Findings Of Fact Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent is licensed to practice medicine in the state of Florida. She holds license number ME 0028693. 3 Respondent, a native of Manila, Philippines, attended medical school and received her M.D. degree in 1965 from Manila Central University. She completed an internship and residency in OB-GYN in Manila before immigrating to the United States in 1968. Respondent became a citizen of the United States in 1972. She obtained her license to practice medicine in the state of Florida in 1973. Thereafter, Respondent completed a residency in general practice in Portsmouth, Virginia, and a residency in pathology in Norfolk, Virginia. She is not board certified. Prior to October 23, 1996, Respondent was engaged in a solo practice of general and family medicine. Except for this proceeding, Respondent has never been the subject of disciplinary action in connection with her medical license. She has never had a medical malpractice claim asserted against her. Fiorinal No. 3 or Fiorinal with codeine is a legend drug as defined by Section 465.003(7), Florida Statutes. Fiorinal No. 3 is also a Schedule III controlled substance which is listed in Section 893.03, Florida Statutes. In March of 1991, Respondent began treating Patient G.C. for symptoms related to menopause and anxiety. Respondent's record of G.C.'s initial visit indicates that G.C. is allergic to penicillin and codeine. G.C. made 46 visits to Respondent's office from March 12, 1991 through February 21, 1995. On 37 of these visits, Respondent's records note G.C.'s allergy to codeine. On September 19, 1991, G.C. complained that her knee and calf on her right leg were hurting. Respondent ordered a venogram and prescribed Lorcet Plus for G.C. On December 13, 1991, G.C. complained that she had a cough, sore throat, and congestion. Respondent prescribed Lorcet Plus for G.C. in addition to other medication. G.C. made 15 visits to Respondent's office from June of 1995 through September of 1996. Respondent's records of these visits do not note G.C.'s allergy to codeine. Respondent did not charge G.C. for six of these visits. G.C. complained of pain and swelling in her left elbow on October 31, 1995. Respondent treated G.C. for bursitis and gave her a prescription for Fiorinal No. 3. Respondent did not charge G.C. for this visit. G.C. complained of pain in her elbow again on December 19, 1995. Respondent treated G.C. for bursitis and prescribed Fiorinal No. 3. Respondent did not charge G.C. for this visit. Respondent's records indicate that she saw G.C. for the last time on September 20, 1996. The records do not indicate the purpose of the visit. There is a notation which states, "Last time I'll give this Rx to her," followed by three prescriptions including Fiorinal No. 3. Respondent testified that she prescribed Fiorinal for G.C. because she had previously taken Lorcet with no problems or reactions. Lorcet, like Fiorinal, contains codeine. Allergic reactions to codeine can range from mere rashes to life-threatening problems. Accordingly, prescribing Fiorinal No. 3 for G.C. was contraindicated. Respondent concedes that G.C.'s medical chart was deficient in several ways. It failed to contain an adequate medical history, failed to reflect proper physical examinations, failed to reflect adequate tests and lab studies, and failed to fully document conditions/symptoms to warrant treatment rendered, including medications prescribed. Respondent and G.C. developed a social relationship in 1995. Respondent and G.C. were taking trips together, going out to eat together, and seeing each other quite often in a social setting. G.C. told Respondent that some investors in Sicily wanted to buy Respondent's medical practice. Respondent and the foreign investors could not agree on the terms of sale. Respondent lent G.C. a large sum of money in cash. G.C. would not re-pay the loan or acknowledge the debt. The friendship between G.C. and Respondent began to deteriorate. In March of 1996, G.C. contacted Lynn Flanders, a narcotics investigator from the Escambia County Sheriff's Department. G.C. informed Ms. Flanders that Respondent had written a prescription for Fiorinal No. 3 in G.C's name with the intention of diverting the medicine for her own consumption. The prescription was dated January 15, 1996. Respondent's records do not indicate that G.C. made a visit to Respondent's office in January of 1996. G.C. planned to meet Respondent at a restaurant on March 19, 1996. Before the meeting, Investigator Flanders had the prescription filled at a local drug store. She equipped G.C. with an audio listening device. Ms. Flanders also searched G.C.'s car and person. Finding no drugs or money in G.C.'s possession, the investigator gave the bottle of Fiorinal capsules to G.C. and sent her to meet Respondent at the restaurant. Investigator Flanders seated herself in the restaurant so that she could observe Respondent and G.C. during the meal. Respondent never left the table. Ms. Flanders was unable to observe G.C. when the confidential informant went to the ladies' room. The investigator did not see G.C. hand the prescription bottle to Respondent. After Respondent and G.C. ate lunch, they left the restaurant. Investigator Flanders subsequently discovered that the audio tape was inaudible. Ms. Flanders told G.C. to call the sheriff's office if the doctor gave her another prescription and asked her to get it filled. As referenced above, Respondent gave G.C. a prescription for Fiorinal No. 3 on September 20, 1996. Although the prescription was in G.C's name, Respondent intended to consume the medicine herself. G.C. contacted Investigator Flanders again. She told Ms. Flanders about the prescription. The investigator took the prescription and had it filled at a local drug store. G.C. planned to meet Respondent at another restaurant on September 15, 1996. Before the meeting, Investigator Flanders equipped G.C. with an audio listening device, searched her car and person, gave her the bottle of Fiorinal No. 3 capsules, and sent her to meet Respondent. Investigator Shelby and his partner arrived at the restaurant before G.C. or the Respondent. Investigator Shelby positioned himself in the restaurant so that he could observe G.C. and Respondent. Investigators located outside of the restaurant monitored the listening device. They recorded the conversation between Respondent and G.C. Investigator Shelby saw G.C. take the bottle containing 30 Fiorinal No. 3 capsules from her shirt pocket and pass it under the table to Respondent. Respondent leaned forward, accepted the bottle under the table, and placed it in her purse. Respondent left the restaurant and entered her vehicle. She was then placed under arrest. The bottle of medicine, containing 30 capsules, was recovered from her purse. Respondent's testimony that she did not intend to divert the narcotic for her own consumption is not persuasive. Criminal charges against Respondent are being processed through the Pretrial Intervention Program for nonviolent first offenders. Charges against Respondent will be dismissed if she does not commit any offense for ten months after March 27, 1997, and provided that she satisfactorily completes the program. As part of the ten-month probation, Respondent agreed to voluntary urinalysis and compliance with the mandates of her recovery program through the Physician's Recovery Network (PRN). Respondent has a history of chronic daily headaches and hypertension. She has been taking Fiorinal No. 3 which contains codeine and aspirin since 1972. Respondent was diagnosed with a bleeding ulcer just before her arrest in September of 1996. Her treating physician prescribed Fioricet which contains codeine but no aspirin. Respondent accepted this prescription without telling her treating physician about her codeine dependency. Respondent divorced her husband for the second time in August of 1996. Around the time of her arrest, Respondent experienced a lot of stress as a result of her relationship with her ex-husband. PRN is Florida's impaired practitioner program. Pursuant to contract with Petitioner, PRN offers educational intervention, treatment referral, and rehabilitation monitoring services for health care workers in Florida. The PRN's director, Dr. Roger Arthur Goetz, became aware of Respondent's arrest on October 3, 1996. On his recommendation, Respondent voluntarily agreed to undergo an evaluation by the following three doctors in Pensacola, Florida: (a) Dr. Rick Beach, an addiction specialist; (b) Dr. Doug H. Fraser, a board certified psychiatrist; and (c) Dr. Thomas Meyers, a psychologist. Dr. Beach and Dr. Meyers agreed that Respondent was impaired due to a substance abuse problem. All three doctors agreed that Respondent suffered from a depressive disorder and other psychological problems. Dr. Beach, the addictionologist, determined that Respondent had a dysfunctional relationship with her ex-husband, an