vs.
Respondent.
Case No. 16-4101PL
On September 21, 2016, a final hearing was held by video teleconference at locations in Tallahassee and Jacksonville, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Rob F. Summers, Esquire
Brynna J. Ross, Esquire Prosecution Services Unit Department of Health
The issues to be determined are whether Respondent possessed Dilaudid without a legitimate purpose, and whether Respondent is unable to practice nursing with reasonable skill
and safety, in violation of section 464.018(1), Florida Statutes, as alleged in the Administrative Complaint and, if so, the appropriate penalty.
On May 4, 2016, Petitioner, Department of Health (Department or Petitioner), issued an Administrative Complaint against Respondent, Lisa Michelle Jackson, a registered nurse. The date of Respondent’s receipt of the Administrative Complaint was not disclosed. The complaint charged Respondent with possession of a narcotic, Dilaudid, without a legitimate medical purpose, and with being unable to practice nursing with reasonable skill and safety to patients due to her severe opioid-use disorder, in violation of section 464.018(1).
On or about June 13, 2016, Respondent filed an Election of Rights in which she disputed material facts alleged in the Administrative Complaint and requested an administrative hearing. Timeliness of the filing of the Election of Rights was not an issue.
On July 20, 2016, the petition was referred to the Division of Administrative Hearings. The final hearing was scheduled for September 21, 2016.
On September 16, 2016, the Department filed a Unilateral Pre-hearing Statement of Facts, in which it indicated that efforts to communicate with Respondent regarding the matters
set forth in the Order of Pre-hearing Instructions had been unsuccessful.
The final hearing was convened on September 21, 2016, as scheduled. Respondent appeared at the hearing and indicated that, although she had been trying to get in touch with her witness “for several months,” she had been unable to do so. It seemed unlikely that, under the circumstances, the witness was either willing or able to be located. Respondent did not move for a continuance. Thus, the hearing proceeded.
At hearing, the Department offered the testimony of Robert Gorsuch, a paramedic with the Jacksonville Fire and Rescue Department; Allison Quartano, a registered nurse at St. Vincent’s Riverside Medical Center; and Dr. Erin McBride Johnson, an emergency physician at St. Vincent’s Riverside
Medical Center. The Department offered Petitioner’s Exhibits 1 through 13 in evidence. Petitioner’s Exhibit 10 is the deposition transcript of Respondent. Petitioner’s Exhibit 11 is the deposition transcript of Dr. Eduardo Sanchez, a psychiatrist with a specialty in addiction psychiatry.
Dr. Sanchez was identified as an expert witness. Having reviewed his testimony and CV, it is concluded that Dr. Sanchez has the knowledge, skill, experience, training, and education to assist the undersigned in determining a fact in issue, and is therefore qualified as an expert, entitled to testify in the
form of an opinion. It is further concluded, based on his testimony, the psychiatric evaluation report, and the statements and documents upon which he relied, that his testimony was based upon sufficient facts or data; was the product of reliable principles and methods; and that he applied the principles and methods reliably to the facts of the case.
Petitioner’s Exhibit 13 is the deposition transcript of Sergeant Steven A. Coleman of the Jacksonville Sheriff’s Department. Sergeant Coleman was out of the country at the time of the final hearing. The use of the depositions is authorized by Florida Rules of Civil Procedure 1.330(a) and Florida Administrative Code Rule 28-106.206, and the depositions will be considered and given weight as though the deponents testified in person at the final hearing.
Respondent testified on her own behalf. Respondent offered no other witnesses, and no exhibits.
The record was held open to allow the Department to file original affidavits authenticating the documents received at the final hearing, copies of those affidavits having been previously provided. On September 30, 2015, the Department filed original certifications from the custodians of the records. Thus, the exhibits have been authenticated by evidence sufficient to support a finding that the documents are what the Department claims them to be.
The one-volume final hearing Transcript was filed on October 11, 2016. On October 18, 2016, the Department filed an unopposed Motion for Extension of Time to File Proposed Recommended Order, which requested that the time for filing be extended for 10 days. The Motion was granted, and proposed recommended orders were due on October 31, 2016. Both parties timely filed Proposed Recommended Orders that were considered in preparation of this Recommended Order.
This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d
441 (Fla. 5th DCA 2013). Thus, references to statutes are to Florida Statutes (2015), unless otherwise noted.
The Department of Health, Board of Nursing, is the state agency charged with regulating the practice of nursing in the state of Florida, pursuant to section 20.43, and chapters
456 and 464, Florida Statutes.
