Findings Of Fact Petitioner, the Agency for Health Care Administration, is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times pertinent to this proceeding Respondent has been a licensed Registered Nurse, having been issued license number RN 1730452. On July 26, 1993, Respondent was admitted to Palmetto General Hospital where she was given a blood alcohol test. The tests revealed that she had a blood alcohol level of 0.317. The medical records maintained in the regular course of its business reflected that Respondent was diagnosed by Dr. Samuel Pinosky as suffering from depression and alcohol dependency. 1/ On July 29, 1993, Respondent was referred to the Intervention Project for Nurses (IPN), an organization that provides assistance to nurses who suffer from addiction. Respondent refused to cooperate with the IPN and stopped attending meetings during August of 1993. On October 29, 1993, Dr. Pinosky noted in his progress notes that he had seen Respondent and that she has "poor insight into [her] alcoholism" and that her "control issues" were evident. Respondent was subsequently evaluated by Dr. John Eustace, the medical director for the Addiction Treatment Program at Mount Sinai Medical Center of Greater Miami. As of December 10, 1993, Dr. Eustace was of the opinion that Respondent suffered from active alcohol abuse and that she was a potential danger to the nursing profession and to patients whom she might serve. Dr. Eustace noted that Respondent was resistant to usual alcohol rehabilitation treatment modalities. On or about December 29, 1993, Respondent was evaluated by Dr. Stephen Kahn, a psychiatrist and addicitionalist. Dr. Kahn prepared a report based on his evaluation and history of the Respondent. His report, dated January 10, 1993 (sic), 2/ provided, in pertinent part, as follows: Ms. Cifuentes presents a very interesting picture, in that she has a history of psychotic episodes over a nine year period, and functioned very little for almost 15 years, and now [has] what appears to be a somewhat long standing, but more recently quite florid, alcoholism. She shows no sign of any psychotic symptomatology at this time, but her mood is clearly very labile. She clearly suffers addiction to alcohol, and although she has some insight into this disease, she is also in a considerable amount of denial. Emotionally, she has not accepted this disease, and clearly does not want to look at this any longer. Given her degree of denial, and her emotional instability, exacerbated by the recent loss of her husband in a plane accident, the prognosis is not good. . . . [S]he is a high risk candidate to relapse. I do not believe it would be safe for this woman to practice nursing without further therapy geared toward recovery from addiction with possible psychiatric intervention as necessary. Kenneth W. Thompson, M.D., was accepted as an expert witness in the field of addiction medicine. Dr. Thompson testified without contradiction that alcoholism is a disease that requires treatment. There was no evidence that Respondent has accepted the offers of treatment that have been made to her by the IPN or that she has otherwise sought or received treatment for her alcoholism. Dr. Thompson opined with reasonable medical certainty that the Respondent is unsafe to practice nursing due to her alcoholism and due to mental illness. Dr. Thompson's opinions are consistent with the uncontradicted evidence in this proceeding. Based on the record of this proceeding, it is found that Respondent is unsafe to practice nursing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes the licensure of the Respondent, requires the IPN to provide her services if she requests assistance, and provides for reinstatement of her licensure on appropriate terms and conditions upon proof that she can safely practice. DONE AND ENTERED this 10th day of October 1995 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 10th day of October 1995.
Findings Of Fact The amount in controversy following initial conferences between the parties was $108,028 district-wide. The Mental Health Board acknowledges and admits liability as a result of the 1980-81 state audit of $41,955. DHRS acknowledges that an audit adjustment of $38,296 is justified. This principally comprises the rental value of donated space which was initially disallowed. The Board contracts with health care providers to provide services to residents of the area. One of these providers is the Pinellas Comprehensive Alcohol Services (PCAS) which the Board contracted to reimburse for the cost of providing alcohol treatment and services to the residents of Pinellas County. PCAS entered into a contract with the Veterans Administration to provide services to veterans of the area at a cost to the VA of $17 per day. The difference in the actual cost of providing the services to the veterans for the period covered by this audit and the $17 per day per veteran reimbursed to PCAS amounts to $27,675. It is this sum that DHRS has disallowed and contends is owed to DHRS in addition to the $41,955 acknowledged as owed by the Board. All persons receiving services pursuant to the VA contract would have qualified to receive services pursuant to PCAS contracts with the Board and the total cost of their treatment would have been allowable if they were financially unable to pay. No evidence was submitted regarding the financial ability of these VA patients to pay for the services had they not been entitled to veterans hospitalization. Absent the $17 per day contract with the VA, all of these veterans could have been treated at PCAS and the total cost of their treatment for which the patients were not financially able to pay would have been allowed as a cost for which DHRS would provide matching funds. In reaching the sum $27,675 in disallowed costs, the auditor for DHRS found the total cost of providing these services by PCAS to be $95,695. Thirteen of the 25 beds were allocated to the VA patients and 12 were allocated to DHRS patients. Allocating 13/25 of the cost of $95,695 results in just under $50,000 costs allocated to the VA. Reimbursement from the VA was $22,530 which, when deducted from the costs for the VA patients, equals $27,675, the amount in dispute.
