Findings Of Fact 1. Respondent, is a licensed mental health counselor, holding license number 0000187. Originally he was licensed pursuant to Chapter 490, Florida Statutes, since the inception of that Chapter about six years ago. However, in 1987, the Respondent became licensed pursuant to Chapter 491, Florida Statutes, when the legislature transferred mental health counselors' licenses to Chapter 491. Chapter 87-252, Laws of Florida. He has been a mental health counselor for at least twelve years, nine of which have been in Florida and three in another state. Respondent received his Masters degree in mental health counselling from Catholic Services University. He received his Doctorate in Psychology from Florida State University. During his education, Dr. Moser specialized in hypnotherapy. He has conducted intensive research on hypnotherapy and has published a book, Case Studies in Hypnotherapy, on the subject. Dr. Moser had counselled at Catholic High School for six years and presently counsels on a volunteer basis at St. Joseph's Community Center in Pensacola. Additionally, he has taught both counseling and hypnotherapy at the University of West Florida in Pensacola. Suffice it to say that Dr. Moser's qualifications regarding his profession and in particular, his qualifications in hypnotherapy, are impressive. The complainant in this case is J. D. J. D. became a patient of Dr. Moser in July 1986. One of her friends whose father was a medical doctor and who would occasionally refer patients to Dr. Moser gave her Dr. Moser's name. Dr. Moser, however, was contacted directly by the friend's father, Dr. Bolthrop. Dr. Bolthrop requested that Dr. Moser see J. D. in order to help her with her mental problems. Initially, J. D. was being treated by Dr. Moser for low self-esteem and marital problems. However, at about the twentieth session, it became apparent to Dr. Moser that J. D. was a very troubled girl due to the fact that she had been seriously sexually abused as a child and had been involved in a relationship with a married man whose child she later had to abort when he abandoned her. J. D. was somewhat depressed and very distrustful of men in general since she had been treated so badly by them. Testing of J. D. revealed that her utmost desire was to be loved. During Dr. Moser's treatment of her, J. D. was 30 to 40 pounds heavier than she was at the hearing. During her treatment she wore very drab and unflattering clothes. She was not a physically attractive human being. She generally did not look like she felt very well or felt very good about herself. There were 28 sessions in all. The first few sessions were history gathering sessions. Additionally, different psychotherapeutical approaches were also tried out. The eighth session, on September 8, 1986, was the first hypnotic session. There were nine separate hypnotic sessions with J. D. The hypnotic sessions alternated with other non-hypnotic sessions. November 24, 1986, was not a hypnotic session and would not have been a hypnotic session by the alternating process. The non-hypnotic sessions involved discussion of the previous hypnotic session and general counseling. Another treatment employed with J. D. by Dr. Moser was the treatment utilizing written expression of feelings by the patient J. D. to Dr. Moser. These letters were later destroyed by J. D. after her falling out with Dr. Moser. Hypnotherapy constituted less than one third of the total treatment of J. D. As indicated earlier, J. D.'s treatment began by uncovering the less troubling aspects of her problems and progressed over time until the more deep seated sexual problems started being uncovered. It was prior to the twentieth session when Dr. Moser finally received a letter from J. D. detailing the sexual abuse and wrecked affair of her life. Curiously, the twentieth session was the session immediately following the session at which she claims (November 24, 1986) Dr. Moser utilized improper sexual conduct toward her. J. D.'s testimony was the only evidence offered to demonstrate that Dr. Moser had made improper sexual advances toward her. She related that during the November 24, 1986, session, Dr. Moser placed her under hypnosis and took her in her mind to the beach where he asked her to lie down beside him on the sand (floor). He said that he would put some suntan oil on her and she consented. He pretended to rub the oil on her over her clothes and in the process rubbed her clothing over her stomach and breast area. He then kissed her to show that he loved her. Dr. Moser then got off the floor and terminated the hypnosis. J. D. claimed he would not have eye contact with her. However, she admitted he had helped her off the floor and was sitting in his chair with his appointment book on his lap, scheduling her next appointment. Dr. Moser completely denies the story testified to by J. D. At the end of the November 24 session, Dr. Moser mentioned that J. D. did not need to see him every week anymore and wanted to go to a biweekly schedule. He also told her that he would be leaving on vacation for the next few weeks and would not be able to see her. Up through the controverted session, J. D. had been responding well to therapy. She was generally beginning to feel better about herself. Suddenly, however, after the November 24 session, J. D. attempted suicide and ended up in the hospital. Dr. Moser saw her at the hospital. She was very angry and wanted to know if he was in love with her. He told her no. She then began demanding to know why he had left her. She also accused him of not detecting her suicide attempt and blamed him for her actions. She told him she didn't want to see him again. On December 17, 1986, J. D. called Dr. Moser for an appointment. She saw Dr. Moser at Catholic Social Services and gave him a large glass Madonna and then accused him of kissing her in a trance. The next day, she came back and