The Issue The question presented in this case, is whether or not the Respondent has violated the conditions of Section 465.101(1)(e) Florida Statutes, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes, in particular controlled by Section 893.07, Florida Statutes. This violation is alleged to have occurred at Washington Park Pharmacy, Inc., 750 Northwest 22 Road, Ft. Lauderdale, Florida. The alleged violation was noted by V. K. Bell, agent, Florida Board of Pharmacy, based upon a drug accountability audit which covered the period from September 1, 1976 to October 3, 1977.
Findings Of Fact This cause comes on for consideration based upon the complaint and notice to show cause brought by the Petitioner, Florida Board of Pharmacy, in an action against James R. Gibbons, who is licensed to practice pharmacy by the Petitioner. The action charges that James R. Gibbons, while licensed to practice pharmacy in the State of Florida, violated the provisions of Section 465.101(1)(e), Florida Statutes. This claim of violation is premised upon the alleged failure of the Respondent, James R. Gibbons, to comply with the conditions of Section 893.07, Florida Statutes, in that the Respondent permitted the improper keeping of records, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes. This failure of control was alleged to have occurred at the Washington Park Pharmacy, Inc., at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The prosecution is grounded on the investigation performed by V. K. Bell, agent, of the Petitioner and specifically arises from a drug accountability audit which covered the period from September 1, 1976 till October 3, 1977. As a part of his duties, agent V. K. Bell, an employee with the Florida Board of Pharmacy, conducted an audit of the Washington Park Pharmacy, Inc., located at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The period of the audit covered September 1, 1976 through October 3, 1977. An element of the audit concerned the class II drugs, Dilaudid, 4mg. tablets and Quaalude, 300mg. tablets. A synopsis or summary of the audit process pertaining to the two drugs by weight, may be found as Petitioner's Exhibit #1, admitted into evidence. In that audit report, agent Bell has broken down the amounts of the questioned drugs into categories. These categories begin with a zero initial inventory on September 1, 1976 and report the total number of tablets purchased; the amount of ending inventory; the amount of sales by prescription, both legitimate and possible forgeries; the amount of loses by theft; and the amount short, for which there is allegedly no explanation. By the figures reported by agent Bell; 59,100 Dilaudid 4mg. tablets were purchased in the audit period; 200 tablets remained as ending inventory; 49,869 tablets were reported as sales or loss by theft; and 9,031 tablets were reported short. Looking at the report rendered by agent Bell on the substance Quaalude, 300 mg. tablets, it shows a total purchase within the inventory period of 32,200; an ending inventory of 50; sales of 25,421 by prescription; and 6,729 tablets short. The Respondent has taken issue with the statistical data offered by the Petitioner. In its argument against the case of the Petitioner, the Respondent has offered Respondent's Exhibits 5 & 6, admitted into evidence. These exhibits are respectively a compilation of the sales made to the Respondent by the Gulf Drug Company and Crandon Drugs, Inc. The tapes which are attached to those exhibits act as a take-off in adding the amounts of the two questioned substances, and show that 54,200 Dilaudid 4mg. tablets were purchased during the audit period and 29,700 Quaalude 300mg. tablets were purchased during the audit period, according to the computations of the Respondent, James R. Gibbons. Gibbons also takes issue with the allegation found in the audit summary, to the effect that certain prescriptions were forged by the doctors listed. The depositions of Drs. Collier, Cohen, Morris, and Walker were taken prior to the hearing. Those depositions have been admitted into the record in lieu of testimony at the hearing. The deposition of David Collier, D.O., shows that during the audit period, he wasn't treating the patients who needed the two drugs Dilaudid and Quaalude. He did indicate that at one time he had left prescription pads in the treatment rooms where someone may have picked those prescription pads up. However, he denies signing any prescriptions which were shown to him and alleged to have been under his signature. He thereby states that those prescriptions are forgeries. He also denied that any prescription forms with the name Washington Park Pharmacy had been provided to him. Dr. Collier's partner for a time, was Bernard Cohen, D.O. Dr. Cohen states that he wrote prescriptions for Quaalude and Dilaudid in November, 1975, but not on pads from Washington Park Pharmacy. He also admitted that employees within his office other than he and Dr. Collier had access to the prescription pads. He recalls that during the audit period one patient was on Dilaudid and one patient was receiving Quaalude. The writing exemplars that were shown to him which are prescriptions allegedly written by him were felt to be forgeries, with the exception of his patients which he identified as his. From his recollection the Washington Park Pharmacy never called about any alleged forgeries that may have been received bearing his name. The deposition of William A. Morris, III, M.D. establishes that he has prescribed Dilaudid and Quaalude, but not in the amounts attributed to him in the audit. He also stated that in February, 1976, there was a "break-in" and certain prescription pads were missing. The signature on the exemplars shown to him were felt to be similar to his signature; however, he did not recognize any of the names to be his patients and therefore felt that the substance of the prescription was a forgery. The deposition of Dr. Thomas J. Walker, M.D., establishes that he was not prescribing the drugs Dilaudid and Quaalude at the time of the audit. After looking at the exemplars of the prescriptions presented him he stated that those prescriptions had not been written by him. In his estimation, the prescription pads in his office were secure during the audit period and no "break-ins" or thefts had occurred. The explanation which the Respondent gave on the question of any possible forgeries was to the effect that he has a duty to fill the prescriptions which are tendered to him by a treating physician, and further that his practice is to notify the alleged treating physician when there is some question about the authenticity of the prescription given to him by a customer. The Respondent's explanation for any shortage of prescriptions during the audit period was to the effect that either the agent for the petitioner or the representatives of the United States Drug Enforcement Authority had lost some of the records in transporting his books and records to their office for examination; or in the alternative those records still regained in his pharmacy and were undiscovered by the Petitioner's representative and representatives of the Drug Enforcement Authority. The positions of the parties should be examined in view of the requirements of the law under which the charge is brought. Section 465.101(1)(e), Florida Statutes, reads as follows: 465.101 Authority to revoke or suspend licenses.