The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issues are whether Respondent failed to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B-27.0011(4)(d), by testing positive for marijuana; and, if so, what penalty should be imposed against Respondent's Law Enforcement Certificate.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified in Florida as law enforcement officers. On June 29, 2000, Petitioner certified Respondent as a law enforcement officer pursuant to Law Enforcement Certificate number 192064. Petitioner had previously certified Respondent as an auxiliary law enforcement officer on November 3, 1998, pursuant to Law Enforcement Certificate number 183207. Respondent has worked continuously as an auxiliary law enforcement officer and as a law enforcement officer for the DeSoto County Sheriff's Office (Sheriff's Office) from November 3, 1998. Respondent performed her jobs well and had no disciplinary action prior to this proceeding. On January 30, 2002, a licensed practical nurse (LPN) for the Sheriff's Office collected a urine specimen from Respondent in a random procedure conducted pursuant to the Drug Free Workplace testing program. The LPN sealed the specimen in the presence of Respondent and stored the specimen in a refrigerator regularly used for that and other purposes. Staff for the Sheriff's Office forwarded the specimen to LabCorp at approximately 4:00 p.m. on the same day that the LPN collected the specimen. The specimen arrived at LabCorp with the seals in tact. LabCorp would not have tested the specimen if the seals were broken. LabCorp staff observed two deficiencies in the chain of custody documents that accompanied the specimen. The collector signed as the collector but did not sign as the person who released the specimen. Nor did the chain of custody documents indicate the mode of shipment. LabCorp began testing the specimen and sent an affidavit to the LPN for her to sign. The LPN signed the affidavit, without understanding the content or purpose of the affidavit, and returned it to LabCorp. LabCorp would not have completed testing if the LPN had not returned the affidavit properly completed. LabCorp conducted an immunoassay. The specimen tested positive for propoxyphene. The reading for propoxyphene metabolite exceeded the minimum 300 required for a positive result. The specimen also tested positive for cannabinoids (marijuana). The reading for marijuana metabolite exceeded the minimum of 50 required for a positive result. LabCorp conducted a gas chromatography mass spectrometry (GCMS) to rule out a false-positive reading in the immunoassay. The specimen exceeded the minimums of 300 for propoxyphene and 15 nanograms per milliliter for marijuana. The specimen reading for marijuana was 32 nanograms per milliliter. LabCorp referred the test results to Dr. John Eustace, a certified medical review officer under contract with the Sheriff's Office to ensure the validity of test results for controlled substances. Dr. Eustace confirmed the test results and contacted Respondent. Respondent had a prescription for Darvocet. Darvocet contains propoxyphene. The Administrative Complaint does not charge Respondent with any violation based on propoxyphene. Respondent stated to Dr. Eustace that she was on other non-prescription pain medications. None of the pain medications would have caused a false-positive reading in the testing conducted by LabCorp. After concluding her conversation with Dr. Eustace, Respondent immediately submitted a second specimen for independent testing that was completed on February 14, 2002. The specimen did not test positive for any controlled substance. The independent test was conducted approximately 14 days after Respondent provided the original specimen. Tests may detect marijuana in chronic users for up to 14 days but generally cannot detect the drug in recreational users after three to five days. Respondent denies using marijuana and denies any willful or intentional ingestion of marijuana. The test conducted on the original specimen would have detected marijuana in Respondent's system if Respondent were to have ingested the drug unknowingly through food that she consumed or through second hand smoke. Respondent does not recall being around anyone smoking marijuana and has no knowledge of consuming food that contained marijuana. Respondent's only explanation for the positive test results is that someone tampered with the specimen tested by LabCorp. The refrigerator used to store the specimen is located in an area of the building that is not secure. Staff members of the Sheriff's Office as well as some inmates in the adjacent jail have access to the area where the refrigerator is located. Assuming arguendo that someone had access to the specimen, Respondent elicited no testimony from Petitioner's experts, and called no expert in her case, to show how those with access to the refrigerator could have added a substance to the specimen to cause it to test positive for marijuana. Nor did Respondent submit any evidence of how such tampering could have been accomplished without breaking the seal on the specimen tested by LabCorp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order finding Respondent guilty of failing to maintain good moral character, within the meaning of Florida Administrative Code Rule 11B- 27.0011(4), and issuing a written reprimand in accordance with Subsection 943.1395(7)(e), Florida Statutes (2001). DONE AND ENTERED this 3rd day of August, 2004, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Pine Scott Price, Esquire Bank of America Building 126 East Olympia Avenue Suite 405 Punta Gorda, Florida 33950 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for consideration in this case is whether the School Board has cause to discharge Respondent, Arlene Murray, from her duties as a bus driver with the Board because of a positive result for cocaine obtained in a drug screening.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Pinellas County School Board, was the agency in Pinellas County responsible for the provision of public education and educational support services in the county. Respondent, Arlene Murray, was employed by the Petitioner as a school bus driver. The position of school bus driver is a sensitive position and subject to the additional requirements pertinent to employment in such a position. One of these requirements is to undergo random drug screening from time to time. There is a decided safety purpose inherent in this requirement. By letter issued in October, 1994, the Board notified all its school bus drivers, including the Respondent, that, consistent with federal law, all employees who were required to hold a commercial driver's license and who perform sensitive functions for the Board, would be subject to drug urinalysis testing and/or breath alcohol testing. Respondent operated a school bus which transported more than 15 persons and was, therefore, subject to this requirement. Sometime thereafter, in December, 1994, the Board adopted Section 6Gx52-5.27, "Drug-free and Alcohol-free Workplace", as a formal Board policy. One purpose of this policy was to comply with the federal requirement. Consistent with this action, the Board contracted with FirstLab, a medical testing organization, to conduct the drug screenings, and FirstLab contracted with Corning-Metpath Clinical Laboratories, (Corning Metpath), a certified clinical laboratory, to conduct the actual analyses of the specimens gathered from subject employees. School Board policy and the pertinent federal regulations require that drug testing be conducted un-announced on a random selection basis and must equal or exceed fifty percent of the total number of individuals in each subject class. Consistent with the policy and federal requirement, sometime prior to January 23, 1995, Max Loden, the Board's supervisor of support services and its project coordinator for drug testing, compiled a list of all subject employees which he thereafter furnished to FirstLab. FirstLab, in turn, through use of its computers, generated a random list of those subject employees who were to be drug tested in calendar year 1995. The list for the first quarter of calendar year 1995 was telefaxed by FirstLab to Mr. Loden on January 23, 1995. Respondent's