again accused him of kissing her. Dr. Moser testified that during the appointment he denied the accusation. J. D. testified that during the appointment he admitted the accusation. Dr. Perello, J. D.'s then psychologist, corroborates Dr. Moser's denial. J. D. obtained another appointment on January 25, 1987. She again accused him of kissing her. Upon the third accusation, Dr. Moser terminated the relationship on January 23, 1987. He gave J. D. her file which contained all the letters she had written to Dr. Moser. J. D. grew angry and threatened to get even. J. D. then tore up the letters except for the note and poem introduced into evidence which had accidentally remained in Respondent's possession. In February 1987, J. D. attempted suicide again and again ended up in the hospital. J. D.'s testimony regarding the events of November 24, is not credible for a number of reasons. Primary among those reasons is that the mental difficulty she was seeking help from Dr. Moser on can precipitate the type of fantasizing she has engaged in and testified to at the hearing. Such a dependent person as J. D. is particularly vulnerable to resisting the eventual termination of therapy and harbors very strong and confused feelings toward the therapist. The therapist is the one person to whom a patient such as J. D. has revealed her private self to in a way most people never reveal. The patient is very dependently vulnerable and scared and often substitutes the therapist for the people in the patient's prior life who have filled significant roles, both good and bad (e.g. parents, rejected lovers, etc.) The patient is not aware of these feelings. This is especially true when the patient's highest priority is to be loved, nurtured and cared for, and the patient's number one fear is to be rejected and abused. The opposing emotional forces can result in a very strong and angry reaction to any perceived termination of the therapy. Moreover, the ability to fantasize the details of J. D.'s story was enhanced because she has the ability to practice self-hypnosis, as well as undergoing hypnotherapy. Hypnosis more rapidly and more deeply focuses a patient's feelings and conflicts than any other therapy. In this case, J. D. transferred her desire to have a love relationship with a man to Dr. Moser and then fantasized the details. The fantasy became a psychic reality to her. When that love was in reality rejected by perceived termination, the result was unmitigated, revengeful anger. The repeated pattern of termination suicide corroborates this point. Moreover, J. D. was not always consistent in the details of her story. Charles E. Wheelaham, the DPR investigator in this case, testified that J. D. told him that Dr. Moser had not given her letters back. Likewise, she failed to tell him she had been hospitalized for her suicide attempt. More importantly, she told him that two sexual events had occurred with the first occurring when Dr. Moser had rubbed her breasts the week prior to September 24, 1986. However, J. D. affirmatively denied the occurrence of two events and she testified that only one event had occurred and not the two she told the investigator about. J.D.'s testimony alone simply is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: That the complaint against Respondent be dismissed. DONE and ORDERED this 22nd day of July, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of July, 1988.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant 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; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
Findings Of Fact On or about September 22, 1994, Byron Charles Todaro (Petitioner) filed an application for licensure as a massage therapist by examination with the Department of Business and Professional Regulation, Board of Massage (Respondent). On the application, Petitioner responded "yes" to the question that asked, in pertinent part, if he had "ever been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction", excluding parking and speeding tickets, with a plea of nolo contendere being considered a conviction. On or about September 7, 1982, Petitioner pled guilty to possession of a controlled substance (methaqualone) in the Circuit Court of Orange County, Florida. The court withheld adjudication and imposed a fine. Also, in 1982, Petitioner pled guilty to driving under the influence/unlawful blood alcohol level and careless driving. On or about May 22, 1987, in the Circuit Court of Broward County, Florida, Petitioner pled guilty to driving while his license was suspended. The court adjudged him guilty and, among other things, placed Petitioner on one (1) year probation and ordered him to participate in and successfully complete a drug evaluation and rehabilitation program. On or about March 3, 1988, the court vacated the adjudication and adjudication was withheld. On or about May 26, 1989, Petitioner pled guilty to a four-count criminal offense in the Circuit Court of Broward County, Florida: Count I - possession of cocaine; Count II - possession of a controlled substance; Count III - possession of drug paraphernalia; and Count IV - possession of cannabis. As to Counts I and II, the court withheld adjudication and, among other things, imposed a 3-year probation and drug evaluation and treatment. As to Counts III and IV, the court, among other things, adjudicated Petitioner guilty. On or about November 25, 1992, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a five-count criminal offense: Count I - possession of a controlled substance (diazepam); Count II - possession of cannabis; Count III - possession of drug paraphernalia; Count IV - fleeing a police officer; and Count V - reckless driving. Regarding Counts I, II, and IV, the court, among other things, withheld adjudication and imposed a five (5) year and one (1) year drug offender probation (running concurrently). Regarding Counts