Findings Of Fact Pamela Kay Johnson is a licensed practical nurse licensed by the Florida State Board of Nursing. The records of Sanford Nursing and Convalescent Center showed that Pamela Kay Johnson either administered Atarax to Herbert Speir without a doctor's order or administered the Atarax to another patient and erroneously charted its administration on Speir's medication chart while she was on duty at the center on November 6, 1977. On the morning of November 8, 1977, after having worked the evening shift and then gone partying with her husband, Pamela Kay Johnson exhibited faintness and physical distress at the staff meeting at the convalescent center. She was examined by the director of nursing at the center, who sent her home and subsequently terminated her when it was discovered that she had mismedicated Speir. Mr. Lewis Johnson stated that his wife had been treated for convulsive seizures and had been prescribed Phenobarbital and Dilantin by her treating physician, Dr. Merritt. Mr. Johnson stated that his wife had been on this medication since July, 1977, and subsequent to her initial adjustment to the medication had suffered no ill effects from it. When Mr. Johnson arrived home on November 8, Mrs., Johnson was in bed and asleep. He spoke that day with the director at nursing who advised him that she felt Mrs. Johnson needed to see a physician because of her condition. Mr. Johnson took his wife the following day to Watson Clinic in Ocala, Florida, where she was seen by her treating physician, Dr. Merritt. Dr. Merritt conducted tests on Mrs. Johnson and subsequently advised Mr. and Mrs. Johnson that the level of Phenobarbital and Dilantin in her system was consistent with the dosage he had prescribed. After testing, Dr. Merritt reduced the dosage of Phenobarbital. Dr. Merritt could offer no explanation of Mrs. Johnson's reaction to Phenobarbital. Mrs. Johnson is currently employed with Homemakers Upjohn as a licensed practical nurse. She has not had any other drug reaction since the reduction of the medication.
Recommendation The facts presented in this case indicate that the Board should not take any disciplinary action, but that the Board should take action to insure that the public interest is protected. Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Nursing suspend the license of Mrs. Pamela Kay Johnson as a licensed practical nurse until July, 1978, the date Dr. Merritt indicated that she could cease taking the medications and not be subject to further seizures. In addition, the Hearing Officer would recommend that Board suspend the recommended suspension upon being satisfied that Mrs. Johnson's health does not constitute an undue risk to the public. DONE and ORDERED this 4th day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Pamela Kay Johnson 1670 Morrell Drive Lakeland, Florida 33801 Geraldine B. Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg B. Jacksonville, Florida 32211 =================================================================
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Nursing suspend the license of the Respondent, Inez Strickland, for a period of 30 days and place her on probation for a period of six (6) months. DONE and ORDERED this 5th day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Ms. Inez Strickland 4427 Barnes Road Jacksonville, Florida 32207 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004(27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS-sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staffperson Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004(27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision- making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parenti in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida , Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added] Rule 10E-16.004(27)(a), Florida Administrative Code, provides: (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department. (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or to prevent serious disruption of the therapeutic environment. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint. DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1996. COPIES FURNISHED: Paul D. Newnum, Esquire TURNBULL, ABNER, DANIELS and ROOKS 147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Sandy Coulter, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
Findings Of Fact Hilda T. Clark, Respondent, is a registered nurse who holds license no. 21750-2. Evidence adduced during the course of the hearing reveals that during 1961, while Respondent was employed as a private duty nurse at Mount Sinai Hospital in Miami, she withdrew a narcotic drug, to wit: Dilaudid, for her patient, Mrs. Fanny Goldblum on approximately thirty occasions, which she administered to herself instead of the patient. Based on an Information for violation of the Florida Uniform Narcotic Drug Act (Chapter 398.19, F.S.) which was filed on March 15, 1961, the Respondent pled guilty and was placed on probation for a term of seven years on March 31, 1961. Thereafter, on January 12, 1977, the Respondent, while employed as a private duty registered nurse at the University of Miami Hospital and Clinic, converted to her own use a narcotic drug, to wit: Demerol. When confronted with this fact, the Respondent admitted to the Head Nurse, M. Francis, R.N., that she had injected herself with the Demerol and that she was addicted to narcotics for many years. The Respondent does not contest the above allegations and in fact admits that she engaged in the conduct that is alleged in the administrative complaint filed herein. However, she urges that the suspension of her license is unwarranted in these circumstances inasmuch as she was undergoing tremendous pressure based on her mother and spouse's poor health. Additionally, she related an incident wherein she was undergoing tremendous pain and was placed on the medication, Demerol for the relief of pain due to severe herpes zoster infection. Evidence and testimony introduced during the course of the hearing reveal that herpes zoster infection causes severe pain