unhealthy relationship with G.C., and a probable dependence on opiates. Dr. Fraser, Respondent's psychiatrist, diagnosed Respondent with generalized anxiety disorder and dysthymia. Generalized anxiety disorder is a life-long disorder from which the patient experiences a chronic sense of nervousness, tension, and worry. A patient suffering from this condition will have some physical symptoms such as gastrointestinal problems, headaches, muscle tension, or difficulty sleeping. Dysthymia is also a chronic life-long disorder which causes patients to suffer from chronic minor depression more days than not. On October 23, 1996, Respondent entered into a Voluntary Agreement to Withdraw from Practice with Petitioner. This agreement states that Respondent shall cease practicing medicine until Petitioner issues a Final Order in this case. On November 4, 1996, Respondent entered Jackson Recovery Center in Jackson, Mississippi. This facility was an in-patient substance abuse treatment center. Respondent's treating physician, Dr. Lloyd Gordon, admitted her for treatment with the following diagnosis: (a) Axis I, opioid dependence and dysthymia with anxiety; and (b) Axis II, avoidant and dependent traits. Respondent subsequently entered a residential treatment program, the Caduceus Outpatient Addictions Center (COPAC), in Hattiesburg, Mississippi. COPAC specializes in the treatment of physicians and other health care workers who abuse controlled substances. Respondent remained in this residential program for almost three months. She was discharged from COPAC on February 21, 1997. Respondent signed an Advocacy Contract with PRN the day that she was discharged from COPAC. The contract established a five-year monitoring period during which Respondent agreed to abide by certain terms and conditions, including but not limited to, the following: (a) to participate in a random urine drug and/or blood screen program; (b) to abstain from the use of controlled substances; (c) to attend group self-help meetings such as AA or NA; (d) to attend continuing care group therapy; and (e) to attend a twelve-step program for recovering professionals. In March of 1997, Respondent went to her office to see patients. She wrote prescriptions for some of these patients. She was under the impression that she could return to her practice because she had been therapeutically cleared to practice by COPAC. PRN learned that Respondent was practicing medicine in violation of her agreement to voluntarily withdraw from practice. PRN advised Respondent that she could not go into her office to see patients or write prescriptions until Petitioner gave her that right. Respondent immediately ceased her practice. Upon her discharge from COPAC, Respondent continued to see her psychiatrist, Dr. Fraser. In May of 1997, Respondent told Dr. Fraser that she was experiencing forgetfulness and panic attacks. She complained of having difficulty making decisions and sleeping. Respondent was feeling depressed and having suicidal thoughts. Dr. Fraser increased her antidepressant medication and referred her to a local counseling center. Respondent went to visit her family in California from May 25, 1997 through June 6, 1997. She did not tell Dr. Fraser that she was going out of town. However, she did tell one of the therapists from Dr. Fraser's office about the trip. Respondent saw Dr. Fraser again on June 18, 1997, when she returned to Pensacola. He made a tentative diagnosis of bipolar disorder and began appropriate treatment. Respondent was feeling better when she saw Dr. Fraser on June 25, 1997. Respondent moved to California to live with her sister on July 6, 1997. This move was necessary because Respondent had lost her home as well as her practice. While she was in California, Respondent saw a psychiatrist, Dr. Flanagan. She also attended AA meetings in California. Respondent returned to Pensacola a week before the hearing. She saw Dr. Fraser on August 21, 1997. Dr. Fraser was not aware that Respondent had been living in California and receiving treatment from Dr. Flanagan. During her visit with Dr. Fraser, Respondent admitted that she had a craving for codeine when she was tense. However, she denied use of any prescription drugs except those being currently ordered by her doctors. Respondent reported on-going mood swings even though Dr. Flanagan had increased her Depakote. She verbalized fantasies involving violent behavior toward G.C. Respondent revealed that she was experiencing grandiose delusions. She admitted that she was not ready to return to medical practice. Dr. Fraser concurs. Respondent needs intensive individual psychotherapy for at least six months on a weekly basis. At the time of the hearing, Respondent had not begun such therapy. The record indicates that Respondent was a caring and compassionate physician. Respondent's elderly patients testified that Respondent treated them with extraordinary concern when other doctors refused. Respondent's colleagues in nursing home settings attested to her skill and proficiency in the care of the elderly. None of these patients or associates were aware of Respondent's drug dependence or psychological problems before her arrest. Respondent is "in recovery" for her drug dependence. However, she is not mentally, emotionally, or psychologically ready to practice medicine with reasonable skill and safety for her patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order indefinitely suspending Respondent's license to practice medicine until she is able to demonstrate the ability to practice with reasonable skill and safety followed by five years of probation with appropriate terms, conditions, and restrictions, and imposing an administrative fine in the amount of $4,000. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James M. Wilson, Esquire Wilson, Harrell and Smith, P.A. 307 South Palafox Street Pensacola, Florida 32501 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact GENERAL In November 1983, Pasco filed an application with DHRS to build and operate a freestanding psychiatric and substance abuse facility in Pasco County. Pasco is a Florida corporation and is a wholly owned subsidiary of Florida Health Facilities, Inc., which is a wholly owned subsidiary of United Medical Corporation (UMC). DHRS' initial notice of intent to deny Pasco's application was issued on April 13, 1984. On May 3, 1984, Pasco timely filed its petition for formal administrative hearing. (DOAH Case No. 84-1933). Thereafter, DHRS reconsidered its initial decision, and on November 20, 1984, DHRS and Pasco entered into a Stipulation, and DHRS issued CON No. 3053 to Pasco in February 1985. (DOAH Case No. 84-1933 was subsequently, dismissed as the result of this reconsideration.) Following publication of DHRS' decision to issue the CON, petitions for formal hearing were filed by Horizon and Hernando, UPC, CHNPR, and Harborside Hospital, Inc., and petitions to intervene were filed by Community Care, Morton Plant and PIA Medfield, Inc., d/b/a Medfield Center. The petitions were consolidated and resulted in the cases at bar--DOAH Consolidated Case Nos. 85-0780, 85-1513 and 85-2346. Harborside Hospital, Inc., Petitioner in Case No. 85-2392, and PIA Medfield, Inc., d/b/a Medfield Center, Intervenor in Case No. 85-0780, subsequently voluntarily dismissed their petitions and are not parties to this proceeding. Horizon is a freestanding psychiatric facility located at 11300 U.S. 19 South, Clearwater, in Pinellas County, in District V. Hernando is an approved, as of September 1984, but as yet unopened 50-bed freestanding psychiatric facility to be located at the intersection of S.R. 50 and Clay Street in Brooksville, Hernando County. Hernando County is in District III. Hernando's bed complement will consist of 35 short-term psychiatric beds, 15 short-term substance abuse beds and a 10-bed crisis stabilization unit. UPC is an approved but yet unopened 114-bed psychiatric teaching facility to be located on the campus of the University of South Florida in Hillsborough County, in District VI. Its bed complement does not include licensed substance abuse beds. CHNPR is a 414-bed acute care hospital located in Pasco County, Florida, in District V. As part of its bed complement, the hospital operates a 46-bed psychiatric unit. Its complement does not include licensed substance abuse beds. Morton Plant is a 745-bed acute care hospital located in Pinellas County, District V. As part of its bed complement, the hospital operates a 42-bed psychiatric unit. Its bed complement does not include licensed substance abuse beds. Community Care is an approved but as yet unopened 88-bed psychiatric facility to be located in Citrus County in District Its bed complement includes 51 short-term psychiatric beds and 37 long-term substance abuse beds. Its bed complement does not include licensed short-term substance abuse beds. Pasco originally proposed to construct and develop an 80-bed short-term psychiatric