Recommendation It is therefore RECOMMENDED that the expenditure of the disallowed $27,675 cost of providing services to VA patients be allowed and that a final order be entered directing the Pinellas/Pasco District Mental Health Board V, Inc., reimburse DHRS in the amount of $41,955 for disallowed expenditures for the 1980-81 fiscal year. DONE AND ENTERED this 25th day of June 1984 at Tallahassee, Leon County, Florida. K. N. AYERS 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 25th day of June 1984. COPIES FURNISHED: Claire D. Dryfuss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jeffrey L. Myers, Esquire Galleria Plaza, Suite 10 12551 Indian Rocks Road Largo, Florida 33544 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination is whether the nursing license of Alice M. Thomas Lofton should be disciplined for violations of Section 464.018(1)(f) and (h), F.S., by reporting to duty under the influence of alcohol.
Findings Of Fact Alice M. Thomas Lofton is now, and was at all times relevant in this proceeding, licensed as a registered nurse in Florida under license number 59769-2. In September 1985, Ms. Lofton was employed as a staff nurse at Tampa General Hospital. On September 15, 1985, she reported for duty smelling of alcohol and unsteady on her feet. Her speech was slow, deliberate and slurred and she was observed to have difficulty in taking a patient's blood pressure. She appeared to be intoxicated. When confronted by her supervisor, Ms. Lofton voluntarily submitted to a blood and urine test. The blood-alcohol test was returned with the result of .14 percent (.141 gm/dl). Ms. Lofton was sent home. She was subsequently given an opportunity to keep her job if she would participate in and follow the recommendations of the employee assistance program at Tampa General Hospital. She agreed to participate but did not comply with the counselor's recommendations, so she was terminated. It is both unprofessional and unsafe for a nurse to practice while under the influence of alcohol. Alice Lofton was a longtime employee of Tampa General Hospital. She had been an assistant head nurse for four and a half years. She admitted that at one time she thought she had a drinking problem and was once admitted to the emergency room under the influence of alcohol. No evidence was presented of other disciplinary actions regarding Ms. Lofton's license or regarding her employment as a registered nurse. No evidence was presented that a patient was harmed or that Ms. Lofton, except for her intoxicated appearance at work, ever failed to conform to minimal standards of acceptable prevailing nursing practice. Ms. Lofton claimed that the incident was the result of a conspiracy against her because she had asked for a transfer when her supervisors really needed her and wanted her to stay. The claim was inherently contradictory and was unsubstantiated.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a final order be entered finding Alice M. Thomas Lofton guilty of a violation of Subsections 464.018(1)(f) and (h), F.S., and suspending her license for a period of 30 days and thereafter until she can demonstrate her ability to practice nursing safely. The demonstration should include a physical or psychological examination to determine whether she has an alcoholism problem requiring treatment, and, if so, continued probation is recommended to insure that such treatment is obtained. DONE and RECOMMENDED this 17th day of December 1986, in Tallahassee, Florida. MARY CLARK 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 17th day of December 1986. COPIES FURNISHED: William M. Furlow, Esquire Senior Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301 Alice T. Lofton 2703 Spruce Street Tampa, Florida 38687 Judie Ritter Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 Fred Roche Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing assistance pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. At all times relevant to these proceedings, Respondent was a certified nursing assistant, having been issued license number 84961. Her address with the Department of Health is Post Office Box 402, McIntosh, Florida 32664. On June 25, 2007, a Final Order was entered by the Board of Nursing against Respondent. The Final Order required Respondent to pay a fine of $50.00, enroll in and successfully complete courses in Legal Aspects for Nursing Assistants, and placed Respondent on probation for two years. A condition of the two-year probation was “[w]hether employed as a nurse or not, the licensee shall submit written reports to the Nursing Compliance Officer which shall contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer; and a statement by the licensee describing her employment. This report shall be submitted to the Nursing Compliance Officer every three (3) months in a manner as directed by the Nursing Compliance Officer.” (Emphasis supplied.) Respondent’s probation required that she “be responsible for assuring that reports from nursing supervisors will be furnished to the Nursing Compliance Officer every three (3) months. That report shall describe the licensee’s work assignment, work load, level of performance, and any problems." Quarterly self-reports and reports from her nursing supervisor, if any, were due to the Department on September 24, 2007, December 24, 2007, March 24, 2008, June 24, 2008, September 24, 2008, December 24, 2008, March 24, 2009, and June 24, 2009. Failure to comply with the terms of probation contained in the Final Order without prior written consent from the Board of Nursing was a violation of