name appeared on that list. Also, sometime during January 1995, the Board conducted one-hour workshops for all bus drivers to inform them of its policy regarding drug testing. At those training sessions, a handbook describing the program was furnished to each driver. Each driver who received such a handbook signed a receipt to that effect. On January 26, 1995, Ms. Murray signed a receipt indicating she had received the information handbook describing the Board's drug policy. As a part of its implementation of the testing program, some time before March 1995, the Board contracted with Doctors Walk-In Clinic, (Clinic), located on US 19 North in Clearwater, to be a drug testing site. A complete and detailed collection procedure was developed which, all available evidence indicates, is designed to preserve the confidentiality of the donor, and to ensure that the integrity of each sample is maintained to guarantee a match of sample with donor and against contamination by any outside source. This procedure was followed in Ms. Murray's case. On the morning of March 10, 1995, Respondent was notified by a Board representative that she was to report to Doctors Walk-In Clinic for a drug test before 9:35 AM that day. Ms. Murray reported to the proper location for testing as instructed, where the sample was collected according to the defined collection procedure, by Ashar Deshbande, a lab technician at the Clinic. Once the sample was collected, Ms. Deshbande completed the required portions of the federal drug testing custody and control form for shipment of the sample to Corning-Metpath for analysis. Portions of this form are completed by both the technician and the donor, and a detailed procedure is prescribed and followed for the securing, packaging and transmission of the sample from the collection site to the laboratory. This procedure, which was followed in this case, is designed to insure that the sample collected from the individual donor is properly identified, secured and transmitted to the lab without any reasonable possibility of contamination. Respondent's sample was received at Corning Metpath, a facility licensed to conduct this type of laboratory analysis by both the appropriate federal and Florida authorities, on March 14, 1995. When inspected at Corning Metpath, the sample was found to have all security seals intact and undisturbed. The identification number on the specimen was compared with the number on the requisition form submitted by the Clinic and found to be identical. It is found, therefore, that the sample collected from Respondent on March 10, 1995, immediately secured, identified and prepared shipment to Corning Metpath, and thereafter shipped by air to Corning Metpath, was the same sample as received by the laboratory on March 14, 1995 and it had not been contaminated by any outside source at time of receipt by the lab. A tracking number to be used for laboratory internal tracking was also assigned at that time. Several distinct tests were run at Corning Metpath on the instant specimen collected from Respondent. The first was a screening test, conducted on March 15, 1995. In this test, the sample is placed within a batch of control samples used to insure the instrumentation is properly functioning during the process of analysis. This screening process tests for five drug classes. These include amphetamines, phincyclatine, PCP, opiates and marijuana. In the course of the test, only a small portion of the sample is utilized. The remainder of the collected sample is placed in a locked cage for temporary storage. The sample to be used is then taken the preparation room to the screening room where instrumentation reads the identifying bar code on the containers, performs the analysis and produces a print out. Once the process is completed, this tested sample portion is discarded. In the instant case, the screening test indicated Respondent's specimen showed a numerical value of 370. This is more than twice the minimal indicator calibrated for indicating the presence of cocaine. When the specimen tested positive for cocaine, the sample was removed from the test batch and secured in a locked refrigerator for confirmation testing. The next day, March 16, 1995, the Respondent's positive sample was removed from the locked refrigerator and subjected to confirmation testing. Confirmation testing is accomplished by a staff team entirely different from those individuals who made up the screening test personnel. The confirmation testing is done on only one specimen at a time and no more than that sample under test is opened. In a confirmation test, the standards of which are even more stringent than those for the screening test, Respondent's sample again tested positive for cocaine. The test results indicating a positive result of the laboratory analysis were received from FirstLab by Mr. Loden at the Board on March 23, 1995. Mr. Loden immediately notified the Board's Office of Professional Standards that a positive result had been received on Ms. Murray's sample, and a decision was then made to suspend Ms. Murray, with pay, until dismissal action could be considered by the Board at its next regularly scheduled meeting. Before the Board meeting could be held, Ms. Murray requested formal hearing. Ms. Murray denied under oath ever using cocaine and affirmatively stated she did not use drugs. She could not, however, give any explanation as to how cocaine metabolite could have been present in her urine. Ms. Murray has lived in Pinellas County for 32 years and has been employed by the Board as a bus driver for six years. Prior to the instance under consideration here, she claims, she has never been in any trouble with the Board and has never been convicted of a crime. When interviewed by Dr. O'Howell on the day the test results were received, she was advised of the results and that if she resigned, the incident would not appear in the papers. Because, she claims, she has not used drugs for at least one year prior to this incident, Ms. Murray declined to resign and was dismissed. She asserts that in briefings given to employees, they were told that if they were to come to their supervisor and indicate they needed help, they would not be fired. She knows of at least one other employee who tested positive for drugs and was not fired. That individual was not identified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Arlene Murray, be terminated for cause from employment as a school bus driver with the Pinellas County Schools. RECOMMENDED this 27th day of October, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 27th day of October, 1995. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Eduardo LaTour, Esquire Tarpon Tower, Suite 400 905 East Martin Luther King, Jr. Drive Tarpon Springs, Florida 34689-4815 Dr. J. Howard Hinesley Superintendent Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Request for Proposals On March 14, 2001, the Board authorized the issuance of a request for proposals to solicit offers on a contract for drug screening services. Soon, Request for Proposals No. 149-AA10 (the “RFP”) was issued. The purpose of the RFP, as stated on the first page thereof, was [t]o obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services both to meet the general requirements for collection and drug screening services; and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (Attachment A). The deadline for submission of proposals in response to the RFP was April 10, 2001. Page 3 of the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide (the “Guide”) explained that applicants and employees are tested in the following circumstances: (1) upon application for full-time employment; (2) when "reasonable suspicion"1 exists to believe that an employee has impermissibly used drugs or alcohol; (3) as part of routine "fitness for duty" medical examinations2; and (4) as a "follow up" to an employee's completion of a drug rehabilitation program. Because the District employs persons performing safety- sensitive functions and persons who hold commercial driver licenses, the District must comply with a federal law known as the Omnibus Transportation Employee Testing Act (“OTETA”). Employees covered by OTETA are subject to pre-employment testing, post-accident testing, random