- (1) The Board of Pharmacy may revoke or sus- pend the license and registration certificate of any registered pharmacist, after giving such pharmacist reasonable notice and an opportunity to be heard, who shall have: * * * (e) Violated any of the requirements of this chapter, of chapter 500, known as the "Florida Food, Drug, and Cosmetic Law," of ss. 301 through 392 of Title 21, United States Code, known as the "Federal Food, Drug and Cosmetic Act," or of chapter 893. By this charging document, the Petitioner is claiming that the Respondents have violated Section 893.07, Florida Statutes. A portion of that section is Section 893.07(3), Florida Statutes, which calls for the record of all controlled substances sold, administered, dispensed, or otherwise disposed of to be kept; to the extent of among other things, showing the kind and quantity of controlled substances sold, administered, or dispensed. Section 893.07(4), Florida Statutes, also states that these records shall be kept and made available for a period of at least two years for inspection and copying by law enforcement officials. Section 893.07(5), Florida Statutes, calls for the maintenance of records of any substances lost, destroyed or stolen, as to the kind and quantity of such controlled substances and the date of discovery of the loss, destruction or theft. In reviewing the facts offered into evidence at the hearing, in the context of the position taken by the Petitioner at that hearing, it appears that the Petitioner is most concerned with the shortages, as opposed to the questioned prescriptions which they feel might be forgeries. Moreover, the facts establish that there was a "break-in" on August 30, 1977, in which the Respondent, James R. Gibbons' inventory showed that 128 Dilaudid 4mg. tablets were stolen or missing, for which the Petitioner gives credit in the audit process. Therefore, the analysis to be given this case will center on the "so- called" shortages of the two substances. The undersigned has reviewed the Exhibits 5 & 6 by the Respondent and finds the computations of the Respondent to be incorrect. An examination of those exhibits shows that 55,400 Dilaudid 4mg. tablets were purchased in the audit period and 30,200 Quaalude 300mg. tablets were purchased in the audit period. Using those figures, and subtracting the amount of tablets dispensed by prescriptions or lost through theft, to include questioned prescriptions, it shows 5,531 Dilaudid 4mg. tablets are short and 4,779 Quaalude 300mg. tablets are short. These shortages are shortages in which no meaningful explanation has been offered. The substances Dilaudid and Quaalude are class II drugs, for which records must be kept in a manner described above, in keeping with Section 893.07, Florida Statutes. The Respondent, James R. Gibbons, has failed to maintain the records in accordance with Section 893.07, Florida Statutes, and has thereby violated Section 465.101(1)(e), Florida Statutes.
Recommendation It is recommended that the license and registration certificate of James R. Gibbons, to be a pharmacist in the State of Florida, be revoked. DONE AND ENTERED this 5th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Pierce, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 W. George Allen, Esquire 116 Southeast Sixth Court Post Office Box 14738 Ft. Lauderdale, Florida 33302
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of November 1993.
Findings Of Fact Respondent, Jay S. Reese, is a physician in family practice in Temple Terrace, Florida. He holds license number ME 0014119 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Reese graduated from the Indiana University of Medicine in 1961. He became licensed in the State of Florida in March 1969 and has practiced in the Tampa area since 1972. He is on the active medical staff of the University Community Hospital in Tampa and enjoys an excellent professional reputation with his peers. He has been considered by some to be an "outstanding physician" in his field. Indeed, one of those physicians who testified against Reese in this proceeding characterized him as being a "very capable physician." Respondent has had a long and sincere interest in drug abuse problems since the late 1960s when he served in the U.S. Navy. Thereafter, he became affiliated with a drug clinic in Winter Haven, Florida, which provided assistance to drug abusers. When he moved to Tampa in 1972 he continued his efforts to fight drug abuse by serving on the Department of Health and Rehabilitative Services Advisory Council for Drug Abuse, and on the board of the Drug Abuse Comprehensive Coordinating Office (DACCO) for Tampa and Hillsborough County. He was also on the steering committee which founded the Hillsborough County Alcohol Community Treatment Services in 1979. He is in frequent contact with various law enforcement authorities and judges in Hillsborough County in association with this work. Because of his involvement with drug and alcohol abuse clinics, Reese has often taken care of patients who have had alcohol or drug addiction or habituation problems. This group of patients is considered to be the most difficult to treat. It is not uncommon for such patients to claim they lost their prescriptions, alter prescriptions, steal blank pads from a physician's office, buy and sell drugs on the streets, or to be seeing more than one physician at the same time. In view of this, few physicians are willing to assume the inherent difficulties associated with a former addict or alcoholic. Nonetheless, Reese has opened his doors to the former drug addicts and alcoholics who are in need of medical treatment because of his concern and interest in this field. In light of his longtime volunteer work in the drug abuse area, it came as a surprise to Reese when petitioner filed a lengthy administrative complaint charging him with prescribing excessive and inappropriate amounts of controlled substances to numerous patients for non-medically justified purposes and not in the course of his professional practice. 1/ This prompted the instant proceeding. As narrowed during the course of the hearing and by subsequent pleadings of petitioner, the charges involve thirteen patients treated by Reese at varying times between 1979 and 1982. Most, if not all, had a history of prior alcohol or drug addiction or habituation problems. Nonetheless, they had legitimate medical problems requiring the attention and care of a competent physician. The quantities and duration of controlled substances given to the thirteen patients are set forth in petitioner's exhibits 2-8 and 10-15 received in evidence. Nine patients received controlled substances (dilaudid, percodan, demerol, mequin and percocet) for the treatment and management of pain, three were given quaalude exclusively, and a fourth received both quaalude and sapor. The latter four patients suffered from legitimate sleeping problems which necessitated the prescriptions in question. In treating these patients, Reese acted prudently and honestly, and used his best medical judgment to select the type and amount of drug prescribed. All were given thorough physical examinations and necessary periodic follow-up checks. Those patients for whom Dr. Reese prescribed painkilling controlled substances had various ailments which inflicted pain on the patient in varying degrees of severity and duration. All medical problems were legitimate in nature, and the testimony did not establish otherwise. Dr. Reese's treatment was in accord with mainstream medical opinion that the utilization of controlled substances in the management of patient pain is appropriate. The prescription of controlled substances for various types of pain will depend on the severity of the pain and the response of the individual, among other factors. Authoritative medical literature declares that pain should be treated and should be treated early. In the absence of an alternative therapy, narcotic drugs should not necessarily be withheld from the patient. Each patient must be individually evaluated and continually evaluated during the doctor-patient relationship. The results of such treatment should be continually monitored. Because pain can be psychologically and physically debilitating, it should be brought under control as quickly as possible. To do so requires a subjective evaluation by the physician of the patient since there is no prescribed or defined procession through which a physician goes in determining the strength of pain medication. Generally, a doctor will prescribe smaller amounts of medication when first treating a patient, and once he gets to know the patient and his condition, a physician will schedule longer intervals between visits and larger quantities of drugs with more frequent refills. This is true since once a situation is under control, there is no reason to have