STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLGA MARIE HALL,

Petitioner,

vs.

BOARD OF NURSING,

Respondent.

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) Case No. 10-9161

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this matter before Daniel M. Kilbride, an Administrative Law Judge of the Division of Administrative Hearings, on November 22, 2010, by video teleconference between Tallahassee, Florida, and Tampa,

Florida.

APPEARANCES

For Petitioner: Olga Marie Hall, pro se

15217 Azra Drive

Odessa, Florida 33556

For Respondent: Lee Ann Gustafson, Esquire

Senior Assistant Attorney General Department of Legal Affairs

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

Whether Petitioner should be approved for licensure as a registered nurse, and, if so, under what conditions, if any, pursuant to section 464.009, Florida Statutes (2009).1

PRELIMINARY STATEMENT

Petitioner applied for licensure as a registered nurse on April 14, 2010. Respondent, Board of Nursing (Respondent or Board), approved Petitioner's application with the condition that Petitioner undergo an evaluation coordinated by the Intervention Project for Nurses (IPN). Based on the evaluation recommendation, it was recommended that Petitioner participate in IPN. Petitioner objected and requested a formal hearing.

This matter was referred to the Division of Administrative Hearings (DOAH) on September 16, 2010, and set for hearing via video teleconference.

At the hearing, Petitioner testified on her own behalf and submitted two exhibits, which were admitted. Respondent offered no live witnesses, but submitted one composite exhibit, which was admitted. Respondent requested leave to submit the post- hearing deposition of Jean D'Aprix, executive director of IPN. The motion was granted. The deposition of Jean D'Aprix was taken on November 29, 2010, and submitted on December 10, 2010. Respondent filed its Proposed Recommended Order on December 15, 2010. Petitioner has not filed a post-hearing submittal as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner submitted an application for licensure as a registered nurse on April 13, 2010. Petitioner's application

   
   

   
   

   disclosed that she was licensed in Maryland in 2003, and in the District of Columbia in 2007, as a registered nurse.

2. Petitioner disclosed that she has had disciplinary action against her license to practice as a health-care related professional by the licensing authority in another state. She disclosed that, in the previous five years, she had enrolled in, and participated in, a drug or alcohol recovery program and impaired practitioner program for treatment of drug or alcohol abuse.

3. Petitioner's license to practice in the District of Columbia was suspended for diversion of painkiller drugs from a physician's office on May 8, 2009. The District of Columbia Office of Administrative Hearings entered a Final Order on

   May 19, 2009, dismissing the suspension of Petitioner license, upon reaching a settlement agreement. Under the terms of the agreement, Petitioner agreed to participate in the IPN program, sponsored through the Maryland Board of Nursing.

4. Petitioner was admitted to the Kolmac Clinic in Silver Spring, Maryland, on September 4, 2008, for treatment of an alcohol and drug problem. The admission was required by the Maryland Board of Nursing.

5. Petitioner successfully completed the program, and the Maryland Board of Nursing released Petitioner from her Rehabilitation Committee obligations on April 7, 2010.

   
   

   
   

6. Petitioner testified at the hearing that she never had a problem with alcohol and, thus, did not have a "restriction" from using alcohol by the Maryland or District of Columbia Boards of Nursing.

7. However, Petitioner testified that she was taught in her rehabilitation program that use of alcohol by a person with an addiction to opiates could destabilize her recovery.

8. IPN is Florida's alternative to discipline for nurses in Florida, pursuant to section 456.076.

9. IPN provides monitoring and advocacy for nurses whose practice may be impaired, due to the use, misuse, or abuse of alcohol or other drugs.

10. The Board required Petitioner to submit to an evaluation coordinated by IPN. When applicants are referred to IPN for evaluation, the IPN intake case manager gathers information, including information regarding the presenting problem, and the applicant's history; and sends the initial paperwork to the applicant.

11. After the initial paperwork is received, the applicant is referred to an evaluator approved by the Department of Health. When IPN receives the evaluation recommendations, the applicant is required to follow the treatment recommendations of the evaluator.

    
    

    
    

12. After treatment is completed, an IPN advocacy contract is developed to provide any monitoring recommended by the evaluator.

13. IPN also considers the information provided by the applicant, in addition to the recommendations of the approved evaluator.

14. Petitioner was evaluated by an approved evaluator.

    
    

    Petitioner's evaluator expressed concern that Petitioner failed to appreciate the potential destabilizing effects of drinking alcohol while attempting to maintain recovery from opiate addiction.