and substance abuse facility, composed of 60 general adult beds, 10 adolescent beds and 10 substance abuse beds (Exhibit 4). As a result of negotiations with DHRS, Pasco revised its proposal to a 72-bed facility composed of 35 general adult beds, 20 adolescent beds and 17 substance abuse beds (Exhibit 4, paragraph 1; Exhibit 11). As a condition to DHRS' agreement to grant the Certificate of Need, Pasco has agreed to provide at least 10 percent of its patient days to residents of Pasco County eligible under the provisions of the Baker Act or who are indigent, and to locate its facility no less than five miles east of the intersection of U.S. Highway 19 and County Road 587 (Exhibit 4, paragraphs 3, 4). The revised project cost, excluding working capital, totals $6,328,981.00 (Exhibit 6). BED NEEDS Applications for certificates of need must be consistent with criteria contained in Section 381.494(6)(c) as well as applicable rules of the agency. Subsection 1 of Section 381.494(6)(c) requires DHRS determine the proposal is consistent with: The need for the health care facilities and services and hospices being proposed in relation to the applicable district plan and State Health Plan adopted pursuant to Title XV of the Public Health Service Act except in emergency circumstances which pose a threat to the public health. The State Health Plan adopted addresses need through the year 1987, which is not the target year applicable to this case. The Plan indicates the need for short-term psychiatric and substance abuse beds should be determined based on the need methodologies found in Chapter 10-5.11(25) and 10-5.11(27) (Exhibit 27, page 6). DHRS' rules establish specific criteria to be used in evaluating and acting on CON applications for psychiatric and substance abuse services and facilities. Chapter 10-5.11(25) and 3-5.11(27), Florida Administrative Code. Psychiatric Bed Need In District V Rule 5-11.25, Florida Administrative Code, allocates .35 beds per 1,000 population in each district for psychiatric beds. Of those, not less than .15 per 1,000 population may be allocated within acute care general hospital settings and no more than .20 per 1,000 population may be located in freestanding psychiatric facilities. The differentiations recognize Medicaid reimburses facilities for psychiatric services provided in the acute hospital setting, but not in the freestanding setting, assuring at least some financial access to services for Medicaid patients and allows the agency, from a policy standpoint, to weigh the cost and benefits of building new facilities on one hand against adding additional beds at existing facilities (Exhibit 26, page 3). The Office of Comprehensive Health Planning, under the signature of the Deputy Assistant Secretary of Health Planning and Development, has published the agency's Short-Term Psychiatric Bed Counts and Projected Bed Needs for 1990. On a district wide basis, the agency's document indicates a total gross need for 401 beds. There exist 372 licensed beds and no CON approved but unlicensed beds in District V. Morton Plant received preliminary approval for 22 beds but its application was subsequently denied by Final Order. See, Morton F. Plant Hospital Assn., Inc. v. DHRS, DOAH Case No. 83-1275, Final Order Oct. 8, 1985. Therefore, there currently exists a net projected need for 29 short-term psychiatric beds in District V for 1990. Final approval of the application here would result in a district surplus of 26 beds, an increase in beds of less than 7 percent over the projected 1990 numerical need. This 26-bed surplus would replace the 29-bed need after the 55 beds granted to Pasco are considered (Exhibit 27, pages 15-16). The projected numerical surplus for psychiatric beds in District V is due to an excess of 114 beds located in South Pinellas County. However, access problems to Pasco residents may, in fact, be one of the reasons for this excess (Exhibit 10, page 3). Rule 10-5.11(25) projects the need at the district level, leaving the specific allocation to the agency and to the Local Health Council by identifying particular areas within the district that may need additional beds through use of the Local Health Plan (Exhibit 26, page 3). The Local Health Council's 1985 plan projects needed beds to the target year 1990 and projects need by subdividing District V on a geographic basis of East and West Pasco and North and South Pinellas Counties (Exhibit 8, page 110, Tables 8 and 11; Exhibit 10, page 2). The Plan establishes subdistricts identical to those subdistricts which have been designated for acute care beds (Exhibit 8, page 110, Tables 8 and 11; Exhibit 10, page 2; Exhibit 27, page 8). The subdistrict concept evidences a rational division of the District's population and healthcare communities (Exhibit 10, page 2; Exhibit 27, page 8). In view of the poor transportation situation in Pasco County as well as traffic congestion along U.S. Highway 19, especially during the tourist period, an access problem exists for patients and their families seeking psychiatric and substance abuse inpatient services (Exhibit 10, page 2). In 1990, Pasco County's population will reach 286,488. This total is broken down into East and West Pasco County, with population projected to be 88,811 and 197,677, respectively. Application of the numerical need methodology to the Pasco population indicates a projected need for 101 psychiatric beds in Pasco County, allocating 70 beds to West Pasco and 31 beds to East Pasco, to insure adequate services are provided to all residents of the County (Exhibit 26, page 3). Recognizing the existence of 46 psychiatric beds at Community in West Pasco, there remains a projected need for 24 psychiatric beds in West Pasco County. With no existing psychiatric beds being located in East Pasco County, between the two areas there is an estimated need for 55 psychiatric beds in the County as a whole, the precise number of short-term psychiatric inpatient beds sought for approval by Pasco (Exhibit 26, page 3). Applying the allocation portion of the rule for freestanding facilities to Pasco County residents, there is indicated a net need for beds in freestanding settings of 58 beds by the year 1990. The grant of 55 beds to the applicant in this case is, therefore, consistent with the provision of the rule (Exhibit 26, pages 3, 4). Rule 10-5.11(25)(d)7 recognizes that an applicant proposing to build a new but separate short-term psychiatric facility should have a minimum of 50 beds. There is no practical manner within which to approve a facility in East Pasco County at the present time, based solely on the East Pasco population, since the numerical need is only 31 (Exhibit 26, page 3). From a health planning standpoint, it is practical to build a facility in the middle of the County, as proposed here. The impact upon existing providers is lessened by its location while at the same time the facility has the ability to obtain patients from all portions of the County. A facility located farther east would not be financially feasible as a result of the low base population (Exhibit 26, page 3). According to Rule 10-5.11(25)(e)7, "short term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90% of the service area's population." Conversely stated, not more than 10% of the Pasco service area population should be outside this time/travel standard. The Pasco proposed project meets the objectives of this criterion and improves geographic access to psychiatric care for Pasco County residents (Exhibit 28, page 3). Unlike a psychiatric unit in a general acute care medical hospital, it is not possible for the psychiatric beds proposed here to be used for acute medical purposes. The concept of a focused, single-purpose facility is also in keeping with the goal of the District Mental Health Board Plan which indicates the need to develop centralized inpatient services in Pasco County. Rule 10-5.11(25) (e)1 (Exhibit 28, page 5). The Local Health Plan notes that it would be cost effective to apply a 75 percent average occupancy threshold for psychiatric and substance abuse services within the service area when considering additional inpatient facilities or services of this type. It also indicates that facts such as patient origin and accessibility should be considered within the need for beds. The plan notes that individuals from Pasco County have had to seek Baker Act services outside of the County and even the District. Thus, access to inpatient care for the indigent psychiatric patient is recognized to be a problem in Pasco County (Exhibit 8; Exhibit 27, pages 11-12; TR-84, lines 16-25; TR-85, lines 16-25; TR-93, lines 23-25; TR-94, line 1). According to the-plan, Baker Act and indigent residents of Pasco County must travel to facilities in District VI to obtain these services. Additionally, with respect to the need for beds, the Local Health Plan indicates that if the subdistrict analysis is accepted, then the need for psychiatric and substance abuse beds is greatest in Pasco County. The plan also notes that while past utilization of the psychiatric unit which exists in West Pasco County would seem to suggest low demand in the County, the low utilization stems in part from the restriction of access to private pay and involuntary patients (Exhibit 27, page 12). According to the plan, services are only being provided to private pay, voluntary patients; consequently, indigent patients are not being served. Baker Act patients who are involuntarily admitted have not been served (Exhibit 27, pages 12-13; TR-374, lines 2-25; TR-376, lines 21-25; TR-377, lines 1- 11). The applicant is proposing to allocate a combined total of at least 10 percent of its patient days to Baker Act and indigent patients, clearly assisting in meeting this need (Exhibit 27, pages 17-18). The Local Health Plan represents local statements and input addressing the needs within the community. The application meets and is consistent with the standards noted in the existing and approved Local Health Plan for District V (Exhibit 10, page 3), a specific requirement of Rule 10-5. 