Respondent’s probation. As part of the Final Order a Notice of Appeal Rights was included, indicating that Respondent had 30 days to file a Notice of Appeal with the clerk of the department pursuant to Section 120.68, Florida Statutes, if she wanted to challenge the Final Order. Shaila Washington, a compliance officer for the Board of Nursing, was Respondent’s compliance officer. As Respondent’s compliance officer, Ms. Washington mailed Respondent the Board of Nursing's standard information packet on July 18, 2007. The packet outlines the terms imposed by the Board and summarizes what the Respondent needed to do in order to comply, including definite due dates listed above. The letter accompanying the information packet states in bold, "Remember, it is your responsibility to read the final order and ask questions if you do not understand it." Respondent did not contact her compliance officer regarding the information packet mailed to her. She also did not appeal the final order. Ms. Washington testified, and Respondent confirmed, that Respondent failed to submit any of the quarterly reports, by Respondent or any supervisor, as required pursuant to the terms of Respondent’s probation. Respondent stated that she did not file any of the reports because she was not working as a CNA. However, the Final Order was clear that even if Respondent was not employed, she was required to follow the probation terms and submit the reports.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Nursing enter a Final Order finding that Respondent has violated Section 464.204(1)(b) and Section 456.072(1)(q), Florida Statutes. It is further recommended that Respondent’s license to practice nursing assistance be reprimanded and that Respondent’s license be suspended, with the suspension stayed for 60 days to allow Respondent to comply with the terms of the Board’s prior Final Order. If within 60 days Respondent has not complied with the terms of the Board’s prior Final Order, it is recommended that the stay will be lifted and the suspension be imposed. The suspension will be lifted upon Respondent’s compliance with the Board’s prior Final Order. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2009.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Department and the Board of Nursing have regulatory jurisdiction over licensed nurses such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On January 5, 1999, the Department issued Respondent license number RN3344322, which authorized her to practice as a registered nurse in the state of Florida. Respondent's address of record is 1720 Harrison Street, Apartment 11G, Hollywood, Florida. Though the record is less than explicit, it appears that, in or around July 2011, Respondent was suspected of misappropriating a small quantity of diazepam, a Schedule IV controlled substance. Although the administrative charges stemming from that allegation were ultimately dismissed, Respondent entered into an advocacy contract ("Contract") with the Intervention Project for Nurses ("IPN"), a program2/ which contracts with the Board of Nursing to monitor practitioners struggling with substance abuse issues or other problems. The Contract, which Respondent executed on October 5, 2011, mandated that she abstain from all mood-altering substances——including alcohol——for a period of two years; submit to random toxicology screens; and inform any potential employer of her participation in IPN. Further, by signing the Contract, Respondent acknowledged that she had reviewed the IPN Participant Manual ("Manual") and would abide by its terms. Significantly, the Manual provided that, upon a relapse,3/ Respondent would be required, as a condition of continued enrollment in IPN, to refrain from nursing until such time that an IPN-facilitated evaluation could be performed.4/ Subsequently, on or about December 20, 2011, Respondent obtained employment with Wound Technology Center as a "call-center nurse." In connection with this position, which required licensure as a registered nurse, Respondent provided consultation services to clinicians regarding wound treatment. Thereafter, on January 18, 2012, IPN requested that Respondent furnish a sample of her urine for testing. The results, which IPN received on January 24, 2012, revealed the presence of ethyl glucuronide (a metabolite of ethyl alcohol) and ethyl sulfate. That very afternoon, Patrice Ward, an IPN case manager, contacted Respondent by telephone to discuss the positive test result. During the ensuing conversation, Respondent admitted that she had consumed a glass of wine5/ with dinner, at which point Ms. Ward instructed Respondent to immediately refrain from nursing practice. Regrettably, Respondent failed to comply, without good cause, with Ms. Ward's directive to refrain from practice; indeed, the evidence demonstrates that Respondent continued to perform her regular nursing duties over the next two work days. Respondent's failure to refrain from nursing was quickly brought to the attention of IPN's executive director, who, consistent with the Contract's express provisions, terminated Respondent from IPN on January 26, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating section 456.072(1)(hh); suspending Respondent's nursing license until such time that an IPN-facilitated evaluation is completed and Respondent is deemed fit to return to practice; and ordering Respondent to enter into a monitoring agreement with IPN, should the IPN-coordinated evaluation demonstrate the need for further treatment. DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2014.