III and V, the court, among other things, adjudicated Petitioner guilty. Furthermore, the court ordered an evaluation and random urinalysis. Less than one (1) year later, on or about July 20, 1993, in the Circuit Court of Broward County, Florida, Petitioner pled nolo contendere to a two-count criminal offense: Count I - possession of cocaine with intent to deliver; and Count II - possession of a controlled substance. The court, among other things, withheld adjudication, placed Petitioner on 4 1/2 years of probation, and ordered Petitioner to attend and complete Concept House, followed by Broward Alcohol Recovery Center (BARC) and random urinalysis. The Concept House provides an inpatient drug rehabilitation program. Petitioner had voluntarily begun treatment at the Concept House in June 1993 and the court made it a mandatory part of his probation. Petitioner attended Concept House for six months. For the first three months, Petitioner had to remain at the Concept House, and for the last three months, he was allowed to leave only to seek employment or receive training but returned to the Concept House in the evenings. In December, 1993, Petitioner successfully completed the program at the Concept House. During his treatment at the Concept House, Petitioner was consistently tested by the Concept House, and no test was positive. BARC is an outpatient alcohol abuse program. Petitioner is currently attending BARC. Petitioner's probation officer supervises his treatment at BARC. Petitioner receives weekly drug testing at BARC. No test has been positive. In addition to the weekly testing at BARC, Petitioner receives a monthly urinalysis as part of his probation. No test has been positive. Petitioner received vocational rehabilitation training through the Concept House, and through this training, it was determined that massage therapy was a field which he could pursue. The Concept House funded Petitioner's schooling for massage therapy. On or about January 11, 1994, Petitioner entered the therapeutic massage training program at the Florida Institute. He successfully completed the program on or about June 14, 1994, with a scholastic average of 91.55 percent, using a grading scale of 100 percent. Petitioner's probation officer assisted him in getting admitted to the Florida Institute. Petitioner's drug cases involve personal use and consumption, not the sale or trafficking of drugs or conspiracy to sell or traffic in drugs. Petitioner has been drug free for almost 2 years. Petitioner's current probation is scheduled to end in 1998. He has applied to the court for early termination. Petitioner presented letters of recommendation from his probation officer who has contact with Petitioner on at least a monthly basis regarding his drug abuse and from his vocational rehabilitation counselor employed with the Florida Department of Labor and Employment Security. The practice of massage involves a great degree of trust between the client and the practitioner. For a massage, a client disrobes to a point of comfort for the client, and in certain instances completely disrobes, and, therefore, a client must feel that he/she can trust the practitioner. The trust is both physical and psychological. Accompanying the trust is a high level of responsibility for the massage therapist who must guard and protect that trust. An applicant for licensure must demonstrate that he/she possesses that level of responsibility necessary to practice massage. Massage is a part of health care, being placed under the responsibility of the Division of Medical Quality Assurance of the Department of Business and Professional Regulation. A substantial number of massage therapists (25 percent to 30 percent) are employed in medical areas such as physical therapy centers, hospitals and doctor's offices. Petitioner has no desire to work in a medical area and has been offered a position in a health spa upon licensure by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage enter a final order DENYING Byron Charles Todaro licensure as a massage therapist by examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of September 1995. ERROL H. POWELL 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 29th day of September 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner 1. Rejected as being unnecessary as a finding of fact since no issue of standing exists. 2-4. Rejected as being unnecessary as a finding of fact. Rejected as being unnecessary, or argument. a. Partially accepted in finding of fact 5. b. Partially accepted in finding of fact 6. c-f. Rejected as being argument, or conclusions of law. Rejected as being contrary to the evidence. Petitioner admitted that he was currently on probation. Partially accepted in finding of fact 17. i-j. Partially accepted in finding of fact 16. k-l. Rejected as being argument, or conclusion of law. m-n. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in findings of fact 6 and 7. Partially accepted in finding of fact 7. Partially accepted in findings of fact 6, 8, 9, 15 and 16. Rejected as being argument, or conclusion of law. See Preliminary Statement Partially accepted in finding of fact 16. Partially accepted in findings of fact 10 and 11. Rejected as being unnecessary. Partially accepted in finding of fact 20. Partially accepted in findings of fact 7, 8, 9 and 14. Respondent 1. Partially accepted in finding of fact 1. 2 and 3. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Rejected as being unnecessary, or irrelevant. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 15. Rejected as being argument, or conclusion of law. a. Rejected as being argument, or conclusion of law. Partially accepted in finding of fact 19. Partially accepted in finding of fact 17. Rejected as being argument, or conclusion of law. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or conclusion of law. COPIES FURNISHED: Ms. Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 N. Monroe Street Tallahassee, Florida 32399-0062 Roger S. Elkind, Esquire 2903 Salzedo Street, Suite 100 Coral Gables, Florida 33134-6618 Lee Ann Gustafson M. Catherine Lannon Assisant Attorneys General Administrative Law The Capitol, PL-01 Tallahassee, Florida 32399-1050