At all times material to this proceeding, Lisa Michelle Jackson was a licensed registered nurse in the state of Florida, holding license number RN 9375240.
Respondent’s current address of record is 2358 York Street, Jacksonville, Florida 32207.
On Saturday, November 7, 2015, Respondent left work and picked up her minor son from her parents’ house. She drove home, parked at her front door, and lost consciousness. At some point, Respondent’s parents called her cell phone. The phone was answered by Respondent’s son, who advised them of the situation. Respondent’s parents went to her house, and apparently called emergency medical services.
EMS personnel arrived on the scene and administered Narcan to Respondent. Narcan is a medication that blocks receptors for opioid-based drugs, and is used to reverse the effects of opioids. It is commonly used when medical personnel suspect a patient of an opioid overdose.
Respondent was thereafter transported to St. Vincent’s Riverside Medical Center (Riverside), and admitted with encephalopathy and acute respiratory failure. Respondent had to be placed on a respirator. A urine drug screen was performed, which returned positive for benzodiazepines and opiates. Riverside related the encephalopathy and respiratory failure to a suspected drug overdose.
Respondent denied having taken anything containing benzodiazepines. She did indicate that approximately a year earlier she had undergone a tooth extraction, for which her dentist had prescribed Percocet. She had some left over, and
testified that she had taken some for back pain several days before November 7, 2015.
Respondent was discharged from Riverside on November 9, 2015, at approximately 11:40 a.m.
After her discharge from Riverside on November 9, 2015, but later that afternoon, Respondent was speaking with her mother on the telephone. Respondent’s mother did not like the way she sounded, and came to the house. Respondent’s mother believed that Respondent was lethargic, but Respondent admitted only to being tired from her earlier hospital stay. EMS was called, and Respondent was again transported to Riverside, where she was admitted at approximately 5:45 p.m. Her diagnosis on admission was hypertensive disorder. She self-discharged against medical advice, signing the discharge papers at
6:36 p.m. There was no evidence that Respondent’s admission to Riverside on November 9, 2015, was the result of the use or abuse of any substance.
On November 20, 2015, Respondent and Carl Nesmith were at Respondent’s residence. Respondent testified that she was experiencing back pain. At some time during the evening, Respondent took three or more Dilaudid tablets. Respondent testified that the tablets belonged to Mr. Nesmith, though the evidence was not sufficient to support a finding to that effect. Nonetheless, by the time of the arrival of the EMS team and her
subsequent admission to Riverside as described herein, the tablets were in her possession.
Dilaudid is a brand name of hydromorphone, an opioid.
Pursuant to section 893.03(2)(a)1.k., Florida Statutes, hydromorphone is a Schedule II controlled substance that “has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.” Respondent did not have a prescription for Dilaudid.
At some point during the evening of November 20, 2015, Respondent passed out in her bathroom. EMS was called and dispatched to Respondent’s residence. The inference is that Mr. Nesmith called them, but since Respondent was unconscious, and Mr. Nesmith did not testify, the identity of the caller is not known. More to the point, the identity of the caller is not relevant.
When EMS personnel arrived, they found Respondent unresponsive on the bathroom floor. Mr. Gorsuch recognized Respondent’s symptoms, including agonal breathing, as characteristic of an opioid overdose, and administered Narcan to counteract the effects of the suspected drug. The Narcan “worked,” and Respondent regained consciousness.
EMS personnel discovered a plastic bag with loose pills in Respondent’s purse. The pills were taken with Respondent as she was transported by EMS to Riverside.
Respondent was received at the Riverside emergency room shortly after midnight on November 21, 2015. Her condition was described as “drowsy but arousable with slurred speech.”
Upon her arrival at Riverside, Ms. Quartano observed that Respondent was clutching a Ziplock-type bag of pills in her hand. How the pills came to be in her hand was not explained. Whether in her purse or in her hand, the pills were in Respondent’s possession. The pills were provided to Dr. McBride Johnson, who identified the pills as Dilaudid based on their shape, color, and markings.
Respondent’s diagnosis upon admission was acute encephalopathy; poisoning by unspecified drugs, medicaments, and biological substances, accidental, initial encounter; and altered mental status.
Respondent underwent a urine screening, which returned positive for benzodiazepines.
Despite the fact that Respondent knew that she had taken “pills” during the evening in question, she denied to hospital personnel that she had taken any drugs or alcohol.
As she had on November 9, 2015, Respondent self- discharged against medical advice, signing the discharge papers
at 5:30 a.m. Upon her discharge from the hospital, Respondent was taken into custody by Sergeant Coleman from the Jacksonville Sheriff’s Office.