11(25 (e) 1. The applicant initially projected an occupancy rate of 71 percent of the second year and approximately 83 percent of the third year of operation satisfying the criterion contained in Rule 10-5.11.(25)(d), Florida Administrative Code. Subsection (d)(5) recommends that a project would normally not be approved unless the average annual occupancy rate for all existing short- term inpatient psychiatric beds in the district is at or exceeds 75 percent for the preceding 12-month period. DHRS has interpreted this to be the average annual occupancy rate for all facilities for the short-term psychiatric beds within the service district, because the rule refers to the annual occupancy rate for existing beds in the service district, rather than to facilities (Exhibit 27, page 16). During the 12-month period July 1, 1984 through June 30, 1985 the existing short-term psychiatric facilities in District V reported an average of 75 percent occupancy level (Exhibit 27, page 17). Rule 10-5.11(25), Florida Administrative Code, indicates that a favorable determination may be made even when criteria other than those specified in the numeric need methodology, as provided further in Subsection (e) of Chapter 10- 5.11(25), are not met. This would also be true when applying the other criteria utilized in Section 381.494(6)(c) (Exhibit 27, page 13). Considering all these factors and the benefits that the proposed project would bring, there is a projected need for the 55 proposed short-term psychiatric beds shown under Rule 10- 5.11(25) (Exhibit 27, pages 22-23). Substance Abuse Bed Need In District V Rule 10-5.11(27) establishes a bed-to-population ratio of .06 beds per 1,000 population for the projected year in question (Exhibit 26, page 4). The need methodology, as applied to District V for 1990, shows a total need for 69 short-term substance abuse beds in District V. There are presently 74 licensed short-term substance abuse beds in District V and no additional CON approval. This results in a surplus of five beds in the district, without including the 17 beds approved for Pasco Psychiatric Center. (Exhibit 10, page 3, Exhibit 27, pages 23- 24). The Local Health Council has projected a need through 1990 for 17 substance abuse beds, using the State's formula contained in Rule 10-5.11(25) and 10.5.11(27) and applying the formula on a subdistrict basis (Exhibit A, page 118, table 11; Exhibit 10, page 2). Subsection (h)(l) contains a suggested standard of 80 percent occupancy rate in the District for the past 12 months. During the period from July 1, 1984 through June 30, 1985 reporting substance abuse bed facilities reported an average occupancy level of 88 percent. DHRS has determined there exist 22 short-term substance abuse beds at Horizon Hospital. However, Horizon does not report its utilization of those beds separately, but includes them within its reported short-term psychiatric beds (Exhibit 27, page 25). Much in the same manner as the short-term psychiatric rule, Rule 10-5.11(27)(h)3 refers to the Local Health Plan and consistency with local need determinations. According to the plan, there is a projected need in the two Pasco subdistricts for 17 short-term substance abuse beds by application of the numerical methodology .06 beds per 1,000 population to Pasco County. There are no short-term substance abuse beds available or approved in the Pasco County subdistricts (Exhibit 27, pages 11, 25-26). Rule 10-5.11(27)(h)4 establishes a minimum unit size of 10 designated beds. Additional calculation reveals that the numerical need for 17 beds is broken down into 12 beds in the . West Pasco area and five in East Pasco. Because of the minimum size requirement, there is no reasonable way for a unit to be built solely based on the East county portion of the numerical need. Consequently, a proper health planning alternative is to approve the 17-bed unit, which will be centrally located to serve both portions of the County (Exhibit 26, page 4). A Certificate of Need may be approved where need is determined through criteria other than the numeric need methodology. For example, criteria in Section 381.494(6)(c) and in subparagraph (f) of Rule (27) may indicate that need is demonstrated for the project beyond the numerical formula (Exhibit 27, page 23). Upon analysis of all the factors contained within the rule, the applicant meets the need for the Pasco subdistricts. AREAS OF CONSIDERATION IN ADDITION TO BED NEEDS A. Availability, Utilization, Geographic Accessibility And Economic Accessibility The availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing health care services and hospices in the service district of the applicant. Section 381.494 (6) (c) 2 A number of hospital facilities serve District V's residents in need of psychiatric and substance abuse health care services (Exhibit 10, page 16 and 17, tables 9 and 10). Of these, Anclote Manor's patients have an average length of stay of more than two years. Anclote is licensed as a long-term care facility (Ibid., Exhibit 28, page 3) St. Anthony's Hospital, Mease Hospital and Suncoast Hospital have not contested the agency's initial decision to grant this application, leaving only Morton Plant and Horizon in Pinellas County and CHNPR in Pasco County as District V parties objecting to the application. CHNPR's patients are predominantly geriatric (Exhibit 28, page 3). During 1984 the utilization of psychiatric beds at Morton Plant was 137 percent. Hospitals in North Pinellas County show an average 100 percent utilization of their psychiatric beds for the period (Exhibit 35, pages 10 and 11). However, for the same period, utilization of CHNPR's psychiatric unit was 50 percent. Ibid. During the last available 12-month period of information (July 1, 1984 through June 30, 1985), the existing short-term psychiatric facilities in District V reported an average occupancy level of 75 percent (Exhibit 27, pages 16-17). Based upon utilization of less than 75 or 80 percent, there may exist underutilized beds for psychiatric services at Horizon Hospital (TR-798, lines 19-20). However, this conclusion is based upon the assumption that Horizon is licensed for 200 psychiatric beds (TR-798, lines 21-23). DHRS however, considers that Horizon is licensed (License 1809) for 178 psychiatric beds (TR-800, lines 10-15). Consequently, the number of licensed psychiatric beds affects the occupancy rates at Horizon. In order to determine access or demand within a community, factors besides utilization must be looked at (TR-887, lines 13-21). A number of other factors may and in this case do, in fact, affect occupancy rates (TR-887, lines 13-21). In addition to location, the existence of semi-private rooms, sex and age segregation policies adopted by various facilities, and corporate decisions artifically impede access and thus affect utilization and occupancy rates (TR-431, lines 9-13; TR-883, lines 12-24, 25; TR-884, lines 1-10). CHNPR's low occupancy rates are affected by the facility's location, lack of a commitment to indigents medically underserved patients, as well as its lack of segregation of psychiatric beds between adults and children (TR-392, lines 24- 25; TR-393, lines 1-9; TR-397, lines 13-19; TR-398, lines 4- 10).and 13; TR 883, lines 12-24, 25; TR-884, lines 4-10). Pasco residents have been forced to seek inpatient psychiatric and substance abuse services outside the County for years (Exhibit 21, page 1). The location of CHNPR in the western part of the county makes services inaccessible to residents of the eastern part of the county (TR-397, lines 1319; TR-398, lines 4-10). No facility exists in Pasco County that contains the proper housing for adolescents who need psychiatric services (Exhibit 21, page 2). Rainbow House, an adolescent residential care center in Dade City, can accommodate a very limited number