the patient come to the office on a frequent, recurring basis. In treating pain, a drug of greater potency and potential for abuse should not be ignored in favor of a less potent drug, simply by virtue of the former drug's potential for abuse. In this regard, a physician achieves a better pain control with Schedule II medications than with Schedule III medications. The bottom line is the treating physician's medical judgment, that is, his judgment as to how severe the pain might be as he interprets it and what medication can achieve the best results. Pain control is the most difficult area to quantitate by virtue of the manner in which patients react to pain under medication. The prescription of drugs by a competent physician for the management of pain is a legitimate medical objective. The use of quaaludes for sleeping disorders was shown to be medically justified. Although some physicians do not ascribe to its use, it is nonetheless an appropriate drug for certain diagnoses, and was not shown to be inappropriate for patient numbers 5, 7, 13 and 14 as to either quantity or duration. Petitioner presented the testimony of two physicians who were accepted as experts for this proceeding. Their evaluation of the treatment given by Dr. Reese was based only upon a review of the patient records. They did not interview the patients, or meet with Dr. Reese to discuss his prescribing regimen. They had never actually seen or treated the patients. They generally concluded that Reese had not acted as a reasonably prudent physician or in accord with the level of care, skill and treatment which is recognized by a reasonably prudent physician in the Hillsborough County area. In short, they supported the relevant allegations in the administrative complaint. In contrast, experts presented by respondent painted a completely different picture and found no violations of applicable statutes, rules or standards of conduct. Indeed, they praised respondent for his willingness to treat this most difficult type of patient, and his dedication to the medical profession. It is noteworthy that the experts on both sides had minimal experience in treating patients who abuse alcohol and drugs, and in any event far less than the experience of Reese. It is a well-accepted fact in the medical community that as between two equally competent physicians, one of whom treats the patient and one of whom looks at records after the fact, the former physician will have substantially greater knowledge and "feel" of the treatment result than one merely looking at records. Given this fact, and the more persuasive testimony of respondent's experts, it is found that no deviation from the level of care, skill and treatment of the patients in question has occurred. It is further found that the drugs were in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of Reese's medical profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Dr. Jay S. Reese be DISMISSED with prejudice. DONE and ENTERED this 10th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of February 1984.
Findings Of Fact Background Petitioner was founded by Mr. Art Barker in 1970 and has been operated since that time as a private, non-profit entity. Petitioner receives no funds from any unit of government and is a valuable asset in the field of drug abuse treatment and prevention. Petitioner enjoys a good reputation in the community it serves and has demonstrated its ability to help people with substance abuse problems. Approximately 7,000 people have gone through Petitioner's drug abuse program with a success rate in excess of 90 percent. Petitioner was an innovator in the development of the type of drug abuse programs administered by it. The drug abuse program administered by Petitioner has been emulated by approximately 12 other programs in the state. There are not enough programs of this type to satisfy the needs of individuals in the state. Respondent first began licensing drug abuse programs in February, 1972. Petitioner has been continuously licensed by Respondent as a drug abuse program. Petitioner is authorized under License Number 10A-38 to provide "day care with host component." The licensed address for Petitioner is 919 East Broward Boulevard, Fort Lauderdale, Florida, 33301. Petitioner's license must be renewed annually. Applicable administrative rules require licensees to operate drug abuse programs under the supervision of a "qualified supervisor." Prior to September, 1986, a qualified supervisor was defined as an individual who, by "training or experience" was responsible for providing clinical guidance to counselors. 3/ In September, 1986, the ability of an individual to qualify as a qualified supervisor based solely upon his or her work experience was deleted. Since September, 1986, an individual who wished to satisfy the requirements of a qualified supervisor was required to either satisfy minimum educational requirements or become certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process ("certified addiction professionals" or "CAP designation"). Petitioner demonstrated its good faith effort to comply with Respondent's rules. Respondent's licensing agent advised Petitioner in 1987 that Petitioner would be in compliance with the new requirements for qualified supervisors as long as staff personnel placed their full name and title next to the comments on the client's records. That procedure was followed by staff personnel during the license years for 1987-1988 and 1988-1989. Petitioner's license was renewed during those years with no question from Respondent concerning the credentials of Petitioner's qualified supervisors. During the same license years, Petitioner's personnel were led to believe by Respondent's licensing agent and reasonably did believe that they were in full compliance with Respondent's rules. Petitioner relocated in 1987 and purchased a building rather than leasing one. The decision to purchase the building at the new location was made, in part, in reliance upon Respondent's representation and Petitioner's belief that Petitioner was in compliance with applicable rules regarding qualified supervisors. Respondent refused to issue a regular annual license to Petitioner for the 1989-1990 license year for the sole reason that Petitioner did not have a qualified supervisor. 4/ Respondent specifically determined that neither Mr. Art Barker nor Ms. Lybbi Kienzle satisfy the educational or certification requirements for qualified supervisors. 5/ It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are each competent to perform the duties of a qualified supervisor. Respondent determined that each individual is competent to perform the duties of a qualified supervisor and so stipulated in the joint prehearing stipulation filed in this proceeding. Respondent did not follow its own rule in rejecting Petitioner's request for a deviation. Respondent's current written policy was adopted as a rule after Petitioner's request for a deviation but prior to the formal hearing. Under Respondent's current rule, each district office must make a recommendation concerning each request for deviation made to the district office. The request for deviation and the district office recommendation is then considered by the licensure rules committee. The licensure rules committee then recommends action to appropriate department personnel who may either accept or reject the committee's recommendation. The approval of any request for deviation automatically ends at the time of the expiration date of the regular license. At the time of Petitioner's request for deviation, Respondent was in the process of developing its current written policy. Deviation requests and district office recommendations were considered at the time by an ad hoc committee of anywhere from three to seven people, depending upon who was available. The occurrence of such a meeting, the number of people, and the identity of the committee members was determined by "catch-as- you-can." A licensure rules committee was not officially formed until some time after Petitioner's request for deviation. Petitioner's request for deviation and the recommendation of the district office was not considered by any committee. The district office recommended that Petitioner's request for a deviation be granted. Approval of the request for deviation was recommended by the district office subject to the conditions that the deviation be limited to one year, that Petitioner submit a new request for deviation prior to its annual licensing date, and that the competency of Mr. Barker and Ms. Kienzle to perform the duties of qualified supervisors be documented by their respective resumes. Documentation in the form of resumes was not a significant concern to Respondent and was merely ministerial. The recommendation for approval of the request for deviation was made by employees of the Respondent who have personal knowledge of the experience and competency of Mr. Barker and Ms. Kienzle. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform the duties of a qualified supervisor. The district office, however, did recommend that either Mr. Barker or someone on his staff pursue CAP designation. The recommendation of the district office was overruled by Dr. Iver Groves, Ph.D., Assistant Secretary for Alcohol, Drug Abuse and Mental Health. The request for deviation was rejected on the grounds that Mr. Barker's honorary degree did not satisfy the educational requirements for a qualified supervisor. Dr. Groves determined that deviation from the educational requirements for a qualified supervisor cannot be granted under any circumstances. Dr. Groves suggested that Mr. Barker and Ms. Kienzle comply with the requirements for CAP designation or formal education. Dr. Groves has no personal knowledge of the experience and competency of either Mr. Barker or Ms. Kienzle to perform the duties of a qualified supervisor. Dr. Groves first became involved in this proceeding when a draft of a letter embodying the recommendation of the district office was presented to Dr. Groves for his signature. Dr. Groves spent an ". . . hour [or] maybe two hours . . ." considering Petitioner's request for deviation. Dr. Groves never saw the recommendation of the district office, was unaware that anyone in the district office recommended approval of the deviation, and did not consider the recommendation of the district office in making his determination to reject Petitioner's request for deviation. Dr. Groves never compared the requirements for a deviation in the applicable administrative rule to Petitioner's request for deviation. Dr. Groves rejected Petitioner's request for deviation based upon his concern over the establishment of a precedent for other programs in the state. Dr. Groves primary concern was whether it was appropriate to waive a ". . . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida." It is uncontroverted, however, that there are no other programs in the state that are comparable to that administered by Petitioner. The experience and competency of Mr. Barker and Ms. Kienzle to perform the duties of a qualified supervisor satisfies the purposes of the educational requirements for qualified supervisors. As Dr. Groves stated during his testimony at the formal hearing, the purpose of imposing educational requirements on qualified supervisors is to give Respondent ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program . . . has been through a certain organized set of experiences and has been judged to be qualified." Transcript at 111. Grounds For Deviation Neither Mr. Barker nor Ms. Kienzle satisfy either the educational or certification requirements for qualified supervisors. Neither individual has the requisite education and neither has been certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. The honorary degree received by Mr. Barker from Fort Lauderdale University does not satisfy the educational requirements for a qualified supervisor. Mr. Barker was awarded "The Honorary Degree of Doctor of Social Science" in June, 1972, by Fort Lauderdale University. Fort Lauderdale University was accredited at the time the honorary degree was awarded. The citation attached to the honorary degree states in relevant part that the degree was awarded to: . . . the outstanding drug rehabilitation expert in the United States [who] saved 1,500 young men and women from a life in prison or mental hospital or a premature death from a drug overdose. . . . The ninety per cent success rate of The Seed is a tribute to your genius. Neither Mr. Barker nor Ms. Kienzle satisfy the educational requirements for becoming certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. Applicants for CAP designation must hold a minimum of an Associates Arts degree from a college or university. The degree requirement became effective on January 1, 1991, and it was impossible for either Mr. Barker or Ms. Kienzle to satisfy the educational requirements prior to the formal hearing. Requiring Mr. Barker and Ms. Kienzle to satisfy the educational requirements for a qualified supervisor would interfere with the efficient operation of Petitioner. The time and energy needed to obtain the academic credits would impose an unnecessary hardship on each of them and detract from the time and energy they could devote to the drug abuse program administered by Petitioner. Requiring Petitioner to hire a certified addiction professional would interfere with Petitioner's efficient operation. Petitioner has a positive net worth and can pay for such services. In recent years, however, Petitioner has experienced operating deficits. The amount of funds received as donations and pledges has been less than annual operating expenses. Expenses incurred by Petitioner to hire one or more additional personnel who have obtained the CAP designation would increase Petitioner's operating deficit and further erode Petitioner's remaining net worth. Supervision of either Mr. Barker or Ms. Kienzle by a certified addiction professional would be superfluous and would interfere with Petitioner's efficient operation. Neither Mr. Barker nor Ms. Kienzle need to be supervised by one or more individuals who have obtained the CAP designation in order to perform the duties of a qualified supervisor. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform such duties. Deviation from the educational requirements for qualified supervisors for Mr. Barker and Ms. Kienzle will not jeopardize the health and safety of clients in the program administered by Petitioner, will not abridge the rights of those clients, and will not diminish the level of quality of client care. Mr. Barker is competent to provide clinical guidance to counselors, approve and reassess treatment plans, supervise psychosocial assessment services, and supervise treatment services for Petitioner. Mr. Barker has focused his time continuously and exclusively on running the drug abuse program for Petitioner. Ms. Kienzle graduated from Petitioner's drug abuse program in 1971 and has been employed continuously and exclusively by Petitioner as a counselor and supervisor. A master's degree in a social or behavioral science does not assure competency to perform the duties of a qualified supervisor in a drug abuse program. Respondent's rule does not require the field of academic study to be related to the duties that must be performed by a qualified supervisor. As Dr. Groves stated in his testimony during the formal hearing, the requirement for a master's degree in a social or behavioral science is satisfied by a master's degree in history or English. For the same reason, the requirement of an Associate Arts degree for a CAP designation does not assure competency to perform the duties of a qualified supervisor for a drug abuse program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should be granted a regular license for one year and the requested deviation. The deviation should automatically end at the time of the expiration date of the regular license or at such time as Petitioner's regular license is revoked, suspended, or otherwise terminated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of October 1991. DANIEL MANRY 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 23rd day of October 1991.
