Findings Of Fact In November, 1987 a routine Medicaid audit was conducted on Petitioner's pharmacy by representatives of Respondent. The audit period was from January 1, 1987 to September 30, 1987. As a result of this audit, an overpayment in the amount of $43,708.05 was identified. Petitioner timely requested a hearing after receiving Respondent's notice of overpayment and imposition of administrative fine on or about March 14, 1988. A reaudit of Petitioner was performed by Jo Ann V. Padell, R. Ph., on May 26 and 27, 1988, on behalf of Respondent. Petitioner cooperated fully in this reaudit. After reviewing additional data, and making corrections in the initial calculations, the overpayment amount was identified to be either $6,079.34 or $32,683.31, depending upon varying assumptions used in the calculation. The overpayment amount relied upon, and pursued by Respondent at hearing is $32,683.31. Petitioner was informed by letter from Respondent dated June 15, 1988 that Respondent seeks the recoupment of the $32,683.31 overpayment, a $10,000 administrative fine and a three month suspension from the Medicaid program. Petitioner is under contract with Respondent to participate in the Medicaid program by providing prescription drugs to Medicaid patients, and receiving Medicaid reimbursement. It is located in a low socioeconomic neighborhood in Tampa, Florida, and most customers cannot afford medications unless paid for by the Medicaid program. Petitioner has participated in the Medicaid program for over ten years, and has not previously had any problems with Respondent's audits. David Cartaya is the owner and operator of Petitioner. He is a registered pharmacist, and has an excellent reputation in the community for truthfulness and veracity. Respondent's representative who conducted the reaudit in May, 1988, Jo Ann V. Padell, indicated in her report that she trusts Cartaya's sincerity and professionalism as a pharmacist and business owner. She also reported that it "seemed obvious that their (Petitioner's) business could substantiate their claims to Medicaid." In determining that Petitioner had been overpaid by the Medicaid program, Respondent followed a procedure which is not set forth by agency rule. Rather, the procedure used in this case had never been used before, and although this procedure is substantially set forth in a draft manual entitled "Florida Medicaid/PRO Pharmacy Audit Program," dated March, 1988, this manual has not been finally approved or adopted by Respondent. Additionally, an essential element of the audit procedure set forth in this draft manual, establishing a beginning and ending inventory of drugs available for dispensing, was not conducted by Respondent in this case. Therefore, there is no formally adopted rule or policy of Respondent which is applicable in this case and which sets forth the Medicaid audit procedure used in this case. The procedure in the draft manual was not followed in this case. Rather, the Respondent utilized incipient, non-rule policy, and then sought to explicate that policy at hearing. The audit policy followed by Respondent in this case is a four step process set forth in its letter to Petitioner dated March 14, 1988, as follows: We (Respondent) determined from your (Petitioner's) invoices and suppliers' statements the total number of units of the drug available to be dispensed to all customers during the audit period, and we multiplied that number by the fraction (proportion) of your business that is Medicaid to obtain the total number of units of the drug available to be dispensed to Medicaid recipients. We increased the number in (a) of the units of the drug available for Medicaid reci- pients by an additional one-fourth in case an unusually large proportion of that drug happens to be dispensed to Medicaid recipients. We multiplied the adjusted number found in (b) of the units available for Medicaid recipients by the unit price paid by Medicaid for that drug to determine the highest total dollar amount that Medicaid reasonably should have paid to you for that drug during the audit period based on your invoices from your suppliers. We subtracted the highest amount that Medi- caid reasonably should have paid you for the drug during the audit period found in (c) from the amount that Medicaid actually did pay you for the drug, and the result we must consider to be an overpayment, unless you can provide additional invoices showing that you had the drug available to be dispensed or unless you can provide documentation showing that an even larger proportion of that drug is, on the average over an extended period of time, dis- pensed to Medicaid recipients. Please bear in mind that we have already increased the proportion regarded to be available for Medi- caid recipients by one-fourth or 25 percent. The drugs audited were the 100 drugs for which the highest dollar amounts were paid to Petitioner by Medicaid during the audit period. Respondent's review was an attempt to determine if Petitioner had adequate inventory to cover the claims made. This