of children and is not prepared to handle acutely ill children (TR-399, lines 5- 9). While CHNPR's psychiatric unit is designated for 46 beds, only 26 beds are available for psychiatric services. The dramatic changes in occupancy at Community Hospital of New Port Richey from 80 percent to 40 percent indicate the psychiatric beds are used for acute medical purposes (Exhibit 22, page 2). Without a public transportation system in Pasco County, travel time for Pasco residents and their families is a problem (TR-401, lines 14-25; TR-402, lines 1-23). A major portion of Pasco residents who have been provided inpatient services are provided those services by facilities located one hour away (Exhibit 22, page 2; Exhibit 23, pages 1-2; TR-397, lines 7-16). The access problem is more acute for the elderly, which comprise 32.7 percent of Pasco's population compared to 19.3 percent for all of Florida projected to 1990 (Exhibit 26, page 2). The distance to facilities serving Pasco County residents is sufficiently great as to make follow-up care very difficult, preventing family involvement, and making treatment inefficient (TR-325, lines 7-25; TR-408, lines 1-8; TR-436, lines 12-25). Based upon a July 1985 population of 240,204 approximately 13 percent of Pasco County residents are not within a 45-minute total travel time to a psychiatric facility in District V. This number is expected to increase to 19 percent of the County's population by 1990 (Exhibit 18, page 17, figures 10 and 11; page 14 and figure 13, page 15). United Medical Corporation (UMC), which owns Pasco, has a history of providing services to indigents and medically underserved (Exhibit 13, page 2) and in particular to residents of Pasco County. Ibid. This is based upon UMC's former ownership of Tampa Heights Hospital. At that time it was the facility that admitted Baker Act patients from Pasco County (Exhibit 10, page 3; Exhibit 13, page 2). CHNPR's recent corporate decision to take Baker Act patients is not persuasive as to the issue of access to indigents and medically under served (Exhibit 27, pages 19-20). The timing of the agreement with the Pasco and Hernando Human Development Councils during the pendency of these proceedings indicates, at a minimum, that the application here has already favorably affected access to these citizens. CHNPR's policy with respect to indigents, Medicaid and the medically underserved residents reduces the accessibility of these patients to its facility. See Turro v. DHRS and CHNPR v. DHRS, DOAH Case Nos. 83-005 and 83- 092, Recommended Order September 7, 1983, Final order October 25, 1983, 6 FALR 336, et seq. The proposed project will be accessible to residents in need of psychiatric and substance abuse services in District V. NEED FOR SPECIAL EQUIPMENT The need in the service district of the applicant for special equipment and services which are not reasonably and economically accessible in adjoining areas. Section 381.494 (6) (c) 6. Although an issue in this proceeding, no evidence was presented as to the applicability of this criterion or the applicant's consistency or inability to meet this criterion. It is thus specifically found that this criterion is not applicable. NEED FOR RESEARCH AND EDUCATIONAL FACILITIES The need for research and educational facilities including but not limited to institutional training programs and community training programs for health care practitioners and for doctors of osteopathy and medicine at the student internship and residency training level. Section 381.494(6)(c)7,. Although an issue in this proceeding, no evidence was presented as to the applicability of this criterion or the applicant's consistency or inability to meet this criterion. It is specifically found that this criterion is not applicable. AVAILABILITY OF RESOURCES The ability of the applicant to provide quality of care. Section 381.494(6) (c)3. The availability of resources including health manpower, management personnel and funds for capital and operating expenditures for project accomplishment and operation; the effects the project will have on clinical needs of health professional training programs in the service district; the extent to which the services will be accessible to schools for health professions in the service district for training purposes if such services are available in the limited number of facilities; the availability of alternative uses of such resources for the provision of other health services; and the extent to which the proposed services will be accessible to all residents of the service district. Section 381.494 ( 6) (c) 8. Management and Quality of Care UMC, the parent corporation, has at its disposal management personnel and will be able to obtain health manpower to accomplish the project (Exhibit 12, page 2; Exhibit 13, pages 1-2). UMC presently owns and operates three psychiatric hospitals (Exhibit 11, page 1). The facility will have at its disposal UMC's services in the areas of management and recruitment. UMC has successfully recruited physicians and other health care providers in the past (Exhibit 13, page 1) lines 1-5; TR-332, lines 19-21). The applicant will be able to adequately staff and, manage the facility and provide quality care to its patients in the service area. Funds for Capitol and Operating Expenditure UMC has obtained a commitment from Freedom Savings & Loan Association to finance the project (Exhibit 14, page 2) and will therefore be able to obtain the financing necessary to build and operate the facility. No evidence was presented to show the project will have a detrimental effect on clinical needs of health professional training programs in the district for training. Financial Feasibility The facility will be financed through a construction loan with a 5-year permanent financing package at a rate of prime plus one and one-half percent floating and a two percent fee (Exhibit 14, page 1). The projections contained in Exhibit 7 and Exhibit 5 as well as the underlying assumptions indicate the figures represent reasonable and accurate estimates of income and expenses that will be incurred in the event the Certificate of Need is issued (Exhibit 9, page 1; Exhibit 11, pages 2-3; Exhibit 12, pages 1-2; Exhibit 13, pages 1-2; Exhibit 15, page 2; Exhibit 17, pages 1-2; Exhibit 25, pages 6-9). Note: See also, Hoefle's testimony. CHNPR contends that the projected ALOS should be considered at CHNPR's level. However, the ALOS at CHNPR's psychiatric unit is directly affected by the influx of Baker Act patients and contractual limitations (TR-921, lines 19-25; TR- 922, lines 1-2; TR-452, lines 14-17; TR-453, lines 5-12). In the final analysis the financial feasibility of the proposal will depend to a large degree on whether physicians will admit patients to the facility. Doctors Vesley and Rudajev will support the facility when built and their projections as to the numbers of patients and ALOS are reasonable (TR-292, lines 17-18; TR-293, lines 4-7; TR-293, lines 12-15; TR-295, line 16; TR-317, lines 19-24; TR-324, lines 13-24; TR-325, lines 1-2; TR-336, lines 19-22; TR-332, lines 19-21). It is reasonable that other physicians in Pasco County will locate in the area surrounding the hospital and will support the facility once it is opened (TR- 413, lines 7-17; TR-792, lines 2-9). The needs and circumstances of those entities which provide a substantial portion of their services or resources or both to individuals not residing in the service district in which the entities are located or in adjacent service districts. Such entities may include medical and other health professions, schools, multi-disciplinary clinics and specialty services such as open-heart surgery, radiation therapy and renal transplantation. Section 381.494 (6) (c) 11. No evidence was presented indicating the applicability of this criterion or the applicant's ability or inability to meet this criterion. I find this criterion not applicable. AVAILABILITY OF HEALTH CARE ALTERNATIVES The availability and adequacy of other health care facilities and services and hospices in the service district of the applicant, such as outpatient care and ambulatory or home care services which may serve as alternatives for the health care facilities and services to be provided by the applicant. Section 381.494 (6) (c) 4. At the time of hearing, no alternatives to the application proposed were presented. Nor was other evidence presented to indicate alternatives to the proposed facility and services are, in fact, available at the time of this proceeding. Other than CHNPR no facilities located in Pasco County provides inpatient psychiatric services (TR-400, lines 21 25; TR- 4 01, lines 1-3). Probable economies and improvements in service that may be derived from operation of joint, cooperative or shared health care resources. Section 381.494 (6) (c) 5. The facility will share resources with other facilities owned or operated by UMC such as common training and joint purchasing (Exhibit 11, page 1); financial management (Exhibit 12); financing (Exhibit 14); and recruitment and marketing (Exhibit 13). These shared resources will provide economies and improve services presently available in District V. IMPACT UPON EXISTING FACILITIES AND COSTS AND COMPETITION The probable impact of the proposed project on the cost of providing health services proposed by the applicant upon consideration of factors including but not limited to the effects of competition on the supply of health services being proposed and the improvements or innovations in the financing and delivery of health services which foster competition and service to promote quality assuance and cost effectiveness. Section 381.494 (6) (c) 12. Two hospitals in Pasco County in relatively close proximity to each other are owned by Hospital Corporation of America--Community Hospital of New Port Richey and Bayonet Point Medical Center--giving HCA 86 percent of all hospital beds in the West Pasco service area. The applicant's expert, Dr. Scott, compared statewide HCA hospital averages and daily pre-tax profits based on adjusted patient days with those at CHNPR and Bayonet Point, using 1982 actual hospital data reported to the Hospital Cost Containment Board. The data indicates a much higher than HCA average operating margin, total margin, daily gross revenues and daily pre-tax profits. In Pasco County, HCA shows profitability roughly double that of its statewide averages (Exhibit 25, pages 3-4). HCA has now acquired the nearby freestanding psychiatric hospital at the University of South Florida (Exhibit 25, pages 3-4; TR-854, lines 14-18). Without competition, HCA will not be required to compete in Pasco County for price or quality of care. Approval of the application should significantly reduce HCA's share of the Pasco-Hillsborough market in terms of beds and would positively affect competition and the delivery of health care services (Exhibit 25, page 5; Exhibit 27, pages 29-30). In 1985 CHNPR psychiatric unit's occupancy rate was 41 percent (Exhibit 41, page 4). Following execution of its Baker Act agreements, occupancy rose to 49.7 percent (TR-921, pages 5- 18). CHNPR is a large institution which grossed more than $1 million in pre-tax income based on 50 percent utilization (TR-998, lines 21-25). CHNPR projects that in 1987, 1988 and 1989 only 1 percent of its revenues will be derived from Medicaid patients and .9 percent will be derived from indigents (TR-915, lines 18- 25; TR-916, lines 1-5). Left without competition, HCA will continue to dominate the health care delivery system in Pasco County, a situation which should not be continued. (TR-620, lines 24-25; TR-621; TR- 622). Morton Plant's witness agreed there exists a need for additional psychiatric and substance abuse beds in Pinellas and Pasco Counties in District V (TR-829, lines 15-25; TR-833, lines 3-6). In 1984, approximately 4 percent of Morton Plant's psychiatric patients resided in Pasco County (TR-837, lines 14- 17). Morton Plant's psychiatric unit's occupancy rates have consistently exceeded 100 percent (TR-838, lines 3-6) and there is a waiting list at Morton Plant's adolescent unit (TR-843, lines 2-4). Morton Plant presented no evidence that issuing this CON to Pasco would substantially affect its psychiatric unit (TR- 826, line 25; TR-827, lines 1-25; TR-828, lines 1-9). UPC, now owned by HCA, is located outside District V. UPC, as a university hospital, is different from any other in Florida (TR-860, lines 17-24). It was UPC's mission as a research and teaching facility, and its regional concept of .referrals extending over 17 counties, that led to the grant of its application by DHRS (TR-860, line 25; TR-861, lines 1-21). UPC projected 30 percent of its patients would be referred from outside the area including Pasco County (TR-856, lines 6-11). This limitation was not considered by Dr. Fernandez in concluding that UPC would be adversely affected by the grant of the CON to Pasco. The effect upon UPC is further lessened when one considers the general availability of UPC's facility to the Pasco/District V community. In order to admit patients to the UPC facility, physicians must be members of the UPC faculty (TR- 857, lines 5-11). Eight of UPC's beds will be subject to admissions restricted to only two physicians (TR-857, line 25; TR-858, lines 1-25; TR-859, lines 1-20). Horizon and Hernando are owned by PIA. Horizon receives approximately 5 percent of its patients from Pasco County (TR-787, lines 23-25; TR-788, lines 1- 2). Approval of the Pasco facility may cause Horizon to lose 80 to 90 percent of its total 137 admissions from Pasco--109 to 123 admissions; however, this loss may occur with or without approval of this application (TR-792, lines 17-25; TR-793, lines 1-9). Horizon's expert's testimony regarding utilization was based upon Horizon being licensed for 200 psychiatric beds (TR- 798, lines 1-24); however, DHRS considers Horizon licensed for 178 (TR-798, lines 25; TR-799, lines 1-25; TR-800, lines 1-25; TR-801, lines 1-4). Hernando, located in District III, relied upon a need argument based solely on District III, not District V, in pursuing its CON application (TR-770, lines 18-25; TR-771, line 1). Hernando has previously defined its primary service area as only including Citrus and Hernando Counties, both in District III, and did not include Pasco County within its secondary service area, or for purposes of projecting its admission rates or feasibility (TR-771, lines 14-22; TR-772 lines 10-15; TR-775, lines 20-25; TR-776, lines 1-2; TR-777, lines 5- 16). Community Care has not determined a site for its facility in Citrus County (Exhibit 29, page 6, lines 9-11). Community Care opposes the application because its main concern is the reduction in market share that may be available to its facility (Exhibit 29, page 27, lines 2-6). In its CON application in 1983, Community Care relied only upon District III as its population base (Exhibit 29, page 8, lines 18-21; page 9, lines 19-25). Community Care relief upon the Local Health Plan in District III in establishing need (Exhibit 29, page 10, lines 1- 10) and relied solely upon Citrus and District III population growth as its patient base (Exhibit 29, page 10, lines 10-15). Community Care will not provide short-term substance abuse services (Exhibit 29, page 20, lines 12-18; page 25, lines 11-25). Approval of the Pasco facility will not increase the cost of health services in District V and will favorably affect present services, promoting more efficiency in the health delivery system. The effect of the approval, with its related conditions, will assure access to underserved residents who otherwise will continue at the mercy of the HCA facilities. 110. Approval will not substantially adversely affect providers within or outside District V. CAPITAL EXPENDITURE PROPOSALS The costs and methods of proposed con- struction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction. Section 381.49 (6) (c)13. In cases of capital expenditure proposals for the provision of new health services to inpatients, the department shall also reference each of the following its findings of fact: That less costly, more efficient, or more appropriate alternatives to such inpatient services are not available and the development of such alternatives has been studied and found not practicable. That existing inpatient facilities providing inpatient services similar to those proposed are being used in an appropriate and efficient manner. In the case of new construction, for example, modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable. That patients will experience serious problems in obtaining inpatient care of the type proposed, in the absence of the proposed new service. Section 381.494 ( 6) (d) 1-4. The evidence indicates the costs and methods of the proposed construction are reasonable. The normal percentage of architectural and engineering fees are in the range of 5 percent to 7 percent of construction costs; in this case the architectural and engineering fees are approximately 6 percent. The construction costs of approximately $78 to $80 per square foot are reasonable for this type facility (Exhibit 15, page 2; Exhibit 17, pages 1-2). See also footnotes to paragraphs 86 and 87. Less costly, more efficient or more appropriate alternatives to the services proposed here are not available. No existing facility or applicant has filed an application seeking to provide services similar to those sought to be provided by this applicant for the target population year 1990. Existing inpatient facilities providing services similar to those proposed are being used in an appropriate and efficient manner. Utilization rates at existing district facilities when considered in light of accessibility including artificial barriers, indicate the facilities are being used in an appropriate and efficient manner. As noted earlier, alternatives to the project here at issue are not present. The lack of access, geographical, financial and artificial, to residents of Pasco County in need of psychiatric and substance abuse services, as well as the numerical need evidenced by application of the state-mandated need methodologies indicate that, absent the proposed service, patients will experience serious problems in obtaining psychiatric and substance abuse inpatient care.
