STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANNA NELSON, A.R.N.P.,

vs.

Petitioner,

Case No. 16-4560F

DEPARTMENT OF HEALTH, BOARD OF NURSING,

Respondent.

/

FINAL ORDER

On November 22, 2016, this case was presented to J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings, for a determination based on exhibits and proposed orders.

APPEARANCES

For Petitioner: Carol C. Schriefer, Esquire

George F. Indest, III, Esquire The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

For Respondent: Louise Wilhite-St Laurent, Esquire

Matthew George Witters, Esquire Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether there was substantial justification under section 57.111, Florida Statutes (2013-2016),1/ for the

Administrative Complaint filed by the Department of Health (DOH) against Joanna Nelson, A.R.N.P., who prevailed and petitioned for attorney’s fees and costs under that statute.

PRELIMINARY STATEMENT

The petition for attorney’s fees and costs in this case was filed on August 11, 2016. On November 2, the parties filed a joint motion to bifurcate the final hearing and first get a determination based on exhibits and proposed orders as to whether DOH’s Administrative Complaint was substantially justified, as defined by section 57.111(3)(e). On November 9, they moved to cancel the final hearing that was scheduled for November 15. The parties’ exhibits and proposed orders were filed on November 22.

FINDINGS OF FACT

1. On August 12, 2013, DOH received a complaint from the Intervention Project for Nurses (IPN) that the Petitioner had been terminated from her IPN contract due to noncompliance with IPN monitoring requirements. DOH began to investigate and obtained the Petitioner’s IPN file.

2. IPN is the impaired practitioner program for the Board of Nursing (Board). § 456.076, Fla. Stat. It monitors the evaluation, care, and treatment of impaired nurses. Id. It

   helps DOH and the Board to determine whether a licensee is impaired and unsafe to practice the profession.

   § 456.076(2)(c)1, Fla. Stat.

   
   

3. The Petitioner’s IPN file indicated that on July 12, 2013, the Petitioner was required to submit a blood sample for a drug screen. On July 22, the Petitioner was notified that she tested positive for alcohol. She was told that she would have to refrain from practice, get evaluated, process the positive drug screen with her sponsor, therapist, and facilitator, and execute a voluntary withdrawal from practice agreement. The Petitioner was given until August 5 to do those things.

4. The Petitioner believed and argued that the drug screen had produced a false positive. On July 23, the Petitioner’s counsel notified IPN that the Petitioner was revoking the authorizations previously given to IPN for the release of the Petitioner’s medical records. IPN informed the Petitioner that it could no longer work with her if she was revoking the medical releases. The Petitioner informed IPN that she no longer wished to be involved with IPN and would not be executing the voluntary withdrawal from practice.

5. On August 6, IPN terminated its contract with the Petitioner for failure to comply with the conditions of her IPN monitoring agreement.

6. In November 2013, DOH presented this information, along with its complete investigative file, which included IPN’s file on the Petitioner, to a probable cause panel for its review and consideration. DOH also presented the written arguments of

   
   

   counsel for the Petitioner that probable cause should not be found because the IPN file did not contain either the positive drug screen from July 22, or any documentation regarding its collection, handling, storage, packaging, transportation, preservation, or testing methodology. In addition, the Petitioner contended that the Phosphatidyl Ethanol (PEth) blood test administered to the Petitioner normally is used for chronic alcoholism and was not appropriate or reliable as used in the Petitioner’s case. The Petitioner also advised DOH that she was taking medication that contained alcohol, without objection from

   IPN.

   
   

7. On November 25, 2013, DOH asked the probable cause panel

   
   

   to find probable cause that the Petitioner was in violation of section 456.072(1)(hh) for being terminated from the IPN program for failure to comply, without good cause, with the terms of her IPN monitoring or treatment contract, and for not successfully completing her drug or alcohol treatment program. The panel considered the DOH investigative file, arguments of counsel for DOH in favor of finding probable cause, and the Petitioner’s arguments against finding probable cause, including the argument that the evidence in the DOH investigative file would not be sufficient to prove the charge in an administrative hearing. The panel chair stated “even though the attorney’s explanations may be relevant, that does not—that does not do anything for the fact

   
   

   that she was terminated from IPN and that she was still in a contract with IPN.” The panel found probable cause, and DOH filed an Administrative Complaint.