The Issue The issues presented herein are whether or not Respondent's incense to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violation of Chapters 458 and 893, Florida Statutes, as set forth in the Administrative Complaint filed herein signed May 31, 1983.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, stipulations of the parties and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a medical doctor and has been issued license number ME 0017825. Respondent's last known address is 2361 N.W. 24 Terrace, Miami, Florida 33172. (Stipulation of the parties) Respondent has been licensed as a medical doctor in Florida since 1971. Respondent studied at Havana University School of Medicine and graduated in 1957. He practiced in Cuba from 1957 through 1966. During that period, he was engaged in a general practice and was also a psychiatrist at Clinica Dependiente. While at Clinica Dependiente, Respondent served as a medical director for the rehabilitation of minors and as medical director for Santa Clinica Psiquiatria. Respondent relocated from Cuba and came to Miami on or about February 15, 1967. Respondent sat for the Federation of State and Medical Boards of the United States during September of 1968, the standardized test for graduates of foreign medical schools. During 1968 and 1969, Respondent was engaged as a psychiatrist at Halifax District Hospital in Daytona Beach, Florida. During 1969, he served a rotating internship at Mount Sinai Hospital for one year. Thereafter, he served rotating internships at Doctors, Victoria, Parkway and one other hospital in the Dade County area until approximately 1974. During his tenure at Halifax Hospital, Respondent treated some parties who were drug addicts. Respondent admits to having treated the patients referred to in the Administrative Complaint filed herein. Additionally, pursuant to Petitioner's Request for Admissions filed herein, Respondent has admitted the allegations set forth in paragraphs 3, 10, 17, 24, 31, 38, 45, 52 and 59 of the Administrative Complaint, to wit: Between the dates of approximately January 5, 1981 and December 15, 1981, Respondent prescribed 360 Dilaudid 2/ (Hydromorphone), a controlled substance, pursuant to Chapter 893, Florida Statutes, for Patrick Golden. Between the dates of approximately March 26, 1981 and January 15, 1982, Respondent prescribed 1425 Dilaudid (Hydromorphone) for Ellen Henderson. Between the dates of approximately March 2, 1981 and November 11, 1982, Respondent prescribed 855 Dilaudid (Hydromorphone) for Ronald Chica. Between the dates of approximately May 12, 1981 and January 9, 1982, Respondent prescribed 132 Dilaudid (Hydromorphone) for James Brannigan. Between the dates of approximately February 19, 1981 and February 2, 1982, Respondent prescribed 965 Dilaudid (Hydromorphone) for Gilbert Fernandez. Between the dates of approximately November 21, 1981 and December 12, 1981, Respondent prescribed 180 Dilaudid (Hydromorphone) for Patsy Gamlin. Between the dates of approximately January 7, 1981 and January 14, 1982, Respondent prescribed 820 Dilaudid (Hydromorphone) for Rudolph Ferguson. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2220 Dilaudid (Hydromorphone) for Michael Salle. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2190 Dilaudid (Hydromorphone) for Ronald Weatherington. Dale K. Lindberg, M.D., was tendered and received as an expert in these proceedings in the area of Family Practice, Methadone and Drug Addiction. Dr. Lindberg has been instrumental in establishing a methadone detoxification program at Memorial Hospital in Hollywood, Florida. Methadone is the only legally recognized Schedule II controlled substance used in this country for the treatment of drug addiction. Private practitioners, pursuant to specific federal law, cannot legally administer methadone or any other Schedule II controlled substance for the treatment of drug addition. In order to qualify or be certified to treat drug addicts, application must be made simultaneously with the Federal Food and Drug Administration (to their Methadone Monitor Division), to the Federal Drug Enforcement Agency and to the Federal Department of Mental Health and Drug Abuse. Upon certification with these governmental departments, only then can a physician prescribe methadone to a drug addict to be ingested in oral form, once a day. (21 C.F.R. 291.505) Dr. Lindberg received and reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for those patients by Respondent. (Petitioner's Exhibit 2-19). Dr. Lindberg, after review, concluded that Respondent inappropriately and excessively prescribed Dilaudid to said patients. Dr. Lindberg opined that Respondent prescribed Dilaudid for those patients for "very little indication" and continued over long periods of time prescribing Dilaudid to those patients. He considered that Respondent was maintaining the patients on Dilaudid in violation of the law. (TR 148, 239). Dr. John Handwerker, M.D., testified as an expert herein on behalf of Petitioner. He has served as the first Chairman of the Department of Family Practice at the University of Florida Family and Community Medicine Programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami and is Assistant Professor of Pharmacology at the University of Miami. Dr. Handwerker is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of Family Practice. Dr. Handwerker reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for each patient. Based upon Dr. Handwerker's review of those records and prescriptions, Respondent committed gross and repeated malpractice. This opinion stems from Respondent's "inappropriately and excessively prescribing Dilaudid to patient for chronic" while the Physicians Desk Reference clearly stated that Dilaudid should not be prescribed for patients with chronic pain. (Testimony of Dr. Handwerker) SPECIFIC PATIENTS A. Patrick Golden first visited Respondent's office on October 7, 1981. Golden complained of chronic pain arising from trauma suffered while he was involved in an industrial accident. His diagnosis was a compression of the fourth and fifth lumbar disk. He was treated for radiculitis. Respondent prescribed Dilaudid to relieve the pain that patient Golden was suffering from and based on the fact that Golden reportedly had been receiving Dilaudid from a former physician. Respondent conducted an examination of patient Golden and prescribed exercises for him. Respondent did not take x-rays although he states that he observed x-rays which had been taken by Golden's former physician. Respondent prescribed Dilaudid for Golden because it was the only drug which "killed the pain, unlike motrin and metrobromate." Nearing the end of Respondent's treatment of patient Golden, his wife began stealing Mr. Golden's drugs. Respondent referred her to a methadone program and obtained a notarized statement from Mrs. Golden to substantiate the fact that she was diverting drugs intended for her husband. Respondent observed that patient Golden was becoming addicted to Dilaudid nearing the end of his treatment although throughout the major portion of his treatment of patient Golden, he felt that while he was dependent on Dilaudid, he was not felt that while he was dependent on Dilaudid, he was not "addicted." Respondent tried to reduce the amount of Dilaudid that he was prescribing to patient Golden without success. Respondent believed that Dilaudid was medically necessary to treat patient Golden due to the suffering he was undergoing from the chronic pain. (Respondent's testimony and Petitioner's Exhibit 20). B. Ellen Henderson was treated by Respondent during the dates of approximately March, 1981 through January, 1982. Henderson suffered with her lumbar spine. Patient Henderson took motrin tablets since her preteen years. Patient Henderson has been treated at several methadone centers and is believed to have been taking approximately 25-40 Dilaudid four-milligram tablets per day. Upon Respondent's first treatment of patient Henderson, he advised her that she was "killing herself and that she needed to reduce that terrible dosage of Dilaudid." Patient Henderson was "treated for pain in the back and to reduce the amount of Dilaudid." In this regard, Respondent tried to reduce her intake of Dilaudid to approximately 8 Dilaudid four-milligram tablets per day. When Respondent stopped treating patient Henderson, he had reduced the amount of Dilaudid that he was prescribing for her to approximately 8 four- milligram tablets of Dilaudid per day. C. Respondent