The Issue The issues presented were those advanced by an Administrative Complaint brought against the Respondent by the State of Florida, Department of Professional Regulation, in which Respondent is alleged to have violated Section 464.018(1)(j), Florida Statutes, by willfully or repeatedly violating a lawful order of the Board of Nursing previously entered in a disciplinary proceeding. In particular, it is alleged that Respondent violated the terms and conditions of an order of probation entered by the Board of Nursing on November 22, 1983, pertaining to the failure to seek counseling with a psychiatrist, psychologist or other recognized drug alcohol rehabilitation program specialist and to furnish reports to the Board of Nursing. It is further alleged that Respondent failed to submit to a random urine test which was designed to determine if he had consumed, injected or otherwise self-medicated himself with any unprescribed controlled substance.
Findings Of Fact Disciplinary action had been taken against the Respondent by the Board of Nursing stemming from his abuse of the controlled substances percodan and tylenol. The license number in question was license No. 34401-1. On October 15, 1982, Respondent appeared before the Board of Nursing to seek reinstatement of this license. At that time, the Board decided to reinstate the license conditioned upon the service of a probationary term, including special conditions of probation. Among the special conditions of probation was a requirement that "the licensee shall obtain/continue counseling with a psychiatrist, psychologist, or other recognized drug/alcohol rehabilitation program, and shall cause progress reports to be furnished to the Board or probation supervisor every three (3) months during treatment as scheduled by the probation supervisor." The nature of the dialogue at the October 15, 1982, meeting was such that the Respondent was misled into believing that the above- referenced condition of probation would not be required. The Final Order related to the Respondent's reinstatement was issued on November 22, 1982, and it set forth the probation condition related to counseling. It also included a condition to the effect that the Respondent agreed to submit to random blood and/or urine tests to detect the presence of unprescribed controlled substances. Respondent had not been receiving counseling for a drug problem at the time of the October 15, 1982, meeting to consider his reinstatement or at the point in time of receipt of the Final Order relating to the subject of his reinstatement and service of a two-year probationary term. Having reviewed the terms related to attendance of such a program or continuation of the program and the necessity for reports as found in the November 22, 1982 Order, and believing that the remarks made in the course of the October 15, 1982 meeting to consider reinstatement had excluded the necessity to attend such sessions if he was not already in attendance in a rehabilitation program, he contacted Geraldine Johnson, an investigator with the Department of Professional Regulation, to inquire about what he perceived to be a discrepancy between the decision at the meeting in October and the Order entered in November. Ms. Johnson referred Respondent to Helen Keefe, Executive Director of the Board of Nursing, who told King that the Order's terms could not be changed. Additionally, she indicated that a Probation officer would get in contact with King about compliance with the terms and conditions of the Probation Order. John Coats was assigned as the Probation Officer for the Respondent. He first met with the Respondent as Probation Officer on March 10, 1983. At that time, King continued to express concern that the Probation Order and the decision of the Board at the October meeting were "at odds" as to the requirement of counseling. Coats indicated that he felt that the terms of the Probation Order related to counseling were required of King. He nonetheless indicated to King that he would "check into it." On the same date that the initial contact was made, King was requested to give a urine specimen to allow detection of any controlled substance that might be present. This request was made at King's place of employment and in response to King's concern that he not be required to give the sample at the place of employment in order to avoid embarrassment, King was not required to give a random sample at that time. At that point, Respondent was employed at an institution known as Pine Castle which assists mentally retarded adults. At the time of hearing, King was a vocational coordinator for Pine Castle's clients. A further meeting was held between Coats and the Respondent on March 30, 1983, at which time Coats indicated that it was necessary for counseling reports to be provided by the Respondent. King continued to insist that he did not need to attend counseling due to remarks at the Board meeting by Board member, Choulat. Choulat later told Coats that she had not made remarks to that effect. On April 6, 1983, King wrote to the Board of Nursing to ascertain if he indeed had to attend counseling and file reports. This inquiry was responded to by Ms. Keefe on May 3, 1983. In her letter of response, she made reference to the conditions in the Probation Order related to the obtaining or continuing counseling and the necessity for reports and alluded to the fact that in her mind, the first report was due on March 1, 1983, and a second report would be due on June 1, 1983. Further, she indicated that those reports would continue to be due until Respondent was discharged from counseling or a report was received from a counselor indicating that King would no longer need therapy. On May 11, 1983, based upon investigation by Coats, it was determined to pursue charges against Respondent for failing to offer the March 1, 1983, report related to counseling. A report was made by a Dr. Mullen of the Mental Health Clinic of Jacksonville, Inc., on June 22, 1983. This report was addressed to Ms. Keefe. Ms. Keefe was undecided whether this report indicated that the Respondent was released or should be released from any necessity to attend counseling. She did not pursue this matter by presenting it to the Board for their opinion, in view of the fact that the charges of May 11, 1983, had been instituted. From the point of view of Ms. Keefe as spokesperson for the Board of Nursing, it was not necessary to answer this question nor for Respondent to have to continue to offer quarterly reports beyond March 1, 1983, pending the outcome of charges related to the failure to file a report of March 1, 1983. During the course of the exchanges related to the necessity to receive counseling and provide counseling reports on a quarterly basis, Coats continued to seek random urine samples from the Respondent to detect the presence of controlled substances. One of those samples was obtained on April 28, 1983, following contact with the Respondent, allowing him a couple of hours before making the appearance to give that sample. The results of that sample were negative. A similar contact was made with the Respondent on June 29, 1983. The Respondent was telephoned by Coats around two or three o'clock in the afternoon and an arrangement made for Respondent to come by Coats' office around 5:00 p.m. to offer the urine sample. King made his appearance but did not give the sample, indicating that he was unable to void. He requested to be allowed to return the following morning to offer the urine specimen. This arrangement was not pursued by Coats. No further explanation was given to Coats about the inability of Respondent to provide the urine sample and at hearing, Respondent repeated his statement that he was simply unable to perform that task on June 29, 1983. This failure to provide a sample led to a second set of charges dating from July 28, 1983. This charge and the March 1, 1983, failure to file a counseling report formed the basis of the Administrative Complaint of September 6, 1983, filed by the State of Florida, Department of Professional Regulation against Respondent. Respondent requested a formal Section 120.57(1), Florida Statutes, hearing which was held on January 25, 1984.