testing, reasonable suspicion testing, "return-to-duty" testing (after a positive test), follow-up testing, and annual testing. Guide, pp. 10-14. Unlike other employees, persons falling under OTETA are not subject to blood alcohol screening. Guide, p. 22. The type of drug test that the District most frequently requests involves urinalysis. For alcohol testing, breath analysis is the normal practice. Blood alcohol testing is used infrequently. The RFP did not explicitly disclose the District’s relative demand for these various types of tests. Section V of the RFP prescribed the technical requirements with which proposers needed to comply. Subsection C thereof stated, in pertinent part: The collection site is a place where individuals present themselves for the purpose of providing urine or blood specimens to be analyzed for the presence of drugs or alcohol. Page 15 of the Guide added that "[c]ollection sites shall have all of the necessary personnel, materials, equipment, facilities, and supervision to provide for the collection, security, temporary storage, and shipping or transportation of urine specimens to a certified drug testing laboratory." Section V, subsection K set forth four “location parameters [as] examples of locations which shall comprise the areas for collection and drug screening to insure [sic] convenience for applicants and employees.” These “location parameters” essentially divided the Miami-Dade County service area into quadrants. Section V, subsection L, provided in relevant part: “Mobile collection of specimens will be required at some of the Regional Transportation Centers[.]” The Guide, at page 15, further mandated that "[m]obile collection sites" be equipped and staffed "the same as" other collection sites. Section V, subsection M stated, in part: “A collection site is preferred in the area of 1500 Biscayne Boulevard, Miami, Florida 33132, for the convenience of any potential employees who wish to provide specimen collection concurrent with a scheduled interview by the Office of Human Resources.” Section V, subsection N, stated: At least one site in the North end and [sic] of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Section VI of the RFP, which addressed the cost of proposed services, instructed that [p]roposals must include an itemization of charges for collection of specimens, initial and confirmatory tests. Such itemized charges will be used in the event a retest is necessary. Retests required as a result of defective equipment, incorrect analysis, or misinterpretation shall be done at the expense of the provider. Section VIII provided that proposals would be “evaluated by [a] selection committee . . . comprised of representatives of the school district, in order to ascertain which proposal best meets the needs of the School Board.” The selection committee (hereafter, “committee”) was to be composed of one administrator each from five separate offices, which were designated in section VIII. Section VIII also established the evaluation criteria to be used by the committee, stating: Evaluation considerations will include, but not be limited to, the following: Responsiveness of the proposal clearly stating an understanding of the work to be performed meeting all the technical guidelines in [the Guide]. Cost may not be the dominant factor, but will have some significance. It will be a particularly important factor when all other evaluation criteria are relatively equal. Documentation of current certification by DHHS; qualifications of laboratory staff members; past experience and record of performance; verification of references. Location of the laboratory and planned method of pick-up from designated collection sites and transportation of specimens according to chain of custody protocol to the drug testing laboratory; turnaround time relative to volume of expected need; accessibility relative to volume of expected need. Primary emphasis in the selection process will be placed on the independence, background, experience, and service of staff to be assigned to the project. Expertise in the areas addressed in the RFP, and the ability to respond in a timely, accurate manner to the district’s requirements is essential. Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collection/testing. The School District reserves the right to reject any and all proposals submitted and to waive irregularities. . . . . Relevant Details About the Proposals Two proposers, Global and RN, submitted timely responses to the RFP. The following is a look at certain terms in their respective proposals. Global’s Proposal Global was the incumbent provider pursuant to a contract that had been entered into on June 11, 1997. Even before the establishment of the expiring contractual relationship, from 1995 forward, Global had provided general drug testing services for the District. In addition to that, Global had performed fingerprint analyses for the District prior to 1995. Thus, Global had a history with the District. In a Fee Schedule included at page VIII-1 of its proposal, Global quoted the following prices for services: Federal Drug Testing for OTETA covered employees $30.00 * * * Breath Alcohol Testing $25.00 After hour Services Flat fee per donor/employee . $75.00 plus regular testing fee Monday — Friday: 5:00 p.m. — 8:30 a.m. Saturday and Sunday All Day Florida Drug Free Work Place for general employee drug testing $25.00 * * * At page V-1 of its proposal, Global listed ten collection facilities, providing their addresses and hours of operation. According to the proposal, only one of these facilities stays open until midnight. Five of them close each weekday at 4:00 p.m., and four at 5:00 p.m. None is open on weekends. Global offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered a site in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And Global offered at least one site each in the north and south ends of Miami-Dade County, satisfying the geographic requirements of subsection V.N. Global’s south-end site, however, closes at 5:00 p.m. and thus fails to satisfy the requirement, also prescribed in subsection V.N., that such facility remain open until midnight. In addition to these stationary facilities, Global offered the services of a mobile unit. Its proposal stated: ON-SITE COLLECTION After Hours Emergency24 hours Operating hours: Monday — Sunday Via Mobile Unit Global described its mobile unit, at page V-2, as a “self contained air conditioned motor coach equipped with 2 bathrooms, blood drawing chair, urine collection equipment, computerized breach alcohol analyzer with ample facilities for a physician to conduct physical exams on DOT (OTETA) employees and yearly re- certification.” Global, in fact, has three of these mobile units. The vans are available for use by all of Global’s clients. Two vehicles are maintained in Fort Lauderdale, Broward County, Florida, and thus are in position to respond to service calls for the District. The third van is maintained in western Palm Beach County. Because after-hours tests generally are needed in post-accident and reasonable suspicion circumstances, which require a rapid response (within two hours of the incident), the Palm Beach County-based van would not, as a practical matter, likely be deployed for the District. Global does not maintain a mobile unit in Miami-Dade County. B. RN’s Proposal Included in RN’s proposal was the following schedule of costs: RN Expertise charges $27.80 for a 5 panel NIDA drug screen. This charge includes an adulterant panel, 5 panel drug screen, collection of the specimen, transportation charges and MRO charges. There will not be a charge for confirmation tests. RN Expertise charges $26.00 for an 8 panel drug screen. This charge will include an adulterant panel, 8 panel drug screen, collection of the specimen, transportation charges and MRO charges. If the School Board does not elect to have an adulterant panel performed on general tests the charge will be $25.00. RN Expertise charges $25.00 for a breath alcohol test. This also includes on- site testing charges. There will not be a charge for confirmation tests. RN Expertise will charge $30.00 for a blood alcohol test. RN Expertise will submit monthly invoices. These invoices will be submitted to the Office of Operation and Records