The Issue The issues are whether Respondent is in violation of section 464.018(1)(j), Florida Statutes (2020),1 by being unable to practice nursing with reasonable skill and safety; and, if so, the appropriate penalty. 1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida Statutes. See McClosky v. Dep’t of Fin. Serv., 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that a proceeding is governed by the law in effect at the time of the commission of the acts alleged to constitute a violation of law).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: The Department of Health, Board of Nursing, is the state agency charged with regulating nursing in the State of Florida, pursuant to chapters 456 and 464, Florida Statutes. Mr. Kemp is a combat veteran who participated in Operation Desert Storm. In 2004 or 2005, he earned a nursing degree from Virginia College and became licensed in the State of Florida as a licensed practical nurse (“LPN”). Mr. Kemp suffers from post-traumatic stress disorder (“PTSD”), anxiety, and depression. Three or four years ago, Mr. Kemp participated in an outpatient, substance abuse treatment program in Gulf Breeze, Florida. He successfully completed the program but was diagnosed with alcohol abuse disorder. During the Summer of 2020, Mr. Kemp was employed as the Assistant Director of Nursing at a healthcare facility called The Waterford at Creekside (“Creekside”). Belinda Kaye Bass was Creekside’s Director of Nursing and had known Mr. Kemp for approximately 10 years due to previously working with him at Southern Oaks Nursing Home. On approximately Tuesday, June 30, 2020, Mr. Kemp called Ms. Bass to tell her that he was having issues with his father. Mr. Kemp did not report for work the next day, and Ms. Bass became concerned when she was unable to reach him by telephone.3 Because she was already scheduled to leave Creekside’s campus for business purposes on July 2, 2020, Ms. Bass decided to visit Mr. Kemp’s home that morning in order to check on him. Mr. Kemp was at home that morning and had been drinking liquor prior to Ms. Bass’s arrival. At some point during her visit, she was alone in a room of the house and noticed a box containing a bottle of morphine on the floor. Upon picking it up, she discovered that the morphine belonged to a Creekside resident. When Mr. Kemp returned to the room, Ms. Bass asked him about the morphine, and he responded by telling her to leave and accused her of attempting to set him up. Ms. Bass thought that Mr. Kemp was acting paranoid and seemed impaired.4 Ms. Bass returned the morphine to Creekside and called the police. The seal on the morphine bottle was intact, and the police declined to pursue charges against Mr. Kemp. Creekside fired Mr. Kemp on July 3, 2020, for “gross misconduct.” Pursuant to its authority under section 464.018(1)(j), the Department ordered Mr. Kemp to undergo an evaluation of his mental and physical condition.5 Part of that evaluation was a phosphatidyl ethanol (“PEth”) test 3 Mr. Kemp testified that he had told an unidentified person in authority at Creekside on approximately June 30, 2020, that he was resigning because his workload was excessive. Ms. Bass was unaware of Mr. Kemp’s resignation, and her testimony on this point is credited. 4 Mr. Kemp denied that Ms. Bass found a resident’s medication in his home and asserted that Ms. Bass and his ex-wife were conspiring against him. Mr. Kemp’s testimony on this point is not credited. 5 Section 464.018(1)(j) subjects LPNs to discipline for “[b]eing unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the nurse is unable to practice nursing because of the reasons stated in this paragraph, the authority to issue an order to compel a nurse to submit to a mental or physical examination by physicians designated by the department. If the nurse refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the nurse resides or does business.” of Mr. Kemp’s blood. PEth levels are used to determine if someone drinks heavily or engages in binge drinking. A “normal” or “healthy” PEth level is 20 nanograms per milliliter. Mr. Kemp’s blood contained 317 nanograms per milliliter, and that amount is 15 to 16 times what is considered to be a healthy level. Mr. Kemp’s evaluation also consisted of a two-hour assessment by Dr. Jordan Iserman6 on November 2, 2020. Dr. Iserman considered Mr. Kemp’s PEth test result to be an indication of “pretty serious heavy binge drinking.”7 Dr. Iserman also evaluated Mr. Kemp based on the criteria for severe alcohol use disorder set forth in the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (“the DSM-5”).8 If a person satisfies at least two of the 11 criteria set forth in the DSM-5, then that person is thought to suffer from severe alcohol use disorder. Dr. Iserman thought that several of the DSM-5 criteria applied to Mr. Kemp, but two seemed particularly applicable to Mr. Kemp. For example, the DSM-5 indicates that one sign of severe alcohol use disorder is that the person in question has given up important social, occupational, or recreational activities. Dr. Iserman believes that criterion applies to Mr. Kemp because he was “more than comfortable just deciding he wasn’t going back to work.” Also, rather than giving Creekside a two weeks’ notice, he just stopped coming to work. 6 Dr. Iserman is licensed to practice medicine in Florida and is a board-certified psychiatrist and addictionologist. He has been qualified to render opinions regarding addiction medicine in at least 50 other legal proceedings, and the undersigned found him to be qualified to render opinion testimony regarding addiction medicine and related disorders. 7 In addition, a test of Mr. Kemp’s hair indicated that he had been using marijuana. 