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which finds the Respondent guilty of violating the Probation Order of the Board of Nursing by failing to submit to a urine test on June 29, 1983, and dismisses the charge of failure to submit a quarterly counseling report for March 1, 1983. By way of penalty, the Final Order should impose a suspension of six months, with the last four months of that terms being set aside if, within the initial two months, Respondent seeks a psychological evaluation from a qualified psychiatrist, psychologist or other qualified mental health care counselor who, by report to the Board, addresses the Respondent's capability of continuing in the nursing profession without posing a threat to the safety of patients based upon abuse of drugs or related matters and the need to continue counseling and conditioned upon Respondent's submitting to random blood or urine samples to detect unprescribed controlled substances during the six months suspension period. The final order should also state that Respondent's failure to provide the counseling report and continue needed counseling or to submit to detection of unprescribed controlled substances through blood or urine sample shall promote the imposition of the remaining four months of the suspension term. DONE AND ENTERED this 20th day of March 1984 in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jeffery B. Morris, Esquire 437 East Monroe Street Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Did Respondent, Tonya Shrader, R.N. (Ms. Shrader), violate section 464.018(1)(j), Florida Statutes (2015),1/ 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? If Ms. Shrader violated section 464.018(1)(j), what penalty should be imposed?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department of Health, Board of Nursing, with the licensing and regulation of nurses. At all times material to the allegations in the Administrative Complaint, Ms. Shrader was a licensed registered nurse in the State of Florida. She holds license RN 9180605. Ms. Shrader has a complicated history of psychiatric and medical problems that affect her ability to practice nursing with the level of skill and safety to patients required in the State of Florida. Ms. Shrader has suffered from depression since childhood. Ms. Shrader treated her depression with a variety of medications, including: Lithium, Depakote, Pamelor, Elavil, Topamax, Lamictal, and Prozac. In the past five years, Ms. Shrader has not received treatment for her depression. Ms. Shrader also suffers from anxiety. Ms. Shrader is not receiving treatment for her anxiety. In addition to depression and anxiety, Ms. Shrader suffers from chronic severe migraines. The cause has not been determined despite extensive neurological evaluations. Ms. Shrader has been prescribed Tramadol, Fiorcet, and Clonazepam to treat her migraines. At all times material to the Department's complaint, Ms. Shrader was prescribed Fiorcet for her migraine symptoms. Between March 24, 2012, and July 22, 2013, Ms. Shrader complained of multiple neurological symptoms, including double vision, balance and gait instability, and tingling and numbness in her hands. Ms. Shrader elected to undergo extensive neurological testing to rule out demyelinating disease, multiple sclerosis, and palsy. The tests provided no indication that Ms. Shrader's symptoms resulted from a neurological disorder. At all times material to this proceeding, Ms. Shrader worked as a registered nurse in the Neurological and Psychiatric Unit at Gulf Coast Medical Center (Gulf Coast). On December 20, 2013, Ms. Shrader took an excessive dose of four Fiorcet pills. She told her family that she "plans to keep overdosing until she dies," and that she "predicts that [she] will be dead by the end of the year." Ms. Shrader's family contacted the Emergency Medical Services. Ms. Shrader was transported to Lehigh Regional Medical Center, where she was treated for an overdose. Ms. Shrader was involuntarily admitted to SalusCare, Inc. (SalusCare), for inpatient psychiatric observation and treatment. On December 20, 2013, the Crisis Stabilization Unit (CSU) at SalusCare conducted an in-patient psychiatric evaluation of Ms. Shrader. During the evaluation, Ms. Shrader denied past psychiatric treatments or psychiatric medication. Ms. Shrader also denied that her Fiorcet overdose was an attempted suicide. Her statements during her SalusCare evaluation contradict her medical charting and statements she has made, which indicate that she has an extensive history of psychiatric illnesses. SalusCare discharged Ms. Shrader on December 23, 2013. The director of nursing at Gulf Coast contacted the Intervention Project for Nurses (IPN) about Ms. Shrader. IPN is an impaired practitioner consultant to the Department's Board of Nursing. IPN works with nurses and monitors them for safety to practice issues. IPN contacted Ms. Shrader on January 2, 2014, to discuss her entering the program. Ms. Shrader denied that she was impaired or abused any substances. She admitted that she was depressed. But she said that she stopped her depression treatment approximately five years earlier. IPN asked Ms. Shrader to undergo an evaluation to determine her fitness to practice nursing. Ms. Shrader scheduled an evaluation with Theodore Treese, M.D., an expert in the psychiatric treatment, monitoring, and care of health care practitioners. He conducted the evaluation on January 28, 2014. Dr. Treese diagnosed Ms. Shrader with severe major depressive disorder; alcohol abuse; opioid abuse; sedative, anxiolytic abuse; relational problems, not otherwise specified; and rule-out polysubstance abuse. During the evaluation, Ms. Shrader attempted to hide her in-patient psychiatric treatment at SalusCare. Based on Ms. Shrader's diagnoses, Dr. Treese determined that Ms. Shrader was not capable of practicing as a registered nurse with reasonable skill and safety to patients. Dr. Treese recommended that Ms. Shrader seek treatment at a substance abuse treatment center at a level of at least partial hospitalization. Ms. Shrader did not agree with Dr. Treese's recommendation. IPN gave Ms. Shrader the opportunity to seek a second opinion from another IPN-approved evaluator. IPN informed Ms. Shrader that she needed to either obtain a second opinion or enter the recommended treatment before April 14, 2014; otherwise, IPN would close her intake case file. Ms. Shrader refused to obtain a second opinion or enter into the recommended treatment. IPN closed Ms. Shrader's file on April 14, 2014. On December 2, 2014, Mark Sylvester, M.D., a physician specializing in psychiatry and addiction medicine, evaluated Ms. Shrader pursuant to Department Order. Dr. Sylvester reviewed Ms. Shrader's medical records, the IPN intake case file, and the Department's investigative report. Dr. Sylvester also asked Ms. Shrader to undergo a urine and hair drug screen. Ms. Shrader did not participate in the screens. Dr. Sylvester diagnosed Ms. Shrader with recurrent major depressive disorder, opioid abuse, alcohol abuse, benzodiazepine abuse, nicotine dependence, factitious disorder versus malingering, rule-out hypochondriasis, and rule-out conversion disorder. During the evaluation, Ms. Shrader attempted to conceal her psychiatric history, substance abuse, and symptoms of depression. Ms. Shrader's unwillingness to be forthcoming during her evaluation demonstrated denial of her symptoms and presented a significant barrier to her treatment and recovery. Dr. Sylvester concluded that Ms. Shrader's poor judgment and decision-making detrimentally affected her ability to practice nursing. Specifically, Ms. Shrader's judgment in attempting to practice nursing while impaired, her lack of insight into her illnesses, her inability to follow treatment recommendations, and her disagreement with medical professionals showed poor judgment. Poor judgment can affect decision-making while practicing nursing, especially in a crisis situation. Dr. Sylvester concluded that Ms. Shrader was unable to practice nursing with reasonable skill and safety by reason of her depression, use of alcohol, opioids, and benzodiazepines, lack of insight into her symptoms, and poor judgment. In order for Ms. Shrader to be able to practice nursing with reasonable skill and safety to patients, she must: undergo treatment at a residential treatment center; enter into an IPN monitoring agreement; and submit to a hair analysis drug screening test. These steps are essential to Ms. Shrader's recovery and to regaining the ability to practice nursing with reasonable skill and safety to patients. There is no evidence that Ms. Shrader has taken any of these steps. Ms. Shrader is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Nursing, enter a final order: finding that Respondent, Tonya L. Shrader, R.N., violated section 464.018(1)(j); requiring her to undergo an IPN evaluation; imposing a suspension of her license until such time as she undergoes an IPN evaluation; requiring compliance with IPN recommendations, if any; requiring the payment of an administrative fine in the amount of $250.00; and awarding costs for the investigation and prosecution of this case, as provided in section 456.072(4) to the Department. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of July, 2015.