8. The Petitioner disputed the charges in the Administrative Complaint and continued to press her arguments regarding the insufficiency of the DOH investigative file. (Subsequent facts are irrelevant to the determination whether there was substantial justification for DOH’s filing of the Administrative Complaint.) See Conclusions of Law.

9. In 2016, the charges were dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

10. Under section 57.111, attorney’s fees and costs can be awarded to a small business party who prevails in an action initiated by a state agency. However, they are not awarded if “the actions of the agency were substantially justified.”

    § 57.111(4)(a), Fla. Stat. Agency action is substantially justified if it had “a reasonable basis in law and fact at the time it was initiated by a state agency.” § 57.111(3)(e), Fla. Stat.

11. The burden is on the agency to prove that its action was substantially justified at the time it was initiated. The agency must demonstrate more than just that its action was not frivolous. However, the agency does not have to prove that its action was correct. Substantial justification is between those

    
    

    standards. The closest approximation is that the agency must present an argument for its action that could satisfy a reasonable person. See Ag. for Health Care Admin. v. MVP

    Health, Inc., 74 So. 3d 1141, 1143-44 (Fla. 1st DCA 2011).

    
    

12. The agency action in this case was initiated by the filing of an Administrative Complaint charging the Petitioner with a violation of section 456.072(1)(hh) for being terminated from the IPN program for failure to comply, without good cause, with the terms of her IPN monitoring or treatment contract, and for not successfully completing her drug or alcohol treatment program.

13. At the time the Administrative Complaint was filed, there was ample justification for the agency action. The Petitioner had been in the IPN program and was being monitored for alcohol abuse. A blood alcohol test came back positive. Instead of cooperating with IPN’s request that she refrain from practice, get evaluated, process the positive drug screen with her sponsor, therapist, and facilitator, and execute a voluntary withdrawal from practice agreement until the matter was resolved, the Petitioner’s response was to revoke her medical release and refuse to further cooperate with IPN. Although the Petitioner raised legitimate issues about the blood alcohol test that triggered IPN’s demands, which would have been appropriate to pursue both by IPN and by DOH as part of the resolution of the

    
    

    matter, the Petitioner’s response gave the probable cause panel and DOH substantial justification to take action and charge the Petitioner with a violation of section 456.072(1)(hh). Put another way, DOH was substantially justified in taking the position that the issues raised by the Petitioner were not good cause for her not complying with the terms of her IPN monitoring or treatment contract, or for not successfully completing her drug or alcohol treatment program.

14. The Petitioner cites McCloskey v. Department of Financial Services, 172 So. 3d 973, 978-79 (Fla. 5th DCA 2015),

in support of her arguments that DOH was required to further investigate the validity of her positive blood screen before filing an administrative complaint and that DOH applied the incorrect law when it did not further investigate. McCloskey is

distinguishable. There, the agency reasonably should have recognized that the statute allegedly violated should not have been applied retroactively to the licensee. No comparable ignorance of the law by the agency occurred in this case.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, the petition for attorney’s fees and costs under

section 57.111 is dismissed.

DONE AND ORDERED this 13th day of December, 2016, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 13th day of December, 2016.

ENDNOTE

1/ The pertinent provisions of the statutes cited in this Final Order have not changed since the conduct that is the subject of the Administrative Complaint in question, which was filed in November 2013.

COPIES FURNISHED:

Carol C. Schriefer, Esquire The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 (eServed)

George F. Indest, III, Esquire The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714 (eServed)

Louise Wilhite-St Laurent, Esquire Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Nichole Chere Geary, General Counsel Department of Health

Bin A-02

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Matthew George Witters, Esquire Department of Health Prosecution Services Unit

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Joe Baker, Jr., Executive Director Board of Nursing

Department of Health Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

Nichole C. Geary, General Counsel Department of Health

Bin C-65

4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 16-004560F

Orders for Case No: 16-004560F