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.
Findings Of Fact Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2 Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was intoxicated, and Respondent voluntarily reported his alcohol- related problem. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after 17 days and could not afford the daily rate of $833 to complete the remaining 11 days. Respondent returned to duty sometime between January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous. DONE AND ENTERED this 23rd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2007.
Findings Of Fact Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.
The Issue The issues are whether the Respondent should be prohibited or restricted from practicing as a licensed registered nurse and as a licensed massage therapist, or be otherwise disciplined, for allegedly being unable to practice nursing and massage therapy with reasonable skill and safety 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 violation of sections 464.018(1)(j) and 480.046(1)(h), Florida Statutes (2016).1/
Findings Of Fact The Respondent is a Florida licensed registered nurse (RN 9295784) and licensed massage therapist (MA 46128). She has been working as an RN in Florida since 2009. Neither her nursing nor her massage therapist license had been disciplined before the charges filed in this case. In January 2016, the Respondent was working three 12- hour night shifts as a nurse in a hospital that admitted mentally ill patients. After being assaulted by a violent patient, she decided to change specialties. In May 2016, the Respondent applied for a job at Moffitt Cancer Center in Tampa. Moffitt made an offer, contingent on passing a health screening, which included a drug screening. During the screening on May 10, the Respondent appeared to be drowsy, which seemed odd and suspicious to the Moffitt staff who conducted the health screening. The Respondent’s urine sample was corrupted, and she returned two days later to provide another sample. The second sample tested positive for butalbital, oxazepam, morphine, codeine, temazepam, and alprazolam. The Respondent had prescriptions for all these drugs, but the one for butalbital was not current. Butalbital is a Schedule III controlled substance under section 893.03(3), Florida Statutes, and is found in Fiorinal and Fioricet, which are prescribed to treat migraine headaches. As a result of the pre-employment screening, Moffitt would not clear the Respondent to work there. The Respondent testified that she appeared to be drowsy at the time of the Moffitt pre-employment screening because she was tired from working three consecutive 12-hour night shifts at Hospital Corporation of America’s West Pasco Hospital in Trinity. In addition to working at the hospital, she was acting as a union delegate, plus going to school full-time to earn a bachelor’s degree in nursing, and she was up late studying the night before her screening at Moffitt. The Respondent denied abusing or misusing her prescriptions and explained that she was taking the out-of-date prescription to save money on a prescription she used infrequently, as needed, for migraines. In July 2016, the Respondent was recruited for a nursing job at Bayshore Health System’s St. Joseph’s Hospital in Tampa. She was hired and participated in a pre-employment screening there. Her drug screening tests were negative, and she was cleared to begin work starting on July 18. At St. Joseph’s, the Respondent passed her skills tests and worked three 12-hour shifts a week from 7:00 p.m. to 7:00 a.m. She took her new job seriously. Since she previously worked on a mental health unit, she was first assigned work with a preceptor in the neurological stroke unit to refresh general nursing skills. In September 2016, the Respondent received a letter from Moffitt saying that “recent events” had come to Moffitt’s attention that could constitute a violation of the Nurse Practice Act and advising that Moffitt would have to report the Respondent to DOH and the Board of Nursing if she did not consult with the Intervention Project for Nurses (IPN), within two days, as an alternative to disciplinary action for nurses who are in violation because of the use drugs or alcohol, or because of physical or psychological impairment. The Respondent did not think she was in violation and declined to consult IPN. Moffitt filed a complaint with DOH, which began the process of compelling the Respondent to be evaluated by an expert in addiction medicine. In October 2016, the Respondent’s supervisor, Laura Robidoux, talked to her because she thought the Respondent failed to recognize a patient’s subnormal temperature as a sign of sepsis. Seventeen hours after the Respondent’s shift ended, the patient went into medical distress, and the hospital staff recognized sepsis as the cause. Although several other nurses and doctors were involved in the patient’s care both during and after the Respondent’s shift, the Respondent was counseled about it. St. Joseph’s terminated the Respondent from her employment in early December 2016. The Respondent’s supervisor believed the Respondent missed a shift on Saturday, December 3, because of excessive drinking. Actually, the Respondent reasonably believed that she was not scheduled to work the shift in question. She already had satisfied her 36 hours of work that week, between actual work and paid time off; she was not expecting to have to work a fourth shift on Saturday; and she was unaware that she had been scheduled to work. The Respondent had dinner and a