8 Using the criteria set forth in the DSM-5 to diagnose severe alcohol disorder is an accepted practice in addiction medicine. The DSM-5 also identifies “tolerance” as an indicator of severe alcohol use disorder. In other words, someone with an alcohol use disorder requires markedly increased amounts of alcohol in order to achieve intoxication. Dr. Iserman believes this criterion applies to Mr. Kemp because his PEth test indicated he has a high tolerance for alcohol. As for why someone with depression, PTSD, and severe alcohol use disorder would be unable to practice nursing with reasonable skill and safety, Dr. Iserman explained that alcohol use disorder exacerbates the symptoms of PTSD: Well, actually when you talk about someone with post-traumatic stress disorder, that is a very troubling syndrome whereby the person is continuously revisited by traumatic, sometimes near-death experiences, that have transpired in the past or they had seen a loved one shot and killed in front of them, something tremendous like that. And these people have terrible problems resting, sleeping, they become emotionally numb, they don’t want to have anything to do with people. And so clearly, and many times what they will reach for first is some alcohol because that’s going to numb them up. All right? But that only makes the depression and the anxiety from the post-traumatic stress disorder worse because the hallmark symptom of alcohol withdrawal is anxiety. So you’re sort of – it’s a downward spiral here with one acting on the other, each one acting on the other, to make them both worse. As for how alcohol use disorder affects someone suffering from depression, Dr. Iserman explained that: if you’re already depressed and then you’re drinking alcohol, you’re only – you can only expect that you’re going to intensify the level of depression that you had previously. And you know, does that push a person to the point where they – they’re not in their right mind and they decide to blow their brains out or drive their car into a tree or whatever it is? Certainly could. Dr. Iserman also described how severe alcohol use disorder and depression can impact an LPN’s ability to safety administer medication to patients: Well, if you go back to, you know, how alcohol impairs a [person’s] coordination, focus, and everything like that, I mean, LPNs are passing out medications to different individuals, some of them with morphine and things like that. They could very easily make a medication error and give the wrong person someone else’s medication which could have very serious if not lethal effects on the person that they gave it to by mistake. And it clearly would impair their ability to think clearly, focus, concentrate, not to mention the physical repercussions. * * * Well, if depression is – again, if it’s controlled, then they should be able to perform their chosen profession. Okay? If it’s not, depressed people don’t have a lot of motivation, they don’t have a whole lot of – it can affect them cognitively, emotionally, physically. It will totally destroy motivation, willingness to be [sic] significantly focused in on what it is that they’re supposed to do. They don’t have the motivation. They don’t have the energy. They don’t have [the] oomp to, you know, exert that type of energy. In sum, Dr. Iserman opined that Mr. Kemp is unable to practice nursing with a reasonable degree of skill and safety. Mr. Kemp testified that he has substantially curtailed his alcohol consumption since the PEth test described above. He asserts that he stopped drinking liquor in February or March of 2021 and has since restricted his alcohol consumption to 32 ounces of beer three or four days a week. As for why he supposedly made this change, Mr. Kemp explained that: I was going through a lot, and I noticed that I was drinking a little too much. I was a caregiver for my mom. My mom had passed, my nephew had passed. So, yeah – and I was going through a divorce. So yeah, I noticed that I was drinking too heavy and I talked to some of my family members, and they told me that I need[ed] to slow it down, and that’s what I did. Mr. Kemp’s assertions that he has curtailed his alcohol consumption and restricted himself to beer did not change Dr. Iserman’s opinion that Mr. Kemp is unable to practice nursing with reasonable skill and safety: A: Well, because as I indicated before, it doesn’t really make any difference about, you know, what the source of the alcohol is. If he says all I’m drinking is beer, well, how much beer is he drinking? Okay? And, you know, I suppose you could go back and do another PEth test, but the fact remains that the behavior hasn’t changed. Okay? I mean, this is not an individual, number one, who sees himself as having a problem and so, therefore – you know, that’s the great thing about substance abuse, denial. I didn’t do that. I don’t have a problem. You know, [why] are you coming at me with this stuff? Okay? It allows them to basically continue to go ahead, you know, act out, you know, mistreat[ing] other people plus themselves, or whatever it is that they do, and basically not be bothered by it all. And if they’re in denial, they’re not going to do anything about it. Q: In your experience, do people with alcohol abuse disorder tend to minimize their reports of how much alcohol they drink? A: Oh, routinely. Q: Okay. At his deposition, Mr. Kemp stated that he drinks a quart of beer at a time three to four times a week. If Mr. Kemp’s reports are true, would your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients change? A: No. Q: Why not? A: Well, again, I would say using myself as an example, I know that if I put away a quart of beer three to four times a week, I would not be doing very well. Any by the way, there’s an unwritten rule, if you talk to somebody and you ask them how [much] they drink – now, this is not scientific, and I can’t show it to you in a book. It goes with, you know, experience with this stuff. Whatever [a] person tells you that they drink, double it and you might be at the lower end of what they’re really doing. Mr. Kemp underwent additional testing on June 15, 2021, and a second PEth test returned a result of 243 nanograms per milliliter. That result and other results (or lack thereof) from a second round of testing also had no impact on Dr. Iserman’s opinion regarding Mr. Kemp’s ability to practice nursing with reasonable skill and safety: Q: Based on Mr. Kemp’s [second] PEth test results, has your opinion that Mr. Kemp is not able to practice nursing with reasonable skill and safety to patients changed? A: No. Q: Is the PEth test result consistent with someone who drinks a quart of beer three to four times a week? A: I’m thinking he’s drinking more than that. Q: Did – you mentioned that Mr. Kemp also tested positive for an ETG test; is that correct? A: Ethyl glucuronide. And actually, when we did the original hair test, he came up positive for marijuana. Now, when we sent him back for the updated PEth test and the urinalysis, we also sent [him] back for another hair test. He arrived there freshly shaven, so there was no hair to test. However, we also have what are called nail tests. Okay? And they can sometimes trace these things back even further. Mr. Kemp refused that test. Q: Okay. And what does that indicate to you? A: Well, it would indicate that if I had