and/or the Office of Professional Standards (OTETA) through a purchase order. The invoices shall reflect service provided to the Board in the prior month. Regarding collection sites and locations, RN’s proposal stated, at pages 12 through 13: Quest Diagnostics [the laboratory that RN proposed to use] has 14 collection sites in the Miami-Dade County area. Please see Appendix B for all maps of locations and zip code map with all locations that have been highlighted for your convenience. RN Expertise, Inc. will provide all on- site drug screen collections and breath alcohol tests. We have numerous certified collectors and breath alcohol technicians throughout the state who specialize in on site testing. All collectors and BATS have been certified by Christine Steele. Please see Appendix C. for certificates of RN Expertise, Inc. and insurance and licenses. Three Quest patient care centers are located very close to the area of 1500 Biscayne Boulevard, Miami, Florida, 33232. The hours of operation are 7:00 am to 4:30 pm. RN Expertise has arranged three third party sites in the North end of Miami-Dade county and one site in the south end of Miami-Dade County that are available to perform reasonable suspicion and post- accident testing. The hours of operation are from 8:00 am to 12:00 midnight. These addresses are: Workers Compensation Medical Center 17601 N.W. 2nd Avenue Ste S Miami, Florida 33169 Workers Compensation Medical Center 6504 N.W. 77th Court Miami, Florida 33166 Homestead Hospital 160 NW 13th Street Homestead, FL 33030 If these sites are not convenient we can arrange additional sites or provide these tests on an on-site basis. RN offered collection sites in each of the quadrants specified in subsection V.K. of the RFP. It offered sites in the area of 1500 Biscayne Boulevard, Miami, Florida, as recommended in subsection V.M. And RN offered at least two sites in the north end of Miami-Dade County and one in the south, all three of which were open from 8:00 a.m. until midnight, thereby satisfying both the geographic and hours of operation requirements of subsection V.N. The Evaluation Committee(s), Mr. Bevan’s Comparison Chart, and the Evaluations A. The Original Committee To evaluate the proposals, a five-person committee was appointed in accordance with the RFP. Its members were Nelson E. Diaz, Deputy Superintendent, Personnel Management and Services; Gwendolyn Jennings Kidney, Assistant Superintendent, Employee Support Programs; Jose Montes de Oca, Assistant Chief Auditor, Management and Compliance Audits; Michael Fox, Risk Analyst, Risk and Benefits Management; and Patricia Freeman, Director, Business Development and Assistance. This committee arranged to meet for the first time on April 11, 2001. Notice of the meeting was not published in advance; the committee would convene in private. The following staff persons were asked to be present at the April 11 meeting to provide technical expertise, if needed: Vera Hirsh, Administrative Director, Personnel; William Bevan, Executive Director, Personnel Operations and Records; Frederic F. Conde, Executive Director, Office of Professional Standards; and Barbara Jones, Director, Procurement. B. Mr. Bevan’s Comparison Chart Before the April 11, 2001, meeting, Ms. Hirsh asked Mr. Bevan, as a technical advisor to the committee, to prepare a comparison of the two proposals. At the time, Mr. Bevan was most knowledgeable about the District’s procedures for drug testing, because he had been directly involved in the general drug testing program. Also, through his work experiences, Mr. Bevan had acquired personal knowledge concerning Global. Indeed, Global had listed Mr. Bevan as a reference in its proposal. Mr. Bevan prepared a comparison chart that was distributed to all the members of the committee. The following table contains the substance of Mr. Bevan's comparison chart:3 Item No. GLOBAL RN EXPERTISE 1 TURNAROUND TIME IS NEXT BUSINESS DAY 5 DAYS ON POSITIVE 24 HOURS FOR NEGATIVES 48 HOURS FOR POSITIVES 2 LOCATION IS FORT LAUDERDALE ALTAMONTE SPRINGS 3 PLAN TO DELINEATE OTETA FROM GENERAL GOOD PLAN PLUS ICON BASED DRUG TEST FORM VERY WEAK PLAN VERY WEAK ANALYSIS 4 COST $30.00 DOT BLIND SAMPLES ARE INCLUDED COST $27.80 NO MENTION OF BLIND SAMPLES 5 POLICE $25.00 ALL ALCOHOL TESTS BOTH BREATH & BLOOD ARE $25.00 $26.00 8 PANEL TEST BREATH ALCOHOL $25.00 BLOOD ALCOHOL $30.00 6 COLLECTION SITES 10 TOTAL SITES 14 TOTAL SITES LESS 4 IN BROWARD, 6 FOR BLOOD DRAW ONLY = 4 NET SITES 7 MOBILE COLLECTION DONE BY MOBILE VAN "WILL PROVIDE ON-SITE COLLECTION" 8 EXPERIENCE 4 YEARS WITH M-DCPS NO SUCCESSFUL LEGITATION [sic] AGAINST M-DCPS US SUGAR ? 9 LABORATORY LAB CORP OF AMERICA LATE IN REPORTING RESULTS ONE TIME IN FOUR YEARS QUEST LABORATORIES QUESTIONABLE 10 ADULTERANT TESTING IS PERFORMED BY LAB CORP AT A STANDARD COURSE OF PROTOCOL WITH NO CHARGE FOR THIS PROCEDURE TESTSURE IS BROKEN OUT AS A SEPARATE ENTITY Because of his personal knowledge of and experience with the drug screening program, Mr. Bevan's opinions carried great weight with the committee members. As will become clear, moreover, Mr. Bevan operated as a de facto evaluator. Thus, for good reasons, his comparison chart drew RN’s close and critical attention. It will be examined in detail below. Item No. 1. This item is helpful as a contrast to the others, for here Mr. Bevan did exactly what a technical advisor should do: provide a concise, accurate, and objective summary of details contained in the proposals without making a subjective judgment as to which proposal is superior. Item No. 2. As Mr. Bevan admitted at hearing, the RFP did not include, as an evaluation criterion, the location of a proposer's base of operations. Testifying, he explained that, "in [his] mind, [a proposer's location] was not something that was in the RFP, but it was important to me." Hearing Transcript (“T.”) 59. Of course, it was not Mr. Bevan's place to make subjective judgments about what was valuable in the proposals—— that was for the evaluators. Further, even the evaluators could not properly take into account undisclosed evaluation criteria. Thus, this comparison was irrelevant and consideration thereof was contrary to the RFP and contrary to competition. Item No. 3. This comparison pertained to the evaluation criterion specified in section VIII, subsection F, which provided: Vendor must have a specific comprehensive plan in place to delineate OTETA collection/testing from general collecting/testing. Mr. Bevan dubbed RN's proposal "very weak" and Global's "good" primarily because Global's prototype OTETA form had a transparent drawing of a school bus superimposed over the writing, and its sample form for use by school police officers had a simple, freehand outline of an officer drawn on its face, whereas RN's forms did not have such "icons." Mr. Bevan believed that the pictures of the school bus and police officer would prevent the less intelligent applicants and employees from using the wrong form.4 Although reasonable people might disagree with Mr. Bevan's analysis of the respective merits of the proposals on this criterion, his conclusion was neither arbitrary nor capricious. The problem, however, is that Mr. Bevan was not a member of the committee, and his qualitative judgment went well beyond an even-handed explanation of a technical term or process, or an objective summary of the proposals' details. In other words, as this item clearly shows, Mr. Bevan assumed the role of evaluator. Item No. 4. Mr. Bevan's comparison of "blind sample testing" is interesting because the purpose of focusing on this discrete point, among all others relating to the proposers' price quotes for OTETA testing, seems to have been to blunt the advantage that RN otherwise would enjoy for having offered the lower price. (The comparison effectively says, RN's OTETA test is cheaper, yes, but Global adds value by performing blind samples, whereas RN may not provide this service.) Mr. Bevan could have written, however, with equal accuracy, that RN's price for OTETA testing "includes an adulterant panel" while Global's proposal makes "no mention of adulterant panels," which would have made RN's price quote appear even more attractive as against Global's. RN, however, did not complain about this aspect of Mr. Bevan's