glass of wine with her mother, who resided with her. After dinner, she took a shower. At about 6:30 p.m., the unit secretary at St. Joseph’s called to say the Respondent was supposed to be at work. Her mother took the message and relayed it to the Respondent, who immediately called back to explain that she did not think she was scheduled to work and did not think she should go to work because she just had a glass of wine with dinner. The Respondent’s supervisor received a “zone report” on the supposed missed shift on Monday, December 5. She was very upset with the Respondent and did not accept her explanation of what happened. She informed the Respondent that, as a probationary employee, she was going to be terminated from her employment. The Respondent chose to resign instead. On the form used by Nurse Robidoux to document the reasons for terminating the Respondent, she added that the Respondent did not get the flu shot that was required by December 1, 2016. That ground for termination was false. Actually, as the Respondent tried to explain to her supervisor, she got her flu shot at CVS on November 28. Although the Respondent had proof, her supervisor maintained the alleged flu shot failure as a ground for termination. The termination documentation did not mention the incident in October regarding the patient with sepsis. It also did not mention any other grounds for termination. In her deposition on July 31, 2017, Nurse Robidoux talked about another supposed patient care issue, which she thought was a medication error, but she was not sure and was unable to recall any details. There was no evidence of any other patient care or attendance issues during the Respondent’s employment at St. Joseph Hospital. There was no evidence of any other incidents that could raise any concern that the Respondent was impaired in any way while working as a nurse at St. Joseph’s Hospital. The addiction medicine expert retained by DOH to evaluate the Respondent was Dr. Lawrence Wilson. Dr. Wilson was a urologist until substance abuse impaired his ability to practice medicine, and he entered the Professional Resource Network (PRN) program. Instead of remaining in urology after successful completion of the program, he decided to pursue addiction medicine. He completed a two-year fellowship in addiction medicine at the Drug Abuse Comprehensive Coordinating Office (DACCO) at the University of Florida in Tampa from 2010 to 2012 and is board-certified in the field. After his fellowship, he went to work at DACCO in Tampa and eventually became its associate medical director. He also serves as medical director at a private treatment facility in Tampa called Seven Summit Pathways, which is a residential and outpatient medication- assisted treatment facility. He also is a certified medical review officer, meaning he is qualified to determine whether there are legal and valid reasons for substances detected by laboratories testing samples from a drug screening program. Coincidentally, Dr. Wilson arranged to examine and interview the Respondent on December 14, 2016, shortly after her termination by St. Joseph’s Hospital. His evaluation was based on the examination and interview, the reports on three drug tests he had done on the Respondent, the report from Moffitt, and a telephone interview with Laura Robidoux. Dr. Wilson understood from Nurse Robidoux that the Respondent had “major performance issues” involving her failure to “pick up on clinical symptoms of her patients.” In fact, only one patient was involved. The Respondent was in the process of been retrained under the supervision of a preceptor at the time, and it was not clear from the evidence who was responsible for not recognizing the patient’s symptoms. Dr. Wilson also understood from Nurse Robidoux that the Respondent missed her shift on December 3 “because she had been drinking with friends” and “didn’t call that she was not coming to work and then didn’t show up [a]nd called, ‘after the fact’ – according to Ms. Robidoux – after her shift already started.” His understanding was incorrect. The Respondent’s explanation of what actually happened is accepted. The Moffitt drug screen was positive for several drugs. The Respondent had valid prescriptions for all of them except butalbital, which is a barbiturate and a Schedule III controlled substance under section 893.03(3). It can lead to moderate or low physical dependence or high psychological dependence. The Respondent’s primary care physician had prescribed Fiorinal, which contains butalbital and codeine, to treat the Respondent’s migraine headaches, which is a common use for it. However, the prescription was five years out-of-date. The Respondent conceded to Dr. Wilson that she should have asked her doctor to update the prescription, but she tried to explain that she did not use the prescription much and was trying to save money. The Moffitt drug screen also was positive for five other drugs, or their metabolites, for which the Respondent had valid, current prescriptions. These included alaprazam (generic for Xanax) and temazepam (generic for Restoril). In her interview on December 14, the Respondent told Dr. Wilson she was taking: Lisinopril; Zyrtac (an antihistamine used for allergies); Tylenol with codeine; Fiorinal; metoprolol (a beta blocker for blood pressure); Zofran (an antiemetic for nausea); Protonix (for gastroesophageal reflux); Ativan (generic for lorazepam, a long-acting benzodiazepine sedative); and Vistaril (a sedating antihistamine, typically used for anxiety). The Respondent told Dr. Wilson that she was “on and off” Xanax, a short-acting (two to four hours) benzodiazepine, for 20 years. She had been using it on an almost nightly basis for approximately five years, but stopped using it in approximately June 2016. She decided to stop taking it because she had to increase its dose to achieve the desired therapeutic effect (as