nothing to hide or anything to be concerned about, you know, my fingernails will grow back. I don’t know why I would refuse that test. * * * Q: Did [Mr. Kemp] take a urinalysis on June 15, 2021 as well? A: Yes. Q: And was that positive? A: For ethyl glucuronide, yes. * * * Q: Does it show – does it tell you how – when the last time someone consumed alcohol? A: Unlike the phosphatidyl ethanol, the hair testing, the nail testing, and things like that which can go back – nails can go back sometimes almost a year, okay, but ethyl glucuronide does not hang around that long. It is probably going to be gone I would say within a week. Q: So that positive test would mean that Mr. Kemp had consumed alcohol in the last week, for instance? A: Recently. I mean, he would have to have had something recently. As for a treatment recommendation, Dr. Iserman would refer Mr. Kemp to the Interventional Project for Nurses (“IPN”), which could lead to an in-patient treatment program of at least 30 days. After completion of such a program, Dr. Iserman would recommended toxicology monitoring, peer meetings such as those in a 12-step program, psychiatric treatment, and participation in a nurses’ support group. The findings set forth above amount to clear and convincing evidence that Mr. Kemp is unable to practice nursing with reasonable skill and safety.
Conclusions For Petitioner: Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Walter Lindsey Kemp, Jr., pro se 855 Limoges Way Pensacola, Florida 32505
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: (a) finding Walter Lindsey Kemp, Jr., L.P.N. violated section 464.018(1)(j); (b) imposing a $250 fine; and (c) suspending Mr. Kemp’s licensed practical nursing license until such time that he enters into a monitoring contract with IPN and complies with any and all terms and conditions imposed by IPN.9 DONE AND ENTERED this 4th day of October, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2021. Amanda M. Godbey, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Walter Lindsey Kemp, Jr. 855 Limoges Way Pensacola, Florida 32505 Deborah McKeen, BS, CD-LPN Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Joe Baker, Jr., Executive Director Department of Health, Board of Nursing 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 9 Section 456.072(4) provides that “[i]n addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, under this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case.”
Findings Of Fact The Respondent is a licensed registered nurse in the State of Florida holding license number 1091372. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 464 related to the licensure standards for nursing in the State of Florida and the regulation and enforcement of standards of nursing practice. Pursuant to a previous disciplinary proceeding against this Respondent, a Final Order was entered by the Petitioner whereby the Respondent's nursing license number 1091372, which is the subject of this proceeding, was placed on probationary status for a period of one year from August 19, 1985. As a condition of that probation, the Respondent was required to submit to random blood and/or urine tests. Pursuant to the authority of this Order, Charles E. Wheelahan, an investigator with the Investigation Section of the Department of Professional Regulation, attempted to obtain a urine sample from the Respondent, pursuant to the previously entered Final Order, during the period June 13-27, 1986. Mr. Wheelahan first phoned the Respondent on June 13 to set up an appointment and told the Respondent the reason for the appointment. The Respondent appeared to be somewhat incoherent in her conversation by phone that day and so the investigator set up an appointment for another day. He went to her residence on June 25 and asked that she supply a urine sample. She informed him she was unable to do so at that time. He waited approximately one and one-half hours, during which time she made no attempt to furnish him with the requested sample. The following day he requested by phone that she meet him at "University Hospital" on the following day, which would be June 27, 1986. Later that day she called him and cancelled that appointment. He then offered to meet her at any other time on that day and got no cooperation from the Respondent. Thus, after giving the Respondent three opportunities to comply with the requirements of the Order by which her license was placed on probation, Mr. Wheelahan recommended and the Petitioner ultimately instituted the instant prosecution. Witness Elaine Brantley testified and established that she had transcribed the telephone conversation Mr. Wheelahan had with the Respondent on June 27, 1986. That transcript was admitted as Petitioner's Exhibit C, being a transcript of the witness' shorthand notes regarding the telephone conversation. This exhibit, as well as the testimony of Mr. Wheelahan, and the other uncontroverted evidence, establishes that the Respondent evaded and obstructed Mr. Wheelahan's attempts to obtain a urine sample as required by the Final Order which had imposed probation with that random sampling as a condition. Mr. Wheelahan advised the Respondent that her failure to cooperate in arranging to provide the sample would be reported as a refusal to comply with the terms of the probation and he so reported it. She continued her evasiveness and refusal to cooperate in arranging the provision of a urine sample to the Petitioner with this knowledge.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of counsel, it is, therefore RECOMMENDED that the Florida Board of Nursing enter a Final Order suspending the Respondent's license until such time as she appears before the Board and adequately demonstrates her ability to safely engage in the practice of nursing in the State of Florida. DONE and ORDERED this 2nd day of July 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 2nd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4770 The Petitioner's Proposed Findings of Fact have all been accepted. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Gary D. Beatty, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Delores Eckard 775 Berkley Drive Pensacola, Florida 32503 Judie Ritter, Executive Director Board of Nursing Room 504 111 East Coastline Drive Jacksonville, Florida 32201 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue to be determined is whether Respondent, Emily Randall, is guilty of violating section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed for the violations proven.