and that to control such pain, her physician, Edward E. Goldman, M.D., prescribed oral Tolwen, Demerol and Dilaudid suppositories. There also was evidence introduced during the course of the hearing which indicated that the Respondent is not now suffering from any drug related problems or addiction and that her professional abilities are beyond question. Respecting the most recent incident which occurred on January 12, 1977, evidence reveals that the Respondent was indeed laboring under a great deal of stress and mental pressures which, in her words, forced her to resort to the unlawful withdrawal and injection of the narcotic drug, Demerol. There was no evidence introduced that the Respondent engaged in any unlawful act during the period between the incident which occurred in 1961 and the January, 1977 incident. Nor was there any further evidence of any drug addiction problem by Respondent subsequent to the January, 1977 incident. The unlawful use of and procurement of drugs by nursing professionals is a serious act which should not be condoned without sanction by the Board of Nursing. It goes without saying that such acts and/or conduct constitutes a departure from the minimal standards of acceptable and prevailing nursing practice and in fact constitutes unprofessional conduct. See Chapter 464.21(b), Florida Statutes. Based on evidence received during the course of the hearing, there is substantial and competent evidence from which a finding can be made that the Respondent engaged in conduct violative of the above chapter i.e., Subsection 464.21(b), Florida Statutes. However, there was no evidence introduced on which a finding can be made that the Respondent is guilty of conduct violative of Chapter 464.21(c) and (d), as alleged. Although two instances of unlawful useage of narcotic drugs was alleged which the Respondent admits, in view of the length of time between the two occurrences, the undersigned concludes that the record fails to establish that the Respondent is habitually addicted to the use of controlled substances as provided in Chapter 464.21(c), Florida Statutes. I shall therefore recommend that the remaining two allegations be dismissed. Respecting the finding that the Respondent engaged in unprofessional conduct within the meaning of Chapter 464.21(b), Florida Statutes, I shall bear in mind and give consideration to the lengthy and creditable service that she has given to the nursing profession, a profession in which she desires to continue to practice. Based thereon and the favorable testimonials received into evidence, I shall recommend that the Respondent be placed on probation for a period of two years.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Respondent be placed on probation for a term of two years. In all other respects, I hereby recommend that the complaint allegations be dismissed. RECOMMENDED this 12th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 George A. Kokus, Esquire Cohen and Kokus 500 Roberts Building 28 West Flagler Street Miami, Florida 33130 =================================================================
Findings Of Fact Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
The Issue The issue for consideration in this case is whether Petitioner should be granted an exemption from the current disqualification to work with health care agencies resulting from the misconduct cited in the Agency's letter of denial dated January 27, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Agency for Health Care Administration, was the state agency responsible for regulating the certification of nursing assistants and the regulation of the nursing assistant profession in this state. A part of that responsibility is the maintenance of control over those individuals who are qualified by reason of training and character to work with health care agencies in this state. Ms. Ricks has, as one of her responsibilities, the conduct of background investigations of those individuals who seek certification to work with the indicated category of individuals, but whose background contains information of a disqualifying nature. The purpose of this activity is to ensure that individuals in nursing homes, or in other situations where they are served by certified nursing assistants, receive quality care. At the time of employment by nursing homes and other facilities or organizations who utilize nursing assistants, individuals are screened and if determined to be disqualified for some reason, may ask for an exemption from disqualification. When that request is made, Ms. Ricks is asked to conduct an investigation into the individual's background. In the instant case, Petitioner requested an exemption from disqualification. When, after reviewing the file, Ms. Ricks determined it was impossible for her to grant the exemption based on a desk review, she did an informal investigation into his background. In doing so, she determined that Petitioner had been involved in numerous drug-related offenses over a twenty year span from 1975 to 1995. Included in this list of offenses were the following: Jul. 1975 sale & possession of marijuana Aug. 1982 sale & possession of marijuana c. Oct. 1984 possession of marijuana d. Jan. 1985 possession of marijuana e. Jun. 1988 sale & possession of cocaine f. Jan. 1995 possession of marijuana. Prior to preparing her report on the Petitioner's background, Ms. Ricks gave him an opportunity to be heard. He presented to her a copy of the screening report of the Florida Department of Law Enforcement which contained the above-cited criminal record, as well as testimonials from several individuals for whom he has worked in the recent past. Nonetheless, based on the information available for her to consider, Ms. Ricks, as well as her review group, arrived at the consensus that Petitioner had a long history of drug offenses and had admitted to drug abuse. It was also determined that after his arrest in 1995, Petitioner sought rehabilitation and voluntarily entered a half-way house. Notwithstanding those self-efforts, the Agency officials concluded that Petitioner's rehabilitative efforts had not been sufficiently