, is equated with the term cannabinoids, and is an ingredient present in Marijuana.

38. As a consequence, Respondent has violated Section 464.018(1)(n), Florida Statutes (2003), by the failure to meet minimal standards of acceptable and prevailing nursing practice when she tested positive for cannabinoids through the drug screen, a substance for which she had no prescription or legitimate medical reason for its use.

39. Respondent is subject to discipline in accordance with Florida Administrative Code Rule 64B9-8.006(2)(vv) in effect in April 2004. The range of penalties extends from a minimum of a

$250 fine, IPN evaluation and probation, to a maximum of a $500 fine, IPN evaluation and suspension, to be followed by a term of probation for a first offender. On these facts, Respondent appears to be a first offender. Petitioner in its proposed recommended order recommends a reprimand, a $200 fine, an IPN evaluation and compliance with recommendations of the IPN and a probationary period of one year.

RECOMMENDATION

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Section 464.018(1)(n), Florida Statutes (2003), for failing to meet the minimal standards of acceptable and prevailing nursing practices through a violation of Florida Administrative Code Rule 64B9-8.005(2)(k) and that Respondent be fined $250, subject to IPN evaluation and placed on a period of probation for one year, in accordance with the disciplinary guidelines provision set forth in Florida Administrative Code Rule 64B9-8.006(2)(vv).

DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 2nd day of March, 2007.

COPIES FURNISHED:

William F. Miller, Esquire Ellen Simon, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Duncan Alden Jones, Esquire

330 Southwest Fourth Avenue High Springs, Florida 32643

Rick Garcia, Executive Director Board of Nursing

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Tom Koch, Acting 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: 06-004137PL

Orders for Case No: 06-004137PL