Findings Of Fact Respondent holds Florida Educator’s Certificate 701488, covering the area of school psychologist, which is valid through June 30, 2018. The Brevard County School Board (BCSB) is the entity charged with governing and administering the school district and is responsible for the supervision of the employees of the school district. The Commissioner of Education, as Petitioner in this case, is the state agency charged with the licensing and regulation of educators in the State of Florida. At all times relevant to these proceedings, Respondent was employed as an itinerant school psychologist for BCSB. Employment in an itinerant position means that Respondent was not assigned to a particular school, but rather worked at multiple worksites within the District. Respondent had an office at the north area office complex and also would report to three schools, including Coquina Elementary School (Coquina Elementary) in Titusville. BCSB employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with those involved. Dr. Maggie Balado became the coordinator of psychological services in August of 2013. As the coordinator, she became Respondent’s supervisor. At the beginning of both the 2013-2014 and the 2014-2015 school years, Dr. Balado provided to the school psychologists, including Respondent, her personal contact information and that of her assistant, Ms. Beyer, so that absences from work could be reported. On October 30, 2014, Respondent was assigned to be at Coquina Elementary in Titusville. Coquina Elementary is located approximately 40 miles from Respondent’s home, and Respondent was scheduled to be there to watch a meeting with Enas Messick, Coquina Elementary’s guidance counselor. After the meeting with Ms. Messick, Respondent had planned to evaluate a student. Due to technical difficulties unknown to Respondent, the meeting with Ms. Messick was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. She also did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. On Thursday, October 30, 2014, Respondent drove to Coquina Elementary in Titusville, Florida, at approximately 7:30 a.m. After sitting in the parking lot at Coquina Elementary for approximately an hour doing paperwork, Respondent drove home. Respondent had adequate leave available to her to be absent from work that day. Failure to report her absence from work was a violation of a reasonable directive. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent, contacted Dr. Balado regarding an evaluation for a child at Coquina Elementary. During the conversation, Dr. Rhinehardt mentioned that Respondent was not at Coquina Elementary that day. Dr. Balado then telephoned Respondent to ask where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary when she was not. Respondent reported to Dr. Balado that she was performing her duties at Coquina Elementary that day, when in fact she was at home. Dr. Balado was suspicious of this statement and directed that Respondent go into the school office and call her back on the landline at the school. Although Respondent stated that she would do so, she did not. She told Dr. Balado that she went into the school’s office as directed, but did not feel comfortable using the school’s telephone to call Dr. Balado back. Respondent did not go into the school’s office. Respondent lied to Dr. Balado when she told Dr. Balado she was at Coquina Elementary when she was not. Dr. Balado then contacted Dr. Elizabeth Thedy, the assistant superintendent for student services, and related to her the events of the day. Dr. Thedy placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, Respondent, Dr. Thedy, and Jim Hickey, director of Human Resources and Labor Relations, attended a meeting to discuss the events of October 30, 2014. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30 and that she could prove it. She indicated that Ms. Messick would verify that she had been at Coquina Elementary. Ms. Messick did not see Respondent at Coquina Elementary on October 30, 2014, but did corroborate that Respondent had telephoned her to advise that she would not be at the school. Respondent later stated that she sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014. Mr. Hickey asked Respondent to provide a written statement setting forth the events of October 30, 2014. At that point, Respondent admitted that she had not stayed at Coquina Elementary all day as she previously stated. Following Respondent’s admission and Mr. Hickey’s further consideration of her behavior, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. Dr. Balado, Respondent’s supervisor, recommended termination for Respondent, because she felt she could no longer trust Respondent to be truthful with respect to either her whereabouts or her work product. Because of her status as an itinerant employee, Dr. Balado needed to be able to trust that she was where she was supposed to be and performing her assigned tasks, which are often time-sensitive. Dr. Balado no longer trusted Respondent. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the school district. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding her performance and behavior. In anticipation of the November 21, 2014, meeting, BCSB staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze on her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as BCSB staff hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of these terms. Respondent, on the other hand, believed that BCSB staff would be informing her that she was being terminated. There was no documentation provided to Respondent that would have indicated to her that termination was the only solution. Nor was there anything provided to Respondent that would have alerted her to the solution staff planned to propose. On the morning of November 21, 2014, Respondent drank two to three glasses of wine before leaving her home to attend the meeting. She then went to the meeting with Mr. Hickey, Dr. Thedy, and Dr. Balado. She was accompanied by her husband and her attorney. Respondent was very emotional during the meeting. She cried and at times appeared to be angry. She asked to be excused within minutes of the beginning of the meeting, and then returned. Meeting participants also described her as being disheveled, having flushed skin and