long-standing to demonstrate full rehabilitation. The officials were of the opinion that the nature of Petitioner's offenses and the length of time he was involved in drug abuse, when compared with the relatively short time of his abstinence, showed there had been insufficient time for meaningful rehabilitation. Mr. Larason does not deny his prior record of drug and alcohol abuse. However, he claims he has made a significant change in his life. His record of offenses, he contends, includes no major felonies except for his involvement with the possession and sale of cocaine in 1988, and even since that offense, he has had only one minor marijuana involvement. Petitioner contends he has voluntarily kept himself in a half-way house, primarily because he felt it was good for him, and he didn't want to leave until he felt he was ready. He claims to regularly attend meeting of Alcoholics Anonymous and that he has remained drug free and sober. He has not touched alcohol for almost two years. He believes he has made a major turn-around in his life and now has no use for alcohol. Alcohol was, he believes, the cause of his downfall. He now believes he is stable and wants the exemption so he can get a full-time job in a hospital. Mr. Larason, for the past several years until the Agency's action, has worked in several mental health hospitals in Pinellas County. He asserts that all have indicated they want him back and have offered him employment. He wants to work and contends he will fight all the way for the opportunity to do so in his chosen field because he is of the opinion that work in this chosen profession, health care, will aid him in his own recovery. Since the Agency declined to grant him an exemption from disqualification, he has not been able to work in the health care field but had been gainfully employed by two realtors doing construction work. Both indicate he is an asset to the community and, in their judgment, will remain so. Consistent with those letters is a reference from the nursing agency for which he formerly worked in which his former supervisor opined Petitioner has learned from his past mistakes. Another health care employer indicates that aside from an occasional work lapse due to alcohol, he was a satisfactory employee.
Recommendation Based on 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 request for exemption, without prejudice, at this time. DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Scott Larason 633 Third Street North Apartment Two ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997. St. Petersburg, Florida 33701 Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox, Building 3 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether or not on or about May 24, 1978, the Respondent was arrested by officers of the Jacksonville Sheriff's Office, in Jacksonville, Duval County, Florida, and found to be in illegal possession of the controlled substance, to- wit, Pentothal (Sodium Thiopental), injectable, and, therefore, in violation of Subsections 464.21(1)(b) and (d), Florida Statutes. Whether or not on or about May 24, 1978, the Respondent was found to be in possession of several prescription drugs without having obtained a prescription for those drugs, in violation of Subsection 464.21(1)(b), Florida Statutes.
Recommendation It is recommended that the license of the Respondent, Gloria Nesmith Moore Callender, R.N., No. 48527-2, be REVOKED. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Geraldine B. Johnson, R.N. 1005 Blackstone Building Department of Professional and Jacksonville, Florida 32202 Occupational Regulation Board of Nursing Ms. Gloria N. M. Callender 6501 Arlington Expressway, 8030 Almar Place Bldg. "B" Jacksonville, Florida 32208 Jacksonville, Florida 32211
The Issue The issue in this case is whether Respondent violated Section 464.018(1)(h), Florida Statutes (1997) (hereinafter, "Florida Statues"), and Florida Administrative Code Rules 59S- 8.005(1)(e)1 and 2, by diverting morphine during his care and treatment of two patients and failing to keep accurate nurse's notes. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing. Respondent is licensed as a nurse pursuant to license number RN 2185632. Respondent admitted under oath at the hearing that he committed the acts alleged in the Administrative Complaint. Respondent did not overdose any patient, endanger, or neglect any patient. Respondent diverted morphine during his care and treatment of patients J.G. and R.B. at West Volusia Memorial Hospital on March 24 and 26, 1997. Respondent was addicted to morphine and diverted morphine from the two patients for self- administration. Respondent is guilty of negligent administration of morphine. Respondent self-administrated morphine that was not medically necessary. Respondent failed to keep accurate nurse's notes for patient J.G. Respondent inaccurately recorded the amount of morphine administered to patients J.G. and R.B. Respondent has voluntarily sought aggressive care and treatment for his drug addiction. Respondent is in three rehabilitation programs in Georgia. Respondent is in an intervention program for nurses ("IPN") approved by the State of Georgia pursuant to a prosecution conducted by the appropriate state agency in Georgia. He is also in a nurses anonymous program and a follow-up hospital program. Respondent is also under the regular care of a psychiatrist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 464.018(1)(h) and Rules 59S-8.005(1)(e)1 and 2, suspending Respondent's license for two years from the date of this Recommended Order, and placing Respondent on probation for two years from the end of the suspension period. The terms of probation shall include a requirement that Respondent successfully complete the IPN program in Georgia and hospital follow-up program. DONE AND ENTERED this 18th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 18th day of June, 1998. COPIES FURNISHED: Marilyn Bloss, Executive Director Department of Health Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32308-4229 Joseph Webb, pro se 2169 Turner Church Road McDonough, Georgia 30252