Respondent told Sergeant Coleman that the Dilaudid had been given to her by a friend for back pain, and that she had them for several days.
Despite her deposition testimony that she had taken pills allegedly provided to her by Mr. Nesmith, she told Sergeant Coleman that she had taken one of her previously prescribed Percocet tablets, and denied having taken any of the pills given to her by her “friend.” Respondent was then placed under arrest.
Respondent’s mother had, for years, taken care of Respondent’s son while Respondent was working, often at night. Between November 2015 and January 2016, Respondent’s parents took over primary care of her son in order to provide him with a more stable environment.
There is no evidence that Respondent ever diverted opioids, or any other drugs, from her employer. However, after having been visited by a Department of Health investigator, Respondent’s employer, University of Florida Health - Shands (Shands), first suspended and then, in January 2016, terminated Respondent’s employment as a registered nurse.
On February 14, 2016, a Jacksonville Sheriff’s Deputy performed a traffic stop on Respondent after observing her fail to maintain her lane of traffic, stop past the stop bar at a stop light, drive up onto the curb nearly striking a pole, drive onto another curb and nearly onto the sidewalk, and while attempting to negotiate a turn, nearly strike another pole.
The deputies called to the scene observed that Respondent had bloodshot eyes, slurred speech, lethargic movements, and that she was unsteady on her feet. She underwent Field Sobriety Exercises but failed to perform them to standard.
Respondent testified that she had taken some over-the- counter sleeping medication at least 12 hours before being stopped. She could think of no reason why such medications would have had an effect on her by the time of the stop.
Respondent stated that her erratic driving was caused by her vehicle pulling to the right and being difficult to control, which was consistent with her deposition testimony that it was because her car needed an alignment. That explanation was not believable.
Respondent was arrested for driving while under the influence. The charges were ultimately reduced to reckless driving, but Respondent was required to attend DUI driving school, attend the DUI Victim Impact Panel, and perform community service.
On March 15, 2016, Respondent was walking from her mother’s house to her car when she passed out in her mother’s yard. The Jacksonville Fire and Rescue Department responded, arriving at approximately 12:15 p.m. The EMS personnel administered Narcan to Respondent, and transported her to Baptist Medical Center (Baptist). By the time she arrived, she was able to communicate with medical personnel, and attributed the incident to a fight with her mother, and lightheadedness from not eating that day.
Respondent testified that “they told me at the hospital that I had morphine in my system, and I had no morphine.” Respondent’s understanding of what she was told is not substantiated by the Baptist medical records. Thus, the evidence is not sufficient to support a finding that Respondent had morphine in her system on March 15, 2016. Respondent was discharged from Baptist at approximately 1:15 p.m., about an hour after her arrival.
Beginning “towards the end of 2015,” and extending “maybe up until March or April [2016], maybe a little later,” Respondent went to the Jacksonville Metro Treatment Center where she received daily methadone treatments in an effort to wean herself off of controlled substances. She “somewhat” received counseling, but the substance of her testimony indicates that the methadone was the driving cause of her visits to the
treatment center. She stopped attending the treatment center due to the cost.
From April 2016, when she stopped receiving methadone treatment at the Jacksonville Metro Treatment Center, until June or July 2016, Respondent received outpatient Suboxone treatment at Merit Health River Region, which accepts Medicaid. Suboxone is like methadone, but it blocks opioid receptors. Respondent stopped going to River Region because it was hard for her to get there due to transportation issues. Respondent did not complete her treatment, and she was not advised that she was in remission or that she should discontinue her treatment. Respondent has received no substance abuse treatment since she stopped going to River Region.
On or about March 17, 2016, Dr. Sanchez evaluated Respondent as allowed by section 464.018(1)(j). The evaluation included not only a face-to-face interview with Respondent, but included a review of records, including medical and law enforcement records, related to each of the incidents described herein.
During the evaluation, Respondent advised Dr. Sanchez that she had used opioids “opportunistically” for about 10 years, with her usage being sporadic and impulsive.
Respondent further advised Dr. Sanchez that she had used a Fentanyl patch three to four days prior to the
evaluation. Pursuant to section 893.03(2)(b)9., Florida Statutes, Fentanyl is a Schedule II controlled substance with the same potential for abuse as Dilaudid. Respondent did not have a prescription for Fentanyl. Dr. Sanchez opined that Respondent’s use of Fentanyl that close to the evaluation, with the risk of detection in the toxicology screen, was an indication of the strength of her addiction.