treated Ronald Chica from approximately March, 1981 through November, 1982. Chica was treated for spondylolysis--a degeneration of the vertebrae. Respondent prescribed Dilaudid for patient Chica because it relieved the pain. Respondent knew that patient Chica was addicted to the drug Dilaudid. D. James Brannigan was treated by Respondent from approximately May of 1981 through January of 1982. Respondent knew that Mr. Brannigan was dependent upon Dilaudid. Despite this knowledge, Respondent continued to prescribe Dilaudid for Mr. Brannigan in an effort to treat Brannigan's addiction with Dilaudid. Respondent was attempting to ease the withdrawal symptoms that patient Brannigan would suffer if he were immediately cut off from his supply of Dilaudid. E. Respondent treated patient Gilbert Fernandez during the dates of approximately February of 1981 through approximately February of 1982. During that period, Mr. Fernandez suffered from compression features of the ribs and the lumbar region. Mr. Fernandez had a physical and psychological dependence on the drug Dilaudid. Respondent treated patient Fernandez by prescribing Dilaudid tablets for him. Patient Fernandez had been treated at methadone centers in the past and presently was receiving methadone treatment while Respondent was treating him. Respondent prescribed Dilaudid to relieve the pain as well as to ease the withdrawal symptoms that patient Fernandez would undergo if he was immediately taken from the administration of Dilaudid. F. Between the dates of approximately February of 1981 through February of 1982, Respondent prescribed approximately 2,190 four-milligram Dilaudid tablets for patient Ronald Wetherington. Patient Wetherington was given approximately 60 tablets every 7 days. Patient Wetherington was addicted to the drug Dilaudid and Respondent ultimately referred him to a methadone center to deal with his withdrawal problems. G. During the period of February, 1981 through February, 1982, Respondent prescribed approximately 2,220 four-milligram Dilaudid tablets for patient Michael Sallee. Patient Sallee suffered from and was treated by Respondent for a compression fracture of the fifth lumbar. Mr. Sallee was a cabinetmaker and did considerable lifting in the performance of his work. Respondent knew that Mr. Sallee was dependent upon Dilaudid and continued to prescribe the narcotic during the term of his treatment. Respondent attempted to treat Mr. Sallee's addiction with Dilaudid. H. During the period of January of 1981 through January of 1982, Respondent treated patient Rudolph Ferguson and, during that period, prescribed approximately 820 four-milligram Dilaudid tablets for him. Patient Ferguson suffered from and was treated for back and rib problems from an auto accident. Respondent knew that patient Ferguson was dependent upon the drug Dilaudid and knew he was addicted to Dilaudid. Despite this knowledge, Respondent continued prescribing the drug Dilaudid to patient Ferguson to reduce the withdrawal symptoms and "to continue to treat the disease." Respondent referred patient Ferguson to a methadone clinic and, in fact, drove him to a nearby clinic for treatment. I. Respondent treated patient Patsy Gamlin during the period of November 21, 1981 through December 12, 1981. During that period, he prescribed 180 tablets or approximately 60 tablets every 10-14. Respondent administered a drug screen during December of 1981 and did not treat patient Gamlin after December. Dilaudid is a narcotic analgesic; its principal therapeutic effect is relief of pain. There is no intrinsic limit to the analgesic effect of Dilaudid; like morphine, adequate doses will relieve even the most severe pain. Clinically however, dosage limitations are imposed by the adverse effect, primarily respiratory, depression, nausea and vomiting which can result from high dosages. (Physicians Desk Reference, page 1038 [1984 Edition]) The Physicians Desk Reference has this to say about drug abuse and dependence: Dilaudid is a schedule II narcotic. Psychic dependence, physical dependence, and tolerance may develop upon repeated administration of narcotics; therefore dilaudid should be prescribed and administered with caution. However, psychic dependence is unlikely to develop when dilaudid is used for a short time for treatment of pain. Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, usually assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependence may develop after a few days of narcotic therapy. Tolerance, in which increasingly large doses are required in order to produce the same degree of analgesia, is manifested initially by a shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients. Prior to prescribing a drug such as Dilaudid, a physician should take a full history from a patient and perform a thorough physical examination. The history should include, inter alia, the patient's chief complaint, with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck, chest and back regions. If patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substance here at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological evolvement, including straight-leg raise tests, impairment of sensation in the extremities tests and other neurological inquiries. Such a full history and a physical examination is prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely being pain symptoms. An examination of the Respondent's records and the prescribing patterns of Dilaudid for the patients involved indicates that Respondent simply made insufficient findings upon which to base the decision to prescribe the drug Dilaudid. By prescribing Dilaudid, without an adequate physical examination, or the gathering of detailed patient medical history, would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. By continuing to prescribe these drugs, without any involved discussion or consideration of the effect the previous course of treatment had had on the patient, other than simple inquiry by Respondent concerning, as example, how the patient was feeling, 3/ also constitutes inappropriate prescribing of scheduled controlled substances, and demonstrates a failure to conform to the generally accepted an prevailing standards of medical practice in the Dade County community. (Testimony of Dr. Handwerker) Respondent has never been subjected to disciplinary proceedings in the past. His past professional record reveals that he has a sincere concern for his patients. Throughout these investigative proceedings and the final hearing herein, the Respondent was candid, forthright and truthful. His prescribing of the controlled substance Dilaudid was based on his mistaken opinion that it was medically necessary to prescribe Dilaudid for his patients. Throughout these proceedings, it became clear that Respondent had not kept abreast of the proper course of treatment, detection and proper prescribing patterns for scheduled drugs for the patients be treated. To Respondent's credit, he has been studying the proper prescribing of controlled substances since the initiation of the investigation and the administrative proceedings involved herein. Respondent has never "faked" exams and every prescription that he wrote was based on an office visit and an exam, though a very cursory exam. Respondent did not receive any illegal profits from the sale of drugs nor did he divert, or attempt to divert, any drugs for illegal profit. His office fees, which range from $15 to $25 were not based on the amount of the drugs prescribed but, rather, on the patient's ability to pay. Respondent operates a small general practice with his wife serving as his receptionist. He personally completes all prescription forms with his wife/receptionist. Patients receiving treatment from Respondent are free to get their prescriptions filled at any pharmacy of their choice. Respondent was unaware and the evidence does not show that any of his patients had prior criminal records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and the entire evidence of record, it is therefore recommended that a Final Order be entered imposing a written reprimand and one year's probation upon the Respondent Carlos de la Fe, and requiring that during the probationary, he enroll and complete, to the satisfaction of the Board of Medical Examiners, a continuing medical education course concerned with the appropriate indications for and prescription of scheduled controlled substances. 4/ RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of October, 1984.