audit policy has never been validated. Petitioner was the first pharmacy audited by Respondent using this procedure. Rather than it being an audit conducted in accordance with generally accepted accounting principles, the procedure followed results in an estimate of overpayments using a sample of drugs sold during the audit period. The sample consists of the 100 drugs for which Medicaid paid the highest dollar amounts to Petitioner. It is usual and customary for Respondent to rely on estimates based upon samples since this provides reasonable assurance that the estimates produced fairly represent the financial condition of the pharmacy under review. Sampling is also less onerous and time consuming for the pharmacy being audited. The use of the sample size identified in this case has never been validated. The beginning and ending inventories of the 100 drugs evaluated by Respondent in this case were not known by Respondent, and were not used in calculating what inventory was available during the audit period, although this is a mandatory step in Phase II of the audit process as stated in Respondent's draft manual which it relied upon at hearing as a statement of its incipient policy. The 25 percent by which a pharmacy's overall Medicaid percentage is to be increased, as provided at (b) of the incipient audit procedure set forth in Finding of Fact 7, was chosen arbitrarily, and Respondent presented no evidence which would form a reasonable basis for utilizing this figure. Respondent's own expert in accounting, Robert West, testified that he did not know how the Respondent came up with the 25 percent factor. It is well established that there are seasonal variations in the pharmacy business, especially in central and south Florida which have seasonal population increases. Seasonal variations in the volume and kinds of drugs dispensed result in variations in a pharmacy's inventory. Yet, according to Robert West, the audit procedure used in this case assumed that seasonal and inventory variations were immaterial, and did not account for such variations, other than through the arbitrary 25 percent factor. Additionally, the audit period itself only covered nine months, and therefore variations occurring in the remaining three months were not considered. Respondent utilized a strata sampling technique in conducting this audit, but this technique was never validated. The audited sample consisted of the strata of the top 100 drugs, by dollar amounts, dispensed at Petitioner. A more defensible sampling technique would have been a random sample of all prescriptions, according to Robert West, since this technique would have produced a more representative sample. The original audit of Petitioner was on November 16, 19, 20 and 27, 1987 by Patricia J. Vanderbeek of Professional Foundation for Health Care, Inc. (PFHC), representing Respondent. This original audit, termed a Phase I-Part B report, concluded: David's Pharmacy appears to be legitimate in their contractual agreement with Medicaid. PFHC does not recommend to proceed with Phase II Audit procedures. PFHC based this recommendation, in part, on the report of the certified public accounting firm of Copeland and Company, which concluded that no overpayment was indicated. Despite this recommendation, a Phase II audit was conducted, using the procedure set forth at Finding of Fact 7, above, and a report prepared in which the overpayment amount was initially identified as $43,708.05 The draft manual, upon which Respondent relies as a statement of its incipient policy, clearly requires the Phase I auditor to obtain authorization of the Medicaid Fraud and Abuse Section before proceeding with a Phase II review. A Phase II review can only be initiated at the request of the Phase I auditor, with the approval of the Medicaid Program Integrity Office. In this case, the Phase I audit resulted in the recommendation that Phase II not be conducted. Nothing in the record establishes that approval and authorization for the Phase II audit, or the Phase II reaudit conducted by Padell, as required by the draft manual on which Respondent relies, was ever sought or given. In the Phase II reaudit, Padell questioned Petitioner's owner and sole pharmacist, David Cartaya, about his estimate of the percentage of each of the top 100 drugs he dispensed to Medicaid patients, and she found his estimate to be credible. Utilizing Cartaya's percentages, the amount of the overpayment was calculated to be $6,079.34, which Padell felt was reasonably accurate. However, the estimate was also calculated without determining beginning and ending inventories. As a result of Padell's reaudit, 32 of the top 100 drugs were not shown to have been overpaid, but that 32 drugs were thereafter ignored in Respondent's calculation of the $32,683.31 overpayment which is the subject of this case. That is, Respondent estimated the overpayments on the remaining 68 days without crediting any amount of underpayments on these 32 drugs against the $32,683.31 overpayment. Beginning and ending inventories