analysis; consequently, the undersigned has paid little attention to, and based no ultimate factual determinations or legal conclusions on, this item. Item No. 5. According to the Guide, at page 21, school police officers are required to be tested for eight drugs or classes of drugs. This is called an "8 panel" test or screen. Other employees, in contrast, need only be tested for five drugs or drug classes, using a "5 panel" screen. In his comparison, Mr. Bevan balanced Global's supposed price of $25.00 for police tests against RN's quote of $26.00 for an 8 panel drug screen. Yet, in its Fee Schedule, Global did not specify a separate charge for police tests, 8 panel tests, or 5 panel tests.5 Rather, Global quoted a price of $25.00 for "general employee drug testing." Based on his previous experience with Global, however, Mr. Bevan assumed that Global's charge for police tests would be $25.00, the same as the cost of testing other non-OTETA employees. Mr. Bevan's assumption was dubious at best, even assuming that Global previously had been charging $25.00 for police tests.6 At worst, if Global's historical pricing were ignored (as it should have been, being a fact extrinsic to Global's proposal), Mr. Bevan's assumption was bereft of factual or logical support; it was simply arbitrary. At a minimum, though, Mr. Bevan should have stated, on the comparison chart he provided to the committee, that he was making an assumption in Global’s favor. Without such a qualification, the chart——which purported to compare "apples to apples"——unfairly depicted RN's as unequivocally the costlier proposal on this item, for RN was shown truthfully to have quoted $26.00 for an 8 panel test. Moreover, significantly, Mr. Bevan omitted the fact that RN also had offered a price of $25.00 for an 8 panel screen without an adulterant panel. Thus, not only had Mr. Bevan potentially compared "apples to oranges," he had compounded the problem by making RN's quote for police testing appear higher than it necessarily would need to be. Making the matter worse still, Mr. Bevan represented that Global's price for blood alcohol testing was $25.00 versus $30.00 for the same procedure with RN. Global, however, had not offered to perform blood alcohol tests for $25.00 apiece; it had not quoted any price for such testing. Mr. Bevan assumed that Global's price would be $25.00 based on his past experience with the company. The validity of Mr. Bevan's assumption, again, is questionable;7 at the very least, his assumption should have been disclosed to the committee on the comparison chart. As drafted, without disclosure of Mr. Bevan's Global-friendly assumption, the comparison chart was grossly inequitable to RN, creating the possibly false impression that RN's price for blood alcohol testing was 20% higher than Global's. Finally, in comparing the cost proposals, Mr. Bevan failed to note that Global had quoted a hefty $75.00 surcharge for all "after hour services," meaning tests performed on weekdays between 5:00 p.m. and 8:30 a.m., and anytime on Saturday or Sunday. RN, in contrast, did not similarly propose a 400% price increase for after-hours work, and thus would have been favored by the comparison Mr. Bevan chose not to make. Item No. 6. The issue of collection sites would become crucial. Mr. Bevan's ultimate opinion——that RN had proposed "4 net sites" as against the "10 total sites" offered by Global——was highly subjective and clearly erroneous. To begin, RN's proposal in fact described a total of 17 collection sites——not 14 as Mr. Bevan incorrectly represented. At pages 12 and 13 of its proposal, RN responded sequentially to RFP section V, subsections K (collection sites desired in four quadrants of Miami-Dade County), L (mobile collection required at some Regional Transportation Centers), M (preference for a site near 1500 Biscayne Boulevard), and N (requiring at least one site each in the north and south ends of Miami-Dade County). In response to subsection K, RN proposed to use 14 Quest patient care centers, the locations of which were further described in maps attached to RN's proposal as Appendix B. Three of the 14 Quest centers were represented to meet the preference expressed in subsection M. And RN offered three additional "third party sites" (plainly meaning, in context, sites that were not operated by Quest) to satisfy subsection N. There was and is nothing confusing about RN's response regarding collection sites. No reasonable, fair-minded person, upon reading pages 12 and 13 of RN's proposal, could reasonably conclude that RN was offering a total of only 14 collection sites. Next, four of the Quest sites proposed by RN are located in Broward County. Mr. Bevan decided that these Broward sites should be ignored. The RFP, however, did not prohibit a proposer from offering sites outside Miami-Dade County, and, significantly, RN's proposal satisfied the RFP's technical requirements concerning collection site locations without the Broward sites. Thus, an evaluator (as opposed to Mr. Bevan, who was not one) might have regarded RN's Broward sites either an added value that made RN's proposal more attractive or an unwanted option that neither added to, nor detracted from, RN's proposal. Either way, however, this qualitative decision was not properly Mr. Bevan's to make as a “technical advisor.” Mr. Bevan then subtracted six sites from RN's total because the proposal stated that the sites were available for blood draws only. (In fact, RN's proposal indicated that nine of RN's 17 total sites collected blood samples only; three of the nine are in Broward County and six in Miami-Dade.) Mr. Bevan's decision that "blood only" sites should not be counted was plainly contrary to the RFP, under which blood alcohol testing clearly was a required service. While the evidence showed that the District considers urine collection sites to be much more valuable than “blood only” collection sites, which it views as practically worthless, the RFP nevertheless did not disclose this preference or the relative weight of urine sites versus “blood only” sites. Simply put, the RFP did not allow the evaluators to ignore “blood only” collection sites. At bottom, a fair and balanced comparison (unlike Mr. Bevan's) would have shown that RN had proposed 17 total sites (four in Broward, 13 in Miami-Dade), of which nine (three in Broward, six in Miami-Dade) were "blood only" sites, leaving eight sites (one in Broward, seven in Miami-Dade) that were available for the collection of both urine and blood. An "apples to apples" comparison of Miami-Dade sites available for blood and urine testing would have been Global, ten versus RN, seven. Each evaluator, however, in weighing the relative merits of the two proposals, should have considered RN's ten additional sites——there was no warrant in the RFP for excluding them from the mix à la Mr. Bevan's analysis——and made an independent determination of the value added by those sites. Item No. 7. On this point, Mr. Bevan was unfair to RN——but only a bit. His comparison intentionally drew a distinction between Global's "mobile collection" (the term used in section V.L. of the RFP) and RN's "on-site collection," subtly implying that RN’s proposal might not be responsive, or as responsive as Global’s, to the RFP’s technical guidelines. In fact, however, in its proposal at pages II-2, V-1, V-2, and VIII-1, Global expressly had described the function of its mobile unit as being to provide "on-site" collections; even Global, in other words, considered mobile collection and on-site collection to be fungible concepts. Mr. Bevan's comparison chart thus somewhat unfairly gave Global a gentle semantic boost while concomitantly giving RN a little linguistic gig.8 Standing alone, this comparison would not be noteworthy. Viewed in the light of other, unfair contrasts, however, Mr. Bevan's mobile collection/on-site collection dichotomy takes on a slight hue of partiality.9 Item No. 8. Here, Mr. Bevan made a comparison that was highly unfavorable to RN. One the one side, he portrayed Global attractively as the incumbent vendor that, during a four- year tenure, has not exposed the District to an adverse litigation outcome, and which also provides services to U.S. Sugar (an agricultural concern in South Florida). On RN's side there was