The Issue Whether Respondent failed to maintain the qualification set forth in Section 943.13(7), Florida Statutes, requiring a law enforcement officer in the State of Florida to have good moral character by unlawfully being in actual or constructive possession of cocaine on or about May 9, 1988, and by introducing cocaine into her body on or about that date.
Findings Of Fact On November 15, 1974, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 02-11734 was duly issued to Respondent by Petitioner. Respondent is a sworn police officer who has been employed as an investigator in the Special Investigations Unit of the Dade County School System for over 14 years. The Special Investigations Unit is a law enforcement agency consisting of approximately 56 sworn officers whose duties include follow-up investigations on internal issues and the investigation of crimes that are committed on School Board property. There is also a uniformed division which patrols certain of the schools in the Dade County system. The sworn officers of the Special Investigation Unit are required to be certified by Petitioner even though they are employed by the Dade County School Board as School Board employees. The sworn officers of the Special Investigation Unit are represented for collective bargaining purposes with the Dade County School Board by the Police Benevolent Association. The labor contract that was negotiated on behalf of Respondent and her fellow sworn officers of the Special Investigative Unit require that each sworn officer take an annual physical to include the giving of a urine sample from the officer to be analyzed for the presence of controlled substances. Respondent was directed by her employer to present herself on May 9, 1988, for an annual physical examination at Mount Sinai Medical Center. Respondent was aware that an annual physical, including a drug test would be required of her. She was given over two weeks advance notice of the exact date the physical examination would occur. On May 9, 1988, Respondent reported to Mount Sinai Medical Center to submit to the annual physical examination required by her employer. She was given a small sterile sample bottle in which she produced a sample of her urine as instructed. Nurse Cheryl Cain, the Mount Sinai employee responsible for the collection of the urine sample from Respondent, received the urine sample from Respondent and promptly divided the urine sample into two smaller sterile bottles and sealed each of the smaller bottles with its cap and with evidence tape. Nurse Cain followed Mount Sinai's procedures in collecting and sealing the urine sample. The sealed bottles containing Respondent's urine sample were labeled so that each bottle was identified as containing Respondent's urine sample. An identifying series of numbers, referred to as that bottle's bar code, was placed on each of the bottles. Bar code number 118856 was placed on one bottle and bar code number 110783 was placed on the other bottle. The two bottles were then placed in a locked box. On May 9, 1988, the sealed bottles containing Respondent's urine sample were picked up by an employee of Toxicology Testing Service and transported to the facilities of Toxicology Testing Service in Dade County, Florida. Mount Sinai used adequate procedures to ensure that Respondent's urine sample was properly labeled, that the chain of custody was properly maintained, and that the two specimen bottles could not be tampered with without detection. On May 19, 1988, sample bottle 118856 was opened by a laboratory analyst employed by Toxicology Testing Service. A small sample of Respondent's urine sample, referred to as an aliquot, was removed from sample bottle 118856 with a sterile disposable plastic pipette and placed in a sterile disposable cup for analysis. The aliquot of Respondent's urine sample was introduced into the analyzer equipment used by Toxicology Testing Service to screen the sample for the possible presence of controlled substances. The sample screened positive for a cocaine metabolite, which is a metabolized derivative of cocaine created by the natural processing of cocaine by the human body. This screening procedure, known as an emit test, produced a result of 71 on the first screening and a 69 when a separate aliquot from sample 118856 was tested. The emit test is conducted using an Hitachi 705 machine, a piece of equipment that is widely used in the industry. As calibrated, a score of 50 is considered a positive score for cocaine. The purpose of the emit test is to screen those samples that will be later analyzed by gas chromatography mass spectrometry method of testing urine samples. A confirmatory analysis of the sample was then conducted utilizing the gas chromatography mass spectrometry method of testing urine samples. This method is over 99.99% accurate and is the accepted method among toxicologists for identifying drugs and their metabolites. The confirmatory analysis confirmed that Respondent's urine sample was positive for the presence of a cocaine metabolite that can only be produced through the ingestion of cocaine. Subsequent testing on June 3, 1988, by Toxicology Testing Services of aliquots from sample bottle 110783, followed the same procedures as those followed for the analysis of aliquots from sample bottle 118856 and produced similar, positive results for the presence of the cocaine metabolite. Toxicology Testing Service used adequate procedures to ensure that Respondent's urine sample was properly identified, that the chain of custody was properly maintained, and that sample bottle 118856 and sample bottle 110783 had not been tampered with. The testing procedures followed by Toxicology Testing Service are widely accepted in the industry. The equipment used by Toxicology Testing Service was in proper working order. The procedures followed in the taking of Respondent's urine sample and in the subsequent analysis of the aliquots from Respondent's urine sample were consistent with the procedures set forth in Rule 11B-27.00225, Florida Administrative Code, which is entitled "Controlled Substance Testing Procedures". Respondent denies that she has ever used or has unlawfully possessed cocaine. Respondent handles cocaine from time to time in the execution of her official responsibilities, but she was unable to point to an incident that may have produced the positive test results through incidental contact with cocaine. Although samples of the currency in use in South Florida have tested positive for the presence of cocaine, Respondent would not have ingested sufficient quantities of cocaine from currency to produce the level of the cocaine metabolite reflected by the testing. On May 23, 1988, Respondent was advised by her supervisor that she had tested positive for cocaine. Respondent immediately gave another urine sample that tested negative for cocaine. Respondent had attended training sessions that taught that cocaine usually cleared the human body after 72 hours. This is a misconception. The speed with which the cocaine metabolite clears the human system depends on many variable factors, including the general physical condition of the person involved, the amounts of liquids consumed by the person, and the amount of exercise by the person. Cocaine metabolite can be detected in the human body more than 72 hours after its ingestion. Respondent failed to