were also not calculated in arriving at this overpayment amount. Competent substantial evidence was not offered by Respondent to support its position that $32,683.31 has been overpaid to Petitioner, contrary to the reports and recommendations of its own representatives and consultants, Padell, PFHC and Copeland and Company. It has not been established that Petitioner overbilled Medicaid for medication patients did not receive. David Suhrweir, a representative of Respondent involved with post- payment review of Medicaid payments, testified at hearing and critiqued Padell's reaudit conclusion that the amount of overpayment was $6,079.34. He termed this calculation irrational since it results in the conclusion that the pharmaceutical needs of Medicaid patients are very different from the needs of non-Medicaid patients, which he found to be illogical. However, James E. Martinez, who was accepted as an expert in pharmacy, gave competent, credible testimony that Medicaid patients are more likely to obtain expensive brand-name drugs, and non-Medicaid patients are more likely to obtain the less expensive generic drugs. This is because persons without Medicaid coverage in the poor neighborhoods that use Petitioner for their pharmaceutical needs are more likely to request the less-expensive generic drugs than those persons with Medicaid coverage. Therefore, the utilization of drugs is skewed, and the procedure utilized by Respondent does not take this into account. The testimony of Suhrweir does not discredit Padell's calculation of the $6,079.34 overpayment, and does not establish a basis upon which the alleged $32,683.31 overpayment can be supported. It is common practice for pharmacies to exchange, or barter inventory, and such exchanges would not appear on any record of drugs purchased. There is no requirement that pharmacies account for non-controlled substance exchanges, or that they keep a level inventory of drugs. Since its March 14, 1988 letter, Respondent has been withholding payment of ten percent of Petitioner's Medicaid billings. Medicaid providers, such as Petitioner, are required to keep records and invoices to support Medicaid billings, and to provide them to Respondent upon request to facilitate audit procedures. Neither the auditor who performed the initial audit, or the reaudit found Petitioner's owner and operator, Cartaya, to be uncooperative, and in fact Padell was impressed with his truthfulness. There is no indication he withheld any information, or failed to produce requested information. None of Respondent's on-site auditors recommended pursuing the amount Respondent now contends was an overpayment.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing this action against Respondent, refunding any funds withheld, plus appropriate interest as authorized by Section 409.335(3), Florida Statutes, and removing all other sanctions imposed upon Petitioner arising from the audit which is the subject of this case. DONE and ENTERED this 17th day of August, 1988, in Tallahassee, Florida. DONALD D. CONN 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 August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1668 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 4. Adopted In Findings of Fact 1, 2. Adopted in Finding of Fact 7. Rejected as argument on the evidence rather than a proposed Finding of Fact. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 7, but otherwise rejected as unnecessary. Adopted in Finding of Fact 9. Adopted in Finding of Fact. Adopted in Finding of Fact 16. 11.-12. Adopted in Finding of Fact 15. 13. Adopted in Finding of Fact 3, but otherwise rejected as irrelevant. 14.-15. Adopted in Findings of Fact 6 8. Adopted in Findings of Fact 6, 9, 10. Adopted in Findings of Fact 1, 3, 13, 15, 16, 18. Adopted in Findings of Fact 6, 7, 13. Adopted in Finding of Fact 13. Adopted in Findings of Fact 3, 13, 14 but otherwise rejected as irrelevant. Rejected as irrelevant. Adopted in Finding of Fact 12. Adopted in Findings of Fact 7, 8, 12. Rejected as unnecessary. Adopted in Finding of Fact 12. Adopted in Finding of Fact 11, but otherwise rejected as unnecessary. Adopted in Findings of Fact 9, 11, 18, 19 but otherwise rejected as cumulative and irrelevant. Adopted in Finding of Fact 4. Adopted in Finding of Fact 18, but otherwise rejected as argument rather than a proposed Finding of Fact. Adopted in Finding of Fact 15. Adopted in Finding of Fact 20. 32.-33. Rejected as a conclusion of law rather than a Finding of Fact. 34. Adopted in Findings of Fact 3, 21. 35.-36. Adopted in Finding of Fact 17. 37. Adopted in Findings of Fact 7-10, 12, 14. Rulings on Respondent's Proposed Findings of Fact. 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact .2. 4.-9. Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 3. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3, but otherwise rejected as a conclusion of law. Adopted in Findings of Fact 7, 8. Adopted in Finding of Fact 7. Adopted in Findings of Fact 3, 14. Rejected as simply a summation of testimony rather than a proposed Finding of Fact. Adopted in Finding of Fact 8. Adopted in Finding of Fact 18. Rejected in Findings of Fact 3, 9, 19 and otherwise asirrelevant. 