red and watery eyes, and shaking hands. Most importantly, Mr. Hickey, Dr. Thedy, and Dr. Balado all believed that Respondent was emitting the strong odor of alcohol, giving them reasonable cause to believe that she was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. Respondent submitted to a breathalyzer examination conducted by Kathy Krell, the Drug and Alcohol Program Administrator for the school district, after being directed to do so. There was no evidence presented to indicate that she objected to taking the test or to the manner in which it was administered.1/ Her attorney was present at the time she was asked to submit to the test. Ms. Krell, who is now retired, had conducted breathalyzer tests for the school district for over 20 years. She was certified by Intoxicators, the company that produces the breathalyzer machine used by the school district, to administer the breathalyzer test. The test was performed in accordance with her standard procedure and was completed in the regular course of business for BCSB, and included the statement signed by Respondent that “I certify that I have submitted to the alcohol test, the results of which are accurately recorded on this form. I understand that I must not drive, perform safety-sensitive duties, or operate heavy equipment because the results are positive.” Respondent also admitted in her letter to the Office of Professional Practice (Petitioner’s Exhibit 32) that “the results confirmed I was under the influence.” The results of the breathalyzer test indicate that, as of approximately 2:45 p.m. on November 21, 2014, Respondent’s alcohol level as measured by the breathalyzer test was .104. Based upon Respondent’s appearance, behavior, and blood test results from the breathalyzer test administered immediately after the meeting, Respondent was under the influence of alcohol at the time she met with Dr. Balado, Dr. Thedy, and Mr. Hickey. Upon receiving the results of the breathalyzer test, BCSB withdrew the disciplinary offer it had presented to Respondent. BCSB staff testified that when someone is on administrative leave, they should be prepared to report to work at any time, and be prepared to adhere to the behavioral standards required in the workplace: in other words, to comply with the zero-tolerance policy observed by the school district in terms of drug and alcohol use while on duty. The letter placing Ms. Randall on administrative leave did not state and Dr. Thedy, who wrote the letter, acknowledged that Respondent was not advised to be prepared to work while on administrative leave. The letter simply instructed Respondent “not to be on school board property while on administrative leave.” While the notice provided to Respondent placing her on administrative leave did not expressly state that she should not drink before attending her pre-termination meeting, it is inconceivable that she would think that to do so was appropriate. Moreover, BCSB’s Drug-Free Workplace Technical Guide states in pertinent part: Alcohol, prescription, and over-the-counter drugs are generally safe and acceptable when used according to proper instruction. Abuse of legal drugs over time or used in combination with another substance can result in chemical dependency or poly-drug addiction. Employees will be free of alcoholic or drug intoxication when on duty or on Board property. Employees are prohibited from the manufacture or use of alcoholic beverages while on Board property or while on duty with the Board. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to the school district’s employment assistance program (EAP). The EAP is available to employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges his or her issue, participates, and agrees to seek help for his or her problem, the employer typically works to return the employee to the work environment. That did not happen here. On November 22, 2014, the day after the meeting to discuss her employment, Respondent was arrested in Seminole County, Florida, for driving under the influence, with a blood alcohol level of .15 or higher, in violation of section 316.193, Florida Statutes. On December 16, 2014, Respondent entered a plea of nolo contendere in State of Florida v. Emily Martin Randall, Case No. 592014MM010473AXXXXX (18th Jud. Cir., in and for Seminole Cnty.) to the amended charge of driving under the influence with a blood alcohol level of below .15, a misdemeanor. The trial court accepted the plea, found a factual basis for the plea, and adjudicated her guilty of the amended charge. Dr. Binggeli recommended that BCSB terminate Respondent’s employment on December 9, 2014. At hearing, Respondent testified that on the evening of October 29, 2014, her adult son was arrested. Respondent believed that the arrest was indicative of a more serious, long- standing issue that her son battled. The news of her son’s arrest devastated her, and she did not sleep because of her emotional turmoil. She has, since the events described above, participated in the EAP and sought independent counseling to deal with the emotional issues present in her personal life. The news that Respondent received about her son was troubling, and it is understandable that she would be upset by this development. It does not, however, justify her failure to simply report to her supervisor that she would not be attending work on October 30, 2014. It was undisputed that she had adequate leave to cover the absence. Under no circumstances does her emotional state justify her repeated fabrications regarding her whereabouts when given numerous opportunities to tell the truth. Respondent was terminated by BCSB on or about December 16, 2014. She is not currently working in the education field, but is instead performing administrative tasks in her son’s landscaping business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent’s certificate for a period of 18 months; that it require Respondent to participate in the Network Recovery Program; that after the completion of her suspension, she be placed on probation for two employment years, subject to terms and conditions imposed by the Education Practices Commission; and impose an administrative fine of $1,000. DONE AND ENTERED this 28th day of March, 2017, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2017.