her body habituated to the drug, and her tolerance for it increased). She had some withdrawal symptoms when she stopped taking it, including feeling sick, having trouble sleeping, and getting tremors or shakes for about three days. Dr. Wilson opined that the Respondent had become dependent on benzodiazepines. At some point in the year or so before Dr. Wilson evaluated her, the Respondent went to a second physician, who prescribed Restoril, a medium-acting benzodiazepine (temazepam). She was taking Restoril, 30 milligrams, “on and off” for about a year. Before she stopped the Xanax, there were times when the Respondent would take both Xanax and Restoril (which would explain the positive results from the Moffitt drug screening). It was a concern to Dr. Wilson that the Respondent might have been taking Xanax and Restoril together because they would have a synergistic effect and produce a higher level of sedation. The concurrent use of multiple benzodiazepines can cause cognitive impairment, including slow reactions and difficulty with problem-solving, which are critical to the practice of nursing and, to some lesser extent, massage therapy. However, the evidence was not clear and convincing that the Respondent used multiple benzodiazepines concurrently or that she ever was impaired when practicing nursing or massage therapy. As part of his evaluation on December 14, Dr. Wilson had the Respondent submit to a hair test and a urine test. A hair test typically records two to three months of substance or medication ingestion. A positive hair test indicates multiple, repeated uses of a substance or medication (at least four to five uses) over a two or three week period. A one-time use would not show up on a hair test. The Respondent’s hair test was positive for butalbital, codeine, hydrocodone (a metabolite of codeine), and Tramadol. The Respondent had valid prescriptions for the Fiorinal, which would explain the positive results for butalbital and codeine. Hydrocodone is a metabolite of codeine, which probably explains its presence along with codeine. The Respondent also had a prescription for Tylenol with codeine, which she was taking approximately three to five days a month for various musculoskeletal aches and pains in her hips, back and knees, and for premenstrual discomfort. The prescription was for one pill twice a day, but the Respondent admitted she would use between three and four tablets a day, which concerned Dr. Wilson. In general, Dr. Wilson was concerned with the Respondent taking opiates and benzodiazepines together. Both cause significant depression or slowing of the central nervous system, and using them together can lead to cognitive impairments, including slow thought processes; and taking too much could cause the Respondent to fall asleep or pass out, which obviously would affect her ability to practice nursing and massage therapy with reasonable skill and safety. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the concurrent use of these two drugs. The positive result for Tramadol was very significant to Dr. Wilson because the Respondent did not mention it or produce a prescription for it during her interview, and the test showed a high level, which correlated to a significant use. Tramadol is a “non-opiate opiate,” meaning it mimics the effect of an opiate but is not made from opium poppy seed and has a different chemical structure. It is a strong analgesic used for pain management and, depending on the dose, can cause significant central nervous system depression. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the use of Tramadol, alone or in combination with any other drug. Dr. Wilson did not think it likely that the Respondent had a plausible reason for not mentioning the Tramadol, and he believed she was trying to hide it from him. The Respondent’s explanation was that she had been taking it for menstrual cramps for about three months instead of Tylenol with codeine because it gave her enough pain relief without promoting menstrual bleeding; that it allowed her to remain clear-headed; and that she did not consider it to be an opiate or non-opiate opiate. Similar to the Xanax detected by the Moffitt pre-employment screening, the Respondent was using what remained from an out-of-date prescription. During the interview on December 14, Dr. Wilson asked the Respondent about alcohol. She told him that she would drink weekly during college, about three to five drinks, until becoming fairly intoxicated; that she drank socially in her thirties, about twice a week, between three and five ounces; and that her drinking decreased during her thirties and forties; and that she currently drinks one or two alcoholic beverages about four to five times a year. She said her most recent drinks were a large Bailey’s after dinner two days before the interview, and a large drink about ten days before that. As part of her examination by Dr. Wilson on December 14, the Respondent submitted to a phosphatidyl ethanol (PEth) blood spot test. This test measures ethanol in the blood stream and is used to detect heavy, frequent use of alcohol and/or binge drinking on less request occasions, as opposed to social drinking. The standard cut-off of the PEth test is set at 20 nanograms per milliliter (ng/ml), which requires, at a minimum, approximately seven to eight ounces of alcohol in a week. The Respondent’s PEth test was positive at 63 ng/ml, which was inconsistent with what she reported to Dr. Wilson. Dr. Wilson diagnosed the Respondent with alcohol use disorder of mild to moderate severity because he thought she used alcohol in larger amounts over a longer period of time than intended; her alcohol use resulted in a failure to fulfil a major obligation at work; and there was recurrent alcohol use in situations in which it was hazardous. He opined that her alcohol use put her at risk for being unable to practice with reasonable