21.-23. Adopted in Finding of Fact 21. COPIES FURNISHED: William M. Furlow, Esquire 800 Barnett Bank Bldg. 315 South Calhoun Street Tallahassee, Florida 32301 M. Floy Mikell, Esquire 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues are whether, contrary to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070, Respondent has committed violations in core- competency training for nine employees (Eula Brown, Natasia Bernard, Lorine Smiley-Lewin, Taneish Mayers, Irene Thompson, Therese Etienne, Adrae McCalla, Marline Ford, and Cynthia Phinn), "medication administration/validation training" for seven employees (Ms. Bernard, Ms. Smiley-Lewin, Ms. Mayers, Ms. Thompson, Ms. Etienne, Ms. Ford, and Ms. Phinn), service authorizations for two consumers (J. B. and L. H.), and Level 2 background screening and HIPAA training for one employee (Ms. Ford). If Respondent is guilty of any of these violations, an additional issue is the fine that should be imposed.
Findings Of Fact At all material times, Respondent owned half of the shares of Glory House USA, Inc., which, for ten years has operated one or more group homes for the developmentally disabled. At all material times, Respondent has been a Medicaid provider of services under the Florida developmental disabilities waiver program. For 2011, Respondent received $790,367.16 in Medicaid reimbursements for services provided to Medicaid consumers. At all relevant times, Respondent has been subject to a Medicaid Provider Agreement. In this agreement, Respondent agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. In particular, Respondent agreed to comply with Petitioner's Medicaid handbooks. On September 29, 2011, Petitioner's inspectors conducted an unannounced inspection of Glory House. During the course of the inspection, Petitioner's inspectors spoke to Respondent's home manager, who answered the inspectors' questions, supplied all of the requested documents that were readily available, and took the inspectors on a tour of the facility. The Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook issued by Petitioner, effective May 2010 (Medicaid Handbook) Appendix A identifies the assurances required by Petitioner and the Agency for Persons with Disabilities (APD) of providers of services under the Developmental Disabilities Home and Community-Based Services Waiver. Appendix A Section 2.1 imposes specific training requirements on providers and their employees. Appendix A Section 2.1.G imposes the requirement of core competency training upon "[a]ll direct service providers . . . within 90 days of employment." As of the date of the inspection, seven employees, who had been employed by Respondent's corporation for over 90 days, had not completed direct-care core competency training: Ms. Brown, Ms. Bernard, Ms. Smiley-Levin, Ms. Mayers, Ms. Thompson, Ms. Etienne, and Ms. Phinn. Petitioner has thus proved seven of the nine alleged violations of this training requirement. Respondent's corporation employed Ms. Ford in July 2011, so she was still in her first 90 days of employment at the time of the inspection and was not yet required to have completed her core competency training. Petitioner seems to have relied on an earlier date shown in Petitioner Exhibit 3, but this date purports to show the date of the employee's application, not the date of hire. The only evidence of Ms. Ford's hire date is the testimony of Respondent's daughter, who is the assistant administrator, and she places the date of hire in July 2011. Ms. McCalla had completed the required training prior to the site inspection. Certificates documenting this training show that Ms. McCalla completed the APD Core Competency Training I on September 14, 2006, and APD Core Competency Training II on September 19, 2006. For the two reasons noted in the Conclusions of Law, it is irrelevant that Respondent may not have provided the certificate to the inspectors at the time of the inspection, so the Administrative Law Judge declines to make a finding of fact on whether Respondent provided these certificates to Petitioner at the time of the inspection or within the 15 additional days allowed by the inspector for the provision of documents, as noted below. On the other hand, Respondent's argument that core competency training was only required of employees providing unsupervised direct care to consumers is unsupported by the above-cited provision of the Medicaid Handbook. The allegation as to "medication administration/validation training" is a composite allegation. As noted in the Conclusions of Law, certain employees of providers must undergo medication administration training and validation; these are separate requirements. Also, there is no requirement of "validation training," as suggested by Petitioner's allegation. As of the date of the inspection, six of the seven named employees had completed medication administration