only a question mark——nothing more. The meaning was obvious: Global has good credentials, but RN's experience and litigation track record are questionable. This was terribly unfair. RN's proposal included two pages of references listing a number of current clients. Mr. Bevan's explanation at hearing for failing to acknowledge any of RN's references on his comparison chart was that RN's references "were much longer" and would not fit on the page, and that he had "put down what [he] could in the amount of time [he] had." 89. This explanation utterly fails to account for Mr. Bevan's misleading and prejudicial use of a question mark to describe RN's documented experience; it is not credible and is rejected.10 Regarding exposure to lawsuits, Mr. Bevan's comparison was gratuitous. The RFP did not ask for information concerning lawsuits; and the lack of adverse litigation outcomes, while perhaps interesting and even relevant, was not an evaluation criterion. Further, Mr. Bevan was aware of Global's litigation track record not because of information contained in Global's proposal (for such data was not included therein) but because he previously had monitored litigation against the District arising from OTETA testing. Despite relying on facts extrinsic to Global's proposal for this comparison, Mr. Bevan made no attempt to determine whether RN had exposed a client to an adverse litigation outcome and hence had no idea whether RN had or had not done so. Yet, despite the absence of any basis in logic or fact for such a conclusion, the question mark in RN's column (adjacent to the favorable comment about Global) strongly implied that RN either had omitted material information about litigation or disclosed something disturbing or questionable. The unavoidable net effect of this prejudicial and unfair comparison was to put an exclamation point on the fact that Global had served satisfactorily as the incumbent vendor (and thus was a safe choice)——while portraying RN as a pig in a poke (and hence a gamble). Item No. 9. Mr. Bevan shone a flattering light on Laboratory Corporation of America ("LCA," the laboratory used by Global)——only one glitch in four years!——while labeling Quest Diagnostics ("Quest," used by RN) "questionable." This was problematic for several reasons. First, the RFP did not specify a preference for any particular laboratory. Second, Mr. Bevan's judgment was not based on the respective proposals but on his personal experiences. He had been pleased with LCA's services and preferred that the District continue to do business with that laboratory. But, as the comparison chart pointedly neglected to mention, Mr. Bevan's negative opinion of Quest was based on just one incident in which Quest had been slow in reporting the results of a retest that had been requested by an individual who had initially tested positive at LCA and requested that Quest perform the confirmatory test.11 Third, the judgment expressed on the relative merits of the proposers' laboratories was plainly qualitative; in other words, Mr. Bevan was evaluating the proposals, which was not properly his role, for he was not a de jure member of the committee. Item No. 10. Mr. Bevan's representation to the committee that LCA performed adulterant testing at no cost to the District was not based on Global's proposal, which neither mentioned adulterant testing nor quoted a price for such service, but on his experience with Global. (Incidentally, neither Mr. Bevan's testimony, nor any other evidence, persuasively established that Global or LCA had, in fact, been performing adulterant testing. Rather, the District’s employees assumed that such was the case——as it may, or may not, have been.) Aside from the impropriety of relying on facts extrinsic to Global's proposal, Mr. Bevan's contrast with RN's proposal ("TestSure is broken out as a separate entity") was both incorrect and incomplete, producing a false, "apples to oranges" comparison. First, as four pages of descriptive information included in RN's proposal made clear, TestSure is Quest's trademark for its adulterant testing protocol, which Quest considers a "breakthrough in technology for the industry." Contrary to Mr. Bevan's statement, TestSure is not a "separate entity." Thus, the apparently-intended implication that RN's price was higher because it was proposing to use a “separate entity” (in addition to Quest) for adulterant testing was untrue. Second, the information provided by RN concerning TestSure, rather than being a negative strike against RN's proposal, as Mr. Bevan's comparison suggested, was (or should have been) helpful in evaluating RN's proposal, a plus. While the committee certainly could have chosen to discount or ignore Quest's glowing review of its own product as puffery, the fact was that while Global's proposal said nothing about adulterant testing, RN had submitted some information on the subject. Finally, Mr. Bevan did not specify that his remark about Global's supposed offer to provide adulterant testing at "no charge" was merely an assumption that, for all that appears in Global's proposal, may or may not be true. This omission was especially unfair to RN because RN had stated explicitly in its cost proposal that an additional dollar would be charged for an adulterant panel——and that the District could save the dollar by electing not to have the panel performed on general tests. An impartial summary would have acknowledged RN's prices for general tests, both with and without an adulterant panel, and noted that Global's proposal was silent as to whether its quote of $25.00 for general testing included an adulterant panel. To state unqualifiedly that Global would provide adulterant testing for free, when its proposal said nothing of the sort, was patently inequitable. The First Evaluation and Recommendation After meeting for two hours on April 11, and having considered Mr. Bevan’s comparison chart, the committee voted to recommend that the contract be awarded to Global. In the minutes of the meeting, it was reported that [b]oth Proposals were evaluated according to the criteria outlined in the proposal. A comparison was made of services provided, locations for testing, cost, and other requirements. The committee recommended that Global MRO be awarded the contract. In addition to providing a reasonable fee schedule, the locations for drug testing, and the prior outstanding service provided by Global MRO, supports the committee’s decision. RN timely protested the intended award, the Board referred the matter to DOAH, and a final hearing was scheduled for July 30, 2001. Before the final hearing, however, the Board determined that the April 11, 2001, meeting might have occurred in violation of the Sunshine Law. Accordingly, the final hearing was postponed to enable the committee to reconvene in a public meeting for the purpose of reevaluating the proposals in compliance with the Sunshine Law. The Second Evaluation and Recommendation The committee met for a second time on September 4, 2001, pursuant to a prior written notice of proceedings. The September 4 meeting was open to the public. Although each of the original members of the committee was asked to return, two of them——Mr. Diaz and Ms. Freeman——were unable to attend the second meeting. In their places appeared subordinates as “representatives,” Pat Parham for Mr. Diaz and Enrique Sacasa for Ms. Freeman. Four members of this committee had no direct involvement in or experience with the drug screening services that were the subject of the contract for which proposals had been solicited. Of the five, only Ms. Kidney was knowledgeable about the program areas and service requirements for which contractual services were being sought. Once again, staff persons were present, ostensibly to answer technical questions. Mr. Bevan and Mr. Conde returned. With them this time were Barbara M. Moss, District Director, Office of Professional Standards; Brenda Miles, Executive Director, Professional and Technical Staffing; and Linda Cantin, Supervisor, Division of Procurement Management. Mr. Bevan did not distribute his comparison chart at the committee’s public meeting and made only a couple of comments there in response to questions. After conferring, the committee found both proposals to be responsive and voted