skill and safety to patients. During the interview on December 14, Dr. Wilson also asked the Respondent about cannabis use. She told him she used it a lot during high school, decreased its use in her twenties to episodic, and that she had not used it in four years. Dr. Wilson conceded that it did not seem to be an issue anymore and was insignificant, but he still diagnosed cannabis use disorder, moderate severity, in remission, based on her use of large amounts over a long period of time (in high school) and a general presumption that she spent “a great deal of time . . . in activities under the influence or to use or obtain, or recover from its effects.” After completing the evaluation of the Respondent, Dr. Wilson diagnosed: opioid use disorder, moderate severity; sedative/hypnotic use disorder, moderate severity; cannabis use disorder, moderate severity, in remission; alcohol use disorder, mild to moderate severity; chronic pain syndrome related to degenerative joint disease and chronic migraine headaches; hypertension; anxiety disorder, NOS; and chronic insomnia, NOS. Dr. Wilson opined that the Respondent was unable to continue her practice of nursing with the required skill and safety due to untreated substance use disorders and risk of impairment. He recommended that she enter treatment for substance abuse disorders, at a partial hospitalization level, at an IPN-approved treatment facility (which happens to be the kind of care provided for $5,000 a month at the substance abuse treatment facility operated by him in Tampa), and that she be monitored by IPN after completion of treatment. The Respondent disagreed, did not think referral to IPN was necessary, and declined IPN. Based on Dr. Wilson’s opinion and recommendation, DOH filed charges that the Respondent was unable to practice nursing or massage therapy with reasonable skill and safety 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 violation of sections 464.018(1)(j) and 480.046(1)(h). Emergency orders were entered restricting her practice of those professions pending disposition of the charges. At the hearing, Dr. Wilson testified in support of his opinions. However, his ultimate opinions on whether the Respondent was “safe to practice nursing or massage therapy” were based on “suspicions” and the “possibility” or “risk” of impairment. In addition, they were based in part on factual assumptions that were not proven by clear and convincing evidence at the hearing. The Respondent called her own expert, Dr. James Edgar, to dispute Dr. Wilson’s opinions. Dr. Edgar is a board-certified psychiatrist. He is not board-certified in addiction medicine or addiction psychiatry; does not complete continuing education or self-study related to substance use disorders; and does not hold the kinds of certifications Dr. Wilson has. However, he has performed evaluations of licensed health care providers for PRN and IPN, which are Florida’s programs for impaired physicians and nurses, and for private attorneys who represented licensees, for over 42 years. Dr. Edgar based his opinion on a review of Dr. Wilson’s work, an interview of the Respondent, and psychological testing using the Minnesota Multiphasic Personality Inventory (MMPI-2), which is considered the “Gold Standard.” He accepted the Respondent’s explanations of her sleepiness during the Moffitt pre-employment screening interview and her use of her prescription drugs. As a result, he questioned some of the factual basis for Dr. Wilson’s opinions. He did not concur with Dr. Wilson that taking Xanax and Restoril (“an anti-anxiety medication and sleeping medication”) at the same time was necessarily dangerous, depending on the dose (which Dr. Wilson did not know), the patient’s age, the patient’s weight, and other factors. Dr. Edgar did not concur with any of Dr. Wilson’s Axis I diagnoses (opioid use disorder, sedative/hypnotic use disorder, cannabis use disorder, or alcohol use disorder). He also did not think the Respondent had an Axis II personality disorder. He agreed with Dr. Wilson that the Respondent has Axis III medical illnesses and conditions and Axis IV stressors that made her level of anxiety and irritation understandable. On Axis V, Dr. Edgar rated the Respondent at a “global assessment of functioning” (GAF) of 85. Dr. Edgar explained that a GAF of 90 represents: Absent or minimal symptoms (e.g. mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasionally argument with family members). A GAF of 80 represents: If symptoms are present, they are transient and expectable reactions to psychological stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Dr. Edgar explained that he does not think the Respondent has opioid use disorder because: (a) all opioids she took were prescribed by her doctor; (b) there is no indication that she has increased the use of these medications; and (c) there is no indication that the use of these medications has impaired her ability to function as a nurse. He reviewed a note from the Respondent’s physician stating that he thought she was safe to practice in nursing, and there was no history of any employer or fellow employee expressing concern about the Respondent’s ability to function as a nurse as a result of her medications. Former co-worker, John Ault, R.N., testified that she was very capable, in his opinion. Dr. Edgar explained that he does not think the Respondent has sedative/hypnotic use disorder because: (a) her medications were all prescribed by physicians; (b) she does not have what he would call a history of taking more of these medications than prescribed; and (c) she may have increased the dosage of Xanax, but that was “perfectly within the realm” because some people need more for the drug to be effective. He does not think her taking more of the medication is a sign or symptom of any substance use disorder. He also noted that, as a nurse, she is capable of making