training. Ms. Ford was the only employee who had not completed medication administration training, but she did not, at the time, administer medication to consumers or supervise their self-administration of medication. As explained in the Conclusions of Law, the Administrative Law Judge has rejected Petitioner's claim that Respondent had to affirmatively designate those employees who were not allowed to administer medications or supervise the self-administration of medications, so the Administrative Law Judge declines to make a finding of fact on whether Respondent so designated any such employees. Petitioner has thus failed to prove any of the seven alleged violations of this training requirement. As of the date of the inspection, three of the seven named employees had current validations for medication administration: Ms. Mayers, Ms. Etienne, and Ms. Phinn. (Like Ms. Ford, though, Ms. Etienne did not, at the time, administer medication to consumers or supervise their self-administration of medication, so Petitioner's proof as to Ms. Etienne fails on two grounds.) Because, as noted above, Ms. Ford was not designated to administered medications or supervise the self- administration of medications, Petitioner has thus proved three of the seven alleged violations of the validation requirement: Ms. Bernard, Ms. Smiley-Lewin, and Ms. Thompson lacked the required validations. As of the date of the inspection, one employee--the peripatetic Ms. Ford--had not completed HIPAA training. However, the record fails to establish the specific details of this requirement. In its proposed recommended order, Petitioner has relied on two documents: the Non-Institutional Medicaid Provider Agreement (Petitioner Exhibit 1, p. 16), which states only: "The provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statement of policy applicable to the Medicaid program, including the Medicaid . . . Handbooks . . . "; and the Medicaid Handbook, which states: Florida Medicaid has implemented all of the requirements contained in . . . HIPAA. [A]ll Medicaid providers, including their staff . . ., must comply with HIPAA privacy requirements. Providers who meet the definition of a covered entity according to HIPAA must comply with HIPAA Electronic Data Interchange (EDI) requirements. . . . For the reason noted in the Conclusions of Law, Petitioner has failed to prove its alleged HIPAA-training violation. As of the date of the inspection, Ms. Ford had submitted unspecified documentation sufficient to allow the Department of Children and Family Services (DCF) to issue a letter, dated June 29, 2011, documenting "the final results of a criminal history records check received by [DCF], required by Florida Statute for the below stated program," which is noted as an "APD Foster/Group Home." The letter further states: "[DCF] received the complete criminal history records for [Ms. Ford]. Nothing was found in the Department's review that disqualifies the individual from serving in the program . . . for which this screening was requested and is required by law." The letter adds that "[t]his screening remains valid for five years providing the applicant does not have a 90 day break in service " The Medicaid Handbook, at page 55, states: Direct service provider applicants must comply with the requirements of a level 2 screening in accordance with section 435.04, F.S. Compliance with this requirement may be accomplished through one of two ways: ?Background screening pursuant to s. 393.0655, F.S., or Applicants must submit a fingerprinting card, an affidavit of good moral character, a caretaker information sheet, and a check . . . to DCF for processing. . . . The results of this screening will be submitted with the Medicaid enrollment application. ?Background screenings pursuant to section 409.907, F.S. Applicants must submit a fingerprint card with the Medicaid Enrollment Application and a check made payable to the Medicaid fiscal agent for processing; or, if available, the applicant may submit the screening through an approved live scan location. Screening is performed at the time of enrollment and every five years thereafter. It is the responsibility of the applicant or provider to ensure this request for screening or rescreening is submitted for processing in a timely manner. Assuming that the cited provisions impose any duty upon Respondent beside ensuring that the employee or prospective employee timely submits her request for screening or rescreening, it is difficult to understand how Ms. Ford's screening document fails to satisfy the second alternative in the first bulleted paragraph. It certainly appears that Ms. Ford submitted the required items to DCF for processing, and DCF found nothing to prevent her employment at Glory House. Further confirming its responsiveness to the screening requirement in the Medicaid Handbook, the DCF letter even notes that it is good for five years. Petitioner has thus failed to prove its alleged screening violation. Medicaid Handbook Appendix A Section 3.6.E states that a provider may "[b]ill for only