offer any plausible explanation for the positive results of cocaine being detected in her system that would permit any conclusion other than the conclusion that she had voluntarily ingested cocaine. Respondent has been an exemplary employee since her initial employment with the Special Investigative Unit. She has never been suspected of drug use by her superiors. None of her fellow officers ever reported that they suspected Respondent of drug use. Respondent has had several commendations during her term of service. Her performance evaluations have always been satisfactory or higher. Based on the charges involved in the pending proceeding, the Dade County School Board suspended Respondent's employment and instituted proceedings to discharge her from its employ. Following an administrative hearing, the hearing officer (who was not employed by or assigned by the Division of Administrative Hearings) found that the drug tests that found the positive results for cocaine were not reliable and recommended that Respondent be reinstated to her employment. The finding by the previous hearing officer that the tests were not reliable is not binding here and is contrary to the greater weight of the evidence in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character and which further revokes the certification of Respondent as a law enforcement officer. DONE AND ENTERED this 29th day of January, 1990, in Tallahassee, Leon County, Florida. CLAUD B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1990. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. T. Smith, Esquire 1017 N.W. 9th Court Miami, Florida 33136 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent Della Elaine Lamberton should be granted re-registration of terminated license No. 34741-1 as indicated in the Administrative Complaint dated 7-18-78, pursuant to Section 464.21(1)(d), Florida Statutes. Respondent Della Elaine Lamberton appeared at the hearing without counsel or other representative. The Hearing Officer explained her rights in an administrative hearing and she acknowledged that she understood the same. The Respondent also stated that she is now married and that her married name is Farris. Petitioner moved to amend paragraph 3 of the Administrative Complaint to reflect that Respondent was arrested in January, 1976 rather than 1975 as alleged therein. There being no objection, the request was granted.
Findings Of Fact Respondent was licensed as a Licensed Practical Nurse with the Florida State Board of Nursing in 1974 and such license was automatically terminated on April 1, 1977, for non-payment of license renewal fee. On August 11, 1977, Respondent filed an application for re-registration of her terminated license with Petitioner. Petitioner reviewed the application and denied the same by a letter to Respondent dated October 28, 1977, under the authority of Section 464.21(d), Florida Statutes. The specific basis for denial was that Respondent had a prior arrest for possession of marijuana. (Testimony of Johnson, Exhibit 1-2) On February 4, 1975, Hillsborough County Deputy Sheriff Gene L. Stokes and Detective William Strickland, who were operating as undercover narcotic detectives, entered Respondent's residence at 3213 Delray Drive, Tampa, Florida. They had made prearrangements with Joseph H. Farris, who also resided at that residence, to purchase approximately two pounds of marijuana for $175.00 per pound. Farris met the officers at the door and escorted them into the kitchen where Respondent, Albert Yourn, and Thomas Spear, were seated around the kitchen table. A neighbor, Nancy Anderson, entered the residence at the same time as did Stokes and Strickland. Farris proceeded to cut a quantity of material from a compressed block of a substance that appeared to he marijuana. He placed the severed portion in a ziplock "haggle" and weighed it on a scale located on the kitchen table. At that point, the officers arrested all persons on the premises for possession and delivery of marijuana. A search of the residence pursuant to a search warrant revealed the presence of other quantities of marijuana and implements for its use in a kitchen desk drawer and in a cabinet above the kitchen stove. Two bags of marijuana were also found in Spear's possession as a result of a search of his person. The amount of marijuana remaining on the kitchen table was approximately 920 grams and a "haggle" containing approximately 16 pre-wrapped ounces of marijuana was also on the kitchen table. The substance which had been sold to Stokes was delivered to the Florida State Crime Laboratory in Tampa and, after analysis by Richard H. Estes, a forensic chemist employed by the Florida Department of Law Enforcement, was determined to be cannabis sativa, also known as marijuana. Marijuana is a Schedule I controlled drug under Chapter 893, Florida Statutes. (Testimony of Stokes, Estes) On February 13, 1975, an Information was filed in the Circuit Court of Hillsborough County, Florida against Respondent for possession of more than five grams of marijuana on February 4, 1975, in violation of subsection 893.13(1)(e) Florida Statutes. On May 25, 1976, Respondent entered a plea of guilty to the charge and Order Withholding Adjudication of Guilt was entered by the Court with probation for a period of two years. (Exhibits 3-4) Respondent testified at the hearing that she had no knowledge that marijuana was being sold at her residence on February 5, 1975, and that she had not entered the house until subsequent to the entrance by the detectives. She admitted that her residence had been a gathering place for individuals in the neighborhood, including some of whom she did not approve and also persons unknown to her. She testified that although she pleaded guilty to the charge of possession of marijuana, she was under the impression that she was simply acknowledging that marijuana had been present at her residence. She also testified that when she had discovered what was taking place at her home, she "started a little hassle " with Farris. Her present husband, Joseph Farris, testified and corroborated her version of the incident, including her claim that she was unaware of the presence of marijuana on the premises. In addition, her cousin, Albert Yourn, who was present at the time of the arrest, testified that Respondent was not in the house at the time the drug transaction was taking place, but that she arrived prior to the arrest. (Testimony of Respondent, J. Farris, Yourn) Petitioner's records reflect that Respondent meets all other qualifications for licensure. They do not show the presence of any other derogatory information prior to or subsequent to Respondent's arrest. (Testimony of Johnson)
Recommendation That the application of Respondent Della Elaine Lamberton Farris for re-registration as a Licensed Practical Nurse be denied under the authority of Section 464.21(1)(d) Florida Statutes. That favorable consideration he given to any subsequent application by Respondent for re-registration, provided that such application is accompanied by proof of present good character. DONE and ENTERED this 27th day of December, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Investigation and Licensing State Board of Nursing 6501 Arlington Expressway Bldg B Jacksonville, Florida 32211 Della Elaine Lamberton Farris 3202 Clifford Sample Drive Tampa, Florida 33619