Respondent did not tell Dr. Sanchez about the March 15, 2016, incident during which she passed out in her
mother’s yard, an incident that occurred only two days prior to the evaluation. She agreed that the incident would have been relevant to Dr. Sanchez’s evaluation. The failure to disclose the incident is indicative of an evasive attitude towards matters that would reasonably be expected to affect Respondent’s ability to practice nursing with reasonable skill and safety.
Dr. Sanchez noted that Respondent had a history of emergency room visits over extended periods of time with different pain complaints, including back pain, abdominal pain related to gastric bypass surgery, and a broken tooth, all of which resulted in recommendations for short-term opiate therapy. Dr. Sanchez opined that Respondent’s actions suggested drug- seeking behavior. However, the maladies described, including a bulging disc from a car accident, and chronic tooth issues including, at the time of the evaluation, an abscess, were
diagnosed by physicians, who prescribed pain management medications, and were not illusory.
Regardless of whether Respondent’s use of opioids was initiated as a result of a medically-prudent prescription, the evidence is clear and convincing that Respondent’s use has passed to the stage of addiction.
Dr. Sanchez opined that the incident on November 7, 2015, when Respondent took some form of opioid and picked up her child on the way home, ultimately losing consciousness at the wheel of her car, was evidence of a strong compulsion to use opioids. Dr. Sanchez’s opinion that this incident indicated a significant lack of judgment and control is credited.
The incident on November 20, 2016, is further strong evidence of a growing and dangerous addition. In light of the other incidents described herein, and Respondent’s familiarity with opioids over the years, both as a patient and a nurse, Respondent’s testimony that she did not understand what she was taking that evening is simply not credible.
Dr. Sanchez stated the circumstances surrounding Respondent’s February 14, 2016, arrest for driving under the influence is further evidence that Respondent was “losing control” of her addiction. The suggestion that the incident was the result of poor alignment is not credible, particularly in
light of Respondent’s appearance and performance during the stop.
Dr. Sanchez determined that Respondent refuses to accept responsibility for her behavior and remains in denial of her substance abuse issues, a conclusion that is supported and accepted.
As a result of his evaluation, Dr. Sanchez diagnosed Respondent with severe opioid use disorder. He opined that Respondent has significantly impaired judgment due to her substance abuse, which precludes her from functioning as a registered nurse with the necessary skill and safety to patients. His testimony is credited.
Dr. Sanchez further opined that Respondent requires an extended period of continuous supervision with monitoring, substance abuse treatment, random toxicology testing, and an extended period of time of documented abstinence from controlled substances before Respondent would be able to practice nursing with sufficient skill and safety to patients. He recommended that Respondent complete a full course of treatment geared to substance abuse and chemical dependency, initially as inpatient treatment, followed by an intensive outpatient program after a reasonable period of abstinence.
Finally, Dr. Sanchez recommended that Respondent execute an Intervention Project for Nurses (IPN) monitoring
agreement. IPN is the impaired practitioner program for the Board of Nursing, pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department for the protection of the public.
Respondent has not entered any form of inpatient treatment, though she indicated that she is currently on a wait- list for inpatient treatment, has discontinued outpatient treatment, and has not entered into an IPN agreement.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 456.073(5), 120.569, and 120.57(1), Fla. Stat. (2016).
The Department has authority to investigate and file administrative complaints charging violations of the laws governing registered nurses. § 456.073, Fla. Stat.
Standards
Sections 464.018(1)(i) and (j) provide, in pertinent part, that:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
Engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes authorized by this part.
Being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the licensee is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department A
nurse affected by the provisions of this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that she or he can resume the competent practice of nursing with reasonable skill and safety to patients.
Burden and Standard of Proof
The Department bears the burden of proving the specific allegations that support the charges alleged in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne
Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health, 994 So. 2d
416 (Fla. 1st DCA 2008); Pou v. Dep’t of Ins. & Treasurer,
707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof:
[E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with
approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is
ambiguous." Westinghouse Electric Corp. v. Shuler Bros.,
590 So. 2d 986, 989 (Fla. 1st DCA 1991).
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla.
1973). Penal statutes must be construed in terms of their literal meaning and words used by the Legislature may not be expanded to broaden the application of such statutes. Thus, the provisions of law upon which this disciplinary action has been brought must be strictly construed, with any ambiguity construed against Petitioner. Elmariah v. Dep’t of Bus. & Prof’l Reg.,
574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.
Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100
(Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d 528,
531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. & Treasurer,
585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
The allegations of fact set forth in the Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v. Dep’t of
Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the
scope of this proceeding is properly restricted to those matters
as framed by Petitioner. M.H. v. Dep’t of Child. & Fam. Servs.,
977 So. 2d 755, 763 (Fla. 2d DCA 2008).
Hearsay
Police Reports
Section 90.803(8), Florida Statutes, entitled Public Records and Reports, provides, in pertinent part, that:
Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness.
Respondent’s statements as contained in the police report of the November 20-21, 2015, incident are hearsay, as is the report itself. However, it would be admissible over objection in a civil trial since it falls within the public records hearsay exception in section 90.803(8). The public records exception is limited to “matters observed pursuant to duty imposed by law as to matters which there was a duty to report.” The police report, as substantiated by the testimony of its author, falls squarely within the public records exception.
The hearsay exception established in section 90.803(8) does not extend to police reports used in criminal cases. The
reason, as stated by Professor Ehrhardt, “is based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observation by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant.” Charles W. Ehrhardt, Ehrhardt’s Florida Evidence
§ 803.8 (2016 Ed.). This matter is not a criminal case, and the statements in the report fall within an exception to the hearsay rule, thus allowing reliance on them regardless of corroboration.
Hospital Records
Section 90.803(4), entitled Statements for Purposes of Medical Diagnosis or Treatment, provides that:
Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
Here, Respondent’s statements contained in the medical records offered in evidence were made to medical personnel, and were clearly made in connection with Respondent’s diagnosis or
treatment. Respondent’s statements, as reflected in the authenticated hospital records, fall within section 90.803(4).
Admissions
The statements of Respondent, as reflected in the police reports and hospital records, constitute Respondent’s “own statement[s] in either an individual or a representative capacity,” and thus fall within the purview of section 90.803(18).
Weight
The determination of the weight to be given the police report and hospital records, as is the case with all evidence, remains within the province of the trier of fact.
Analysis
Count I
Count I of the Administrative Complaint alleges that:
Respondent has violated Section 464.018(1)(i), Florida Statutes (2015), by engaging or attempting to engage in the possession, sale, or distribution of controlled substances as set forth in Section 893, for any other than legitimate purposes.
The Department presented clear and convincing evidence to establish that Respondent engaged in the possession of Dilaudid, a controlled substance, without a legitimate purpose.
Thus, Petitioner proved that Respondent violated section 464.018(1)(i) as alleged in Count I of the Administrative Complaint.
Count II
Count II of the Administrative Complaint alleges that: Respondent has violated Section
464.018(1)(j), Florida Statutes (2015), by
being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics or chemicals or any other type of material or as a result of any mental or physical condition.
The Department presented clear and convincing evidence to establish that Respondent was diagnosed with severe opioid use disorder; that based on Respondent’s diagnoses as well as her medical and drug use history, she is unable to practice nursing with reasonable skill and safety to patients. Thus, Petitioner proved that Respondent violated section 464.018(1)(j) as alleged in Count II of the Administrative Complaint.
The Department further proved, by clear and convincing evidence, that Respondent will not be able to practice nursing with reasonable skill and safety to patients until she undergoes treatment at a residential treatment center followed by outpatient treatment; enters into an IPN monitoring agreement; undergoes random toxicology testing; and has a documented extended period of abstinence from controlled substances.
Penalty
Pursuant to section 456.072(2), the Board of Nursing may impose one or more of the following penalties: suspension or permanent revocation of a license; restriction of practice of license; imposition of an administrative fine; issuance of a reprimand or letter of concern; placement of the licensee on probation for a period of time; corrective action; and remedial education.
Florida Administrative Code Rule 64B9-8.006(3)(g) establishes the range of penalties for a first offense of section 464.018(1)(i) or section 464.018(1)(j) is from a $250 fine, suspension, and IPN evaluation to a $500 fine and suspension.
Rule 64B9-8.006(5)(b) establishes the following aggravating and mitigating circumstances:
The danger to the public.
Previous disciplinary action against the licensee in this or any other jurisdiction.
The length of time the licensee has practiced.
The actual damage, physical or otherwise, caused by the violation.
The deterrent effect of the penalty imposed.
Any efforts at rehabilitation.
Attempts by the licensee to correct or stop violations, or refusal by the licensee to correct or stop violations.
Cost of treatment.
Financial hardship.
Cost of disciplinary proceedings.
Factors (a), (e), and (g) are aggravating factors in this case. Factors (b) and (i) are mitigating factors in this case.
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:
DONE AND ENTERED this 29th day of November, 2016, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2016.
Rob F. Summers, Esquire Brynna J. Ross, Esquire Prosecution Services Unit Department of Health
Nichole C. Geary, General Counsel Department of Health
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.