those services for which an approved service authorization has been received. Copies of service authorizations shall be kept on file by the provider and shall be made available to APD, [Petitioner], or their authorized representatives for monitoring purposes." As of the date of the inspection, L. H. and J. B. had current service authorizations. The terms of these authorizations were July 1, 2011, through June 30, 2012. Petitioner has thus failed to prove the two service authorization violations. By letter hand delivered to the home manager on September 29, 2011, Petitioner provided Respondent with an additional 15 days to provide, among other things, all employee records, including level 2 background screens. The letter is not free from ambiguity, largely because it is a form for use in a Medicaid-overpayment case that, in this case, covers a list of items that Respondent needed to provide Petitioner following the inspection. In any event, the letter cannot be interpreted as extending the time for compliance with the underlying requirements. In other words, if an employee obtained a medical administration validation on October 5, 2011, it would not obviate the violation. As the Administrative Law Judge noted at the hearing, such an interpretation of the letter would enable providers to ignore many Medicaid program requirements until Petitioner conducted an inspection and then avoid any sanctions by belatedly coming into compliance--after the inspection uncovered violations. There is no indication of prior offenses by Respondent under the Medicaid program. Thus, as defined in the rule discussed in the Conclusions of Law, the ten proved violations all are a first offense for the purpose of identifying the proper fine per violation.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of seven violations of the core competency training requirement and three violations of the medication administration validation requirement and imposing a fine of $10,000. DONE AND ENTERED this 12th day of July, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of July, 2012. COPIES FURNISHED: Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 jeffries.duvall@ahca.myflorida.com Randy A. Fleischer, Esquire Randy A. Fleischer, P.A. 8258 State Road 84 Davie, Florida 33324 randy@igc.org Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
Findings Of Fact Richard Templeton is a registered nurse holding license #RN 137921-2 issued by the State Board through the Department of Professional Regulation. At all times pertinent to this case, Respondent was employed at Morton Plant Hospital, Clearwater, Florida. On the night of 19/20 July, 1983 Respondent was charge nurse on ward Bernard 5 at Morton Plant Hospital, and was responsible for the administering of medications to include controlled substances, to David Johnson. There were approximately 45 patients on the ward, and Respondent was responsible for at least one third of them. The narcotic sign out sheets reflect that Respondent signed out for 100 mg Demerol at 1:15 A.M. & 4:15 A.M. for David Johnson on said night. Johnson's nursing notes in his medical chart for 7:00 A.M. reflect that Johnson was given 2 pain medicines at 1:15 & 4:15. Johnson's charts reflect he got sleeping medicines at 11:50 P.M. and was sleeping at 2:00 A.M. & 6:00 A.M. 2/ Johnson testified as to the medicines he received while a patient at Morton Plant Hospital in July 1983. Johnson stated he did not receive any injections prior to his pre op medicines which were administered at approximately 1-2:00 P.M. on 20 July, 1983. Johnson's testimony is very concrete and reflects a good recollection of events. His testimony is borne out by the records and is credible. On April 2, 1984 the Respondent entered a plea of nolo contendere to criminal charges that he had violated Chapter 893.13(3)(a)1, Florida Statutes. See Petitioner's Exhibit 2. The court found the Respondent guilty of said charges. Registered nurses have a legal obligation to administer or waste properly controlled substances which they sign out, and to chart the administration of drugs they administer. Mepheridine is the generic name for Demerol, and is a controlled substance pursuant to Chapter 893, Florida Statutes.
Recommendation Having found the Respondent guilty of violating Sections 464.018(1)(c), Florida Statutes, it is recommended the Respondent's license be revoked; however, it is recommended that the revocation be suspended and the Respondent's license be suspended for one year and placed upon probation for two years thereafter during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. Having found the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes, it is recommended the Respondent's license be suspended for three years; however, it is recommended that the final two years of the suspension be abated and the Respondent be placed upon probation the final two years during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. DONE and ORDERED this 28th day of June, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