that kind of decision. Dr. Edgar explained that he does not think the Respondent has cannabis use disorder because: (a) there is no history of cannabis affecting Respondent’s behavior, her social situation, her schooling, or her work; and (b) her use of cannabis was more than 20 years ago. He also disagreed with Dr. Wilson that the Respondent has a “lifetime [cannabis] disorder.” Dr. Edgar disagreed with Dr. Wilson’s basing a diagnosis of alcohol use disorder on Respondent’s PEth test result. He believes the test is unreliable and insufficient to support such a diagnosis by itself. He thought the other evidence of alcohol use was lacking and minimal. Dr. Edgar said the “chronic pain syndrome” diagnosed by Dr. Wilson was unwarranted and was another example of his making more out of something than was warranted. Having pain and taking prescribed medication does not mean the Respondent has a syndrome. If she did, he says you would expect to see that diagnosis by her primary care physician. Instead, he says she has a history of migraine headaches, and as an older nurse has aches and pains from stooping and bending and picking up patients, and is appropriately treating both with physician- prescribed medications. Dr. Edgar does not believe taking expired medications is an indication of a syndrome, of drug abuse, or of a disorder. It could well be related to the cost of the medicine. Regarding Dr. Wilson’s diagnosis of anxiety disorder, Dr. Edgar referred to the result of the Respondent’s MMPI-2 testing and explained that it is perfectly reasonable for somebody in the Respondent’s very stressful situation to have anxiety. Regarding Dr. Wilson’s diagnosis of chronic insomnia, Dr. Edgar noted that nurses who have consecutive night shifts are more apt to have trouble sleeping. He did not believe there was enough information to call it chronic insomnia. He would leave any diagnosis regarding insomnia up to the Respondent’s primary care physician. The Respondent tried different medications to deal with her insomnia, and Dr. Edgar did not think that was necessarily dangerous, even if she used Restoril and Xanax together. Dr. Edgar’s evaluation of the Respondent included the information that the IPN program requires. He ruled out substance abuse and other mental health problems that might interfere with the Respondent’s ability to provide safe nursing care. He saw no pertinent chemical dependency history, no history of diversion of patient medications, and no history of misusing prescription medication. The question in his “IPN template” regarding “status and stability of recovery” was inapplicable because the Respondent had no history of drug abuse or dependency, was not in a recovery program, and was only taking medications prescribed by her doctor. Dr. Edgar observed no impairment in the Respondent’s problem-solving ability, cognitive functioning, judgment, ability to cope with stressful situations, decision-making in a crisis, or mental status. He found no cravings on the part of the Respondent for drugs or alcohol. Dr. Edgar concluded that the Respondent does not suffer from any kind of impairment or disease that has resulted in an inability to practice nursing with reasonable skill and safety. He does not believe she needs to be referred to IPN for a program like the one Dr. Wilson recommended. According to the DSM-V, a diagnosis of substance use disorder is based on a “pathological pattern of behaviors” related to substance abuse. A person who has opioid use disorder, sedative/hypnotic use disorder, and/or alcohol use disorder will have behavioral issues and/or impairment that is obvious to other people. These typically would include a lack of motivation and a failure to meet school or work responsibilities. The Respondent has not demonstrated these behavioral patterns. Quite to the contrary, she was pursuing her bachelor’s degree in nursing while working full-time when she applied for the job at Moffitt; and she started a computer systems technician program at Erwin Technical College when her licenses were suspended, and was maintaining a straight “A” average. Dr. Edgar did not think it was likely that an impaired person would be able to perform like that. Dr. Edgar acknowledged that the Respondent had high scores on the addiction proneness indicator in her MMPI-2 psychological test results, but he explained that score is a mere indicator, and is insufficient to support a diagnosis. While it is possible that a problem could arise from being prescribed these medications, Dr. Edgar does not believe problems have arisen to date in the Respondent’s case. He believes it is telling that there has never been a complaint or a concern about the Respondent’s work as a nurse or her ability to practice nursing safely, except for those of Ms. Robidoux. As he observed, “that is usually where it starts.” Dr. Wilson’s opinions appeared to be influenced by his honest and genuine belief as a physician that the Respondent would benefit from the care and treatment she could receive as a participant in IPN. He may well be correct. He also may be correct that there is some risk that problems might arise in the future. However, the evidence taken as a whole was not clear and convincing that the Respondent is now unable to practice nursing and massage therapy with reasonable skill and safety 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.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final orders be entered by the Board of Nursing and the Board of Massage Therapy dismissing the charges against the Respondent. If this recommendation is followed, jurisdiction is reserved for 30 days after the rendition of the final order to rule on the Respondent’s Motion for Sanctions under section 57.105(1), if it is renewed within those 30 days. DONE AND ENTERED this 3rd day of November, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 November, 2017.