unanimously to recommend that Global be awarded the contract. In the minutes of the September 4, 2001, meeting, it was reported that [t]he committee agreed that both proposals were good, and clearly stated an understanding of the work to be performed. There were concerns expressed, however, regarding [RN’s proposal] in reference to the location and convenience of collection sites. . . . . [Global] was selected because of the larger number of collection sites for urine that are available and the locations of these sites throughout various parts of the county, which would be of convenience to applicants and employees, and its experience. RN’s Protest By letter to the Board’s counsel dated September 6, 2001, RN amended its pending protest of the first recommendation to challenge the second proposed award with a newly-revised statement of grounds.12 As bases for relief, RN asserted that Global’s proposal was materially non-responsive for failure to comply with several of the RFP’s technical requirements; it also alleged that the committee’s evaluation had been flawed in several respects. Ultimate Factual Determinations Certain Ultimate findings of fact have been rendered below under the heading “Conclusions of Law.” This has been done for organizational convenience and for clarity of analysis. Accordingly, the findings announced in paragraphs 114, 120, 130, 134, 156, 159, 161-64, 167, and 169, infra, are hereby incorporated as Findings of Fact, as if fully set forth in the instant section of this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order rescinding the proposed award to Global. DONE AND ENTERED this 4th day of February, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of February, 2002.
The Issue The issue for determination is whether just cause exists for termination of Respondent’s employment.
Findings Of Fact Respondent is Henry Harrison, an employee of Petitioner for approximately 16-17 years, the last 10 years as a plumber. Respondent’s job performance and competence are not at issue in this proceeding. On June 17, 1998, while operating a vehicle owned by Petitioner, Respondent was the victim of an accident when another driver ran a stop light and “broad-sided” him. Respondent was not at fault. Respondent’s supervisors, including his immediate supervisor, came to the scene of the accident. Respondent did not appear to these people to be under the influence of alcohol or drugs. Respondent worked the remainder of his shift. The next morning, June 18, 1999, Respondent was directed by Petitioner’s personnel to go to the First Physicians Clinic as a result of discomfort experienced by Respondent the night before. Respondent was aware that he would be asked by Clinic personnel to give a urine sample. Respondent waited for approximately two hours at the Clinic, surrounded by other people, where he handled newspapers, magazines and furniture in the common waiting room. Numerous other persons in the facility that morning were there for the purpose of drug testing. At approximately 10:00 a.m. on June 18, 1999, Laura Byrd, an employee of First Physicians, came to the waiting room and summoned Respondent. Respondent followed Byrd to a counter located in a hallway of the facility adjacent to the restroom used for obtaining urine specimens for drug testing. Bryd asked Respondent to sign a drug-testing chain-of-custody form and to initial labels attached to the form which were to be used to seal the specimen container. Respondent complied with Byrd’s request for signature and initialing. The form stated: I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. At the time of his signing and initialing, Respondent had not yet provided a specimen nor observed any subsequent transfer of the specimen or sealing of specimen containers. Following Respondent’s initialing and signing of the forms, Byrd picked up a “clean catch” container utilized at First Physicians for collection of urine specimens during physical exams and directed Respondent to a restroom to provide a sample of his urine. The “clean catch” container was obtained from the counter in the hallway and was not sealed or packaged in any way. Respondent was not directed by Byrd to wash his hands before providing the sample, instead she directed that he was not to turn on any water in the restroom prior to providing his sample. Respondent provided a urine specimen in the “clean catch” container, vacated the restroom and gave the container to Byrd. She attached a small thermometer strip to the container containing Respondent’s urine sample. Byrd noted the temperature of the specimen, placed the container on the counter in the hallway, and directed Respondent to follow her to the examining room. When Respondent told Byrd that he wanted to wash his hands, she told him that he could do this in the examining room. Byrd left Respondent in the examining room where he remained until the physician arrived to assess Respondent’s condition. Respondent never saw his urine specimen again and did not observe it being transferred from the “clean catch” container to any other containers. He did not observe the previously initialed paper seals being affixed to any container. On July 14, 1998, Petitioner received a report from its Medical Review Officer (MRO) stating that Respondent’s urine specimen had tested positive for marijuana. The MRO did not contact Respondent for an explanation, i.e., whether he was taking medication or had any explanation for the positive test result. The MRO, contrary to requirements of Rule 59A- 24.008(7)(a), Florida Administrative Code, did not contact Petitioner with directions that Respondent contact the MRO. Notably, no efforts to contact Respondent was made during the period June 18, 1998, through August 6, 1998, although Respondent was residing in a trailer at a school site providing security services for Petitioner. Additionally, Respondent was in regular contact with Petitioner's personnel in regard to medical treatments he was receiving as a result of his injury. It is undisputed that Petitioner's employees would have known how to get in touch with Respondent to direct him to contact the MRO, had such contact been requested. Instead, Petitioner’s personnel finally notified Respondent of the positive test result on August 6, 1998, when it provided him a notice of proposed disciplinary action. That notice included a copy of the July 14, 1998 drug test report. On August 11, 1998, armed only with the positive test result, Petitioner terminated Respondent’s employment for violation of the Drug-free Workplace policy and use of illegal drugs while on duty. The only evidence of illegal drug use in Petitioner’s possession was the positive test result. No evidence was adduced at the final hearing of any witness observation of Respondent that he had ever been observed exhibiting behaviors suggesting that he was under the influence of, or using, illegal drugs. Respondent’s testimony in total at the final hearing was candid, direct, and creditable. He did not use illegal drugs, specifically marijuana; he and no one in his home or among his social acquaintances to his knowledge used marijuana or any illegal drugs. The drug test results disclosed an extremely low level of cannaboids present (60ng/ML, where the cutoff is 50ng/ML; 28ng/ML, where the cutoff is 15ng/ML on the confirmation test). Byrd, the employee of First Physicians who collected Respondent’s specimen, had no specific recollection at the final hearing of collection of Respondent’s specimen. Instead, Byrd recited the procedure that she normally followed in obtaining drug test specimens. According to Byrd, her regular collection procedure did not include affixing her own initials to the seal placed on the specimen bottles for transport to the laboratory for analysis, nor was she aware of a requirement to do so. Byrd testified that her regular procedure included having the specimen donor sign the chain-of-custody document and initial the specimen seals before the time when the seals are placed on specimen bottles. Following termination and upon legal advice, Respondent sought a voluntary drug test at another collection facility. The results of that drug test from a specimen collected on August 17, 1998, were negative with regard to disclosing the presence of marijuana or any other illegal substance in Respondent’s body. Respondent’s testimony regarding procedures followed at First Physicians was further bolstered by the testimony of another Petitioner employee, Joe McCormick. McCormick had also previously been sent to First Physicians for drug testing by Petitioner in conjunction with an injury he had received on the job. McCormick confirmed that he was treated similarly to Respondent; he was provided a “clean catch” container that he did not observe to come from a sealed package, he was not present when his specimen was transferred from the “clean catch” container to any other vessel for shipment to the laboratory, and he did not observe the paper seals he had earlier initialed being placed on any specimen container. McCormick also was directed and did sign the chain-of-custody form and initial the paper sealing strips prior to providing a urine specimen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Notice Of Disciplinary Action be dismissed and that Respondent be reinstated to his former position without diminution or loss in pay or benefits. DONE AND ENTERED this 15th day of February, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1999. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation. Respondent was aware that DDMC engaged in advertisements to solicit patients. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available. In the event the Doppler showed no problem, Respondent would not recommend additional testing. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO CASE NO. 90-6331 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted. Paragraphs 8 and 9 are accepted. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted. Paragraph 11 is rejected as contrary to the weight of the evidence. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence. Paragraph 18 is accepted. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 and 23 are accepted. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence. Paragraph 31 is accepted. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 5 are accepted. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges. Paragraphs 8 through 10 are accepted. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted. Paragraphs 12 through 15 are accepted. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence. COPIES TO: Richard A. Grumberg Sr. Medical Atty. DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Grover C. Freeman 4600 West Cypress, Ste. 500 Tampa, FL 33607 Dorothy Faircloth Executive Director DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue to be determined is whether Respondent failed to maintain good moral character, in violation of section 943.1395(7), Florida Statutes (2011) and Florida Administrative Code Rule 11B-27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent has been a certified corrections officer. As a certified corrections officer employed by the Department of Corrections, Respondent was subject to random drug testing. On or about December 9, 2011, Respondent was selected for random drug testing and directed to provide a urine sample. He reported to Labcorp in Pensacola, Florida, to provide a urine specimen for testing. Respondent gave the specimen by urinating in a specimen cup provided to him by Juston Day, an employee of Labcorp. Respondent delivered the cup containing his urine to Mr. Day, who read the temperature strip on the cup, sealed the cup, and had Respondent initial it and sign the chain of custody form. Mr. Day labeled Respondent's specimen with his social security number, and assigned to the specimen a unique specimen number, in this case number 0758562291, which would not be used for any other specimen. The chain-of-custody form was then signed and dated by Mr. Day. The container with Respondent's urine specimen was sealed with a label that prevented the specimen from being opened without breaking the seal. Mr. Day packaged Respondent's urine specimen in a bag which was also sealed and labeled. Mr. Day put the bag with Respondent's urine sample in an area for pick up by Labcorp courier. The specimen was transported to a Labcorp facility in Southaven, Mississippi. The specimen was assigned a unique laboratory accession number, which was the same as the accession number used when the sample was drawn. The urine sample supplied by Respondent was received by and analyzed by Labcorp, and the report generated is for the sample provided by Respondent. Labcorp maintained the required chain-of-custody procedures in handling Respondent's specimen. The package received by Labcorp was unsealed by laboratory personnel qualified to receive it and the specimen was subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. The initial test performed by Labcorp is an immunoassay test used to screen all samples. Any sample that is a presumptive positive by that screening method is then tested by a confirmatory method, i.e., gas chromatography/mass spectrometry. Respondent's urine sample tested presumptive positive for marijuana metabolite, and the confirmatory test results were consistent with those obtained for the screening test. The final report for marijuana metabolite was reported at a concentration of 48 nanograms per milliliter. The cutoff for a positive result for marijuana metabolites in the immunoassay screening test is 50 nanograms per milliliter. The cutoff for the confirmatory test is 15 nanograms per milliliter. The urine specimen also indicated the existence of other drugs of Respondent's system. However, those results were consistent with therapeutic levels, as opposed to abusive levels, and were below the relevant cutoff for those substances. The test results were reviewed by Dr. Neil Dash, M.D., the Medical Review Officer for Doctors Review Service. A physician in Dr. Dash's office then called Respondent with the results and asked him if there was any substance he was taking that could contribute to a positive result. He reported no such substance. Dr. Dash then reported the ultimate results of the testing to the Department of Corrections. Respondent claims that when he was given the cup for collection of the urine specimen, it was already open, and that contamination of the container must be the basis for the positive test. However, the Chain of Custody Form that Respondent signed states in part: I authorize the collection of this specimen for the purpose of a drug screen. I acknowledge that the specimen container(s) was/were sealed with tamper-proof seals in my presence and that the information provided on this form and the labels affixed to the specimen container is correct. I authorize the laboratory to release the results of the test to the company identified on this form or its designated agents. Respondent testified at hearing that he had been tested many times before, but had never been given an open container before. However, he did not indicate that he questioned the testing procedure at the time, nor was there any evidence that he reported any perceived irregularity to Dr. Dash or any of his staff. His testimony in this regard is not credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a final order finding Respondent in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a corrections officer be suspended for a period of 90 days, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B-27.005(7)(c). DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2012. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 lintoneason@fdle.state.fl.us Anthony Wayne Hatcher Jennifer Cook Pritt, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue In re: Case No. 94-0083 Whether disciplinary action should be taken against the Respondent's license to practice psychology, by violating of Section 490.009(2)(s), Florida Statutes, by undertaking activities for which the licensee is not qualified by training, experience, or licensure. As to DOAH Case No. 96-00819 Whether disciplinary action should be taken against Respondent's license to practice psychology by violating Section 490.009(2)(s), Florida Statutes, by having failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience (2 counts). Whether Respondent violated Section 490.009(2)(q), Florida Statutes, by violating provisions of Chapter 490, Chapter 455, or