15. Contrary to her testimony at hearing, Petitioner admitted during her IPN intake that alcohol was a problem for her. Petitioner admitted to the physician who evaluated her that she had suffered black-outs several times in the past.

16. Use of a mood-altering drug by a person who is chemically dependent keeps the addict in an active disease state and can result in cross-addiction; this often leads the addict to return to the drug of choice.

17. Chemical dependence is a primary and chronic, progressive, and sometimes fatal disease. There is a vulnerability to relapse, if abstinence from all mood-altering drugs, including alcohol, is not maintained.

    
    

    
    

18. Petitioner is in a high-risk category for relapse on opiates, due to her continuing use of alcohol.

19. As a result, it is reasonable for Petitioner to engage in supportive educational sessions with an IPN-approved therapist and IPN monitoring to lower her risk of relapse.

20. Petitioner is only safe to return to nursing practice if she is under IPN monitoring.

21. While the normal dependency contract with IPN is five years, the recommendation for Petitioner was for a two-year contract, with possible early termination after one year of successful compliance with IPN monitoring.

22. In the opinion of Jean D'Aprix, executive director of IPN, Petitioner is not able to practice nursing with reasonable skill and safety at this time, without IPN monitoring.

23. Petitioner appears to believe that she should not be required to participate in IPN, because she consumed alcohol before she became subject to participation in the Florida IPN, and after being released from the Maryland program. Petitioner does not understand that the issue is the continued use of a mood-altering substance by a person with the disease of chemical dependence, not whether Petitioner was under a monitoring contract at the time she consumed the alcohol.

24. Petitioner generally relies on provisions of the Americans with Disabilities Act (ADA) that prohibits

    
    

    
    

    discrimination for those who are handicapped. In Florida the provisions of the Florida Civil Rights Act states at section 760.10(5), in pertinent part:

    Whenever, in order to engage in a profession

    
    

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    it is required that a person receive a license, certification, or other credential

    
    

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    it is an unlawful employment practice for any person to discriminate against any other person seeking such license, certification, or other credential

    
    

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    because of such other person’s race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

25. However, neither the Board nor IPN is discriminating against Petitioner because she formerly used opiates. The Board of Nursing has expert advice that Petitioner is not safe to practice nursing in Florida without IPN participation.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to sections 120.569, 120.57 and 120.60, Florida Statutes (2010).

27. The Board consists of 13 members acting in its quasi- judicial capacity, charged with the duty to regulate registered

    
    

    
    

    nurses and licensed practical nurses, in the interest of the public welfare. § 464.004, Fla. Stat. The Board is bound by the laws of the State of Florida, in particular, chapter 464 and section 456.076, and in the rules promulgated pursuant thereto, specifically, Florida Administrative Code Chapter 64B9.

28. Section 464.009 provides, in pertinent part:

    
    

    1. The department shall issue the appropriate license by endorsement to practice professional or practical nursing to an applicant who, upon applying to the department and remitting a fee set by the board not to exceed $100, demonstrates to the board that he or she:

       
       

       1. Holds a valid license to practice professional or practical nursing in another state or territory of the United States, provided that, when the applicant secured his or her original license, the requirements for licensure were substantially equivalent to or more stringent than those existing in Florida at that time;

          
          

       2. Meets the qualifications for licensure in s. 464.008 and has successfully completed a state, regional, or national examination which is substantially equivalent to or more stringent than the examination given by the department; or

          
          

       3. Has actively practiced nursing in another state, jurisdiction, or territory of the United States for 2 of the preceding 3 years without having his or her license acted against by the licensing authority of any jurisdiction.

          
          

29. Section 456.076 provides, in pertinent part:

    
    

    1. For professions that do not have impaired practitioner programs provided for

       
       

       
       

       in their practice acts, the department shall, by rule, designate approved impaired practitioner programs under this section.

       The department may adopt rules setting forth appropriate criteria for approval of treatment providers. The rules may specify the manner in which the consultant, retained as set forth in subsection (2), works with the department in intervention, requirements for evaluating and treating a professional, requirements for continued care of impaired professionals by approved treatment providers, continued monitoring by the consultant of the care provided by approved treatment providers regarding the professionals under their care, and requirements related to the consultant’s expulsion of professionals from the program.

       
       

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       (3)(a) Whenever the department receives a written or oral legally sufficient complaint alleging that a licensee under the jurisdiction of the Division of Medical Quality Assurance within the department is impaired as a result of the misuse or abuse of alcohol or drugs, or both, or due to a mental or physical condition which could affect the licensee’s ability to practice with skill and safety, and no complaint against the licensee other than impairment exists, the reporting of such information shall not constitute grounds for discipline pursuant to s. 456.072 or the corresponding grounds for discipline within the applicable practice act if the probable cause panel of the appropriate board, or the department when there is no board, finds:

       
       

       1. The licensee has acknowledged the impairment problem.

          
          

       2. The licensee has voluntarily enrolled in an appropriate, approved treatment program.

          
          

       3. The licensee has voluntarily withdrawn from practice or limited the scope of

          
          

          
          

          practice as required by the consultant, in each case, until such time as the panel, or the department when there is no board, is satisfied the licensee has successfully completed an approved treatment program.

          
          

       4. The licensee has executed releases for medical records, authorizing the release of all records of evaluations, diagnoses, and treatment of the licensee, including records of treatment for emotional or mental conditions, to the consultant.

       
       

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       (f) A finding of probable cause shall not be made as long as the panel, or the department when there is no board, is satisfied, based upon information it receives from the consultant and the department, that the licensee is progressing satisfactorily in an approved impaired practitioner program and no other complaint against the licensee exists.

       
       

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       (5)(b) If in the opinion of the consultant, after consultation with the treatment provider, an impaired licensee has not progressed satisfactorily in a treatment program, all information regarding the issue of a licensee’s impairment and participation in a treatment program in the consultant’s possession shall be disclosed to the department.

       
       

30. Florida Administrative Code Rule 64B31-10.001 provides, in pertinent part:

    1. Definitions:

       
       

       (a) Impaired Practitioner Programs initiate intervention, recommend evaluation, and refer impaired practitioners to Department approved Treatment Providers or Treatment Programs and monitor the progress of

       
       

       
       

       impaired practitioners under the direction of consultants. They are entities which do not provide medical services.

       
       

31. Florida Administrative Code Rule 64B31-10.004 provides, in pertinent part:

    1. Practitioners/Patients shall comply with all of the following in order to maintain satisfactory progress as determined by the professional judgment of the consultant:

       1. Submit to and pay any evaluation or continuing care screening as directed by Department approved Treatment Providers/ Programs or consultant(s).

          
          

       2. Submit all requested progress reports.

          
          

       3. Comply with any agreements between the practitioner and the consultant consistent with Section 455.261, Florida Statutes, which shall include practicing his or her profession in a manner that does not endanger the health, safety, and welfare of the public.

1. A professional license is not a right, but a privilege granted by the state. Borrego v. Ag. for Health Care Admin., 675 So. 2d 666, 668 (Fla. 1st DCA 1996). The administrative agency (Board of Nursing), has "particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation in the conduct of which is a privilege rather than a right." Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 934 (Fla. 1996), citing Osborne Stern & Co. v. Dep't of

   Banking & Fin., 647 So. 2d 245 (Fla. 1st DCA 1994)(Booth, J., concurring and dissenting). Administrative agencies possess discretion in determining whether an applicant should receive a

   
   

   
   

   license, especially when the agency is regulating an occupation which is deemed a privilege rather than a right. Astral

   Liquors, Inc. v. Dep't of Bus. & Prof'l Reg., 463 So. 2d 1130, 1132 (Fla. 1985).

2. The evidence is convincing that Petitioner is in a high-risk category for relapse, and, therefore, Petitioner is only safe to return to nursing practice if she is under IPN monitoring.

3. The ADA provisions relied upon by Petitioner are irrelevant to a determination of whether Petitioner will only be safe to practice under the IPN Advocacy Contract recommended by IPN based on Petitioner's evaluation and history.

4. Petitioner has not established that she is able to practice nursing with reasonable skill and safety unless she is monitored by IPN.

RECOMMENDATION

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

RECOMMENDED that the Board of Nursing, in its final order, approve the application of Olga Marie Hall for licensure as a registered nurse subject to the conditions set forth in the Notice of Intent to Approve with Conditions.

DONE AND ENTERED this 11th day of January, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 2011.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009), unless otherwise indicated.

COPIES FURNISHED:

Olga Marie Hall 15217 Azra Drive

Odessa, Florida 33556

Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Rick Garcia, MS, RN, CCM Executive Director Board of Nursing

4052 Bald Cypress Way, BIN C02 Tallahassee, Florida 32399

Dr. Jessie M. Colin, RN Board Chair

Board of Nursing

4052 Bald Cypress Way, BIN C02 Tallahassee, Florida 32399

E. Renee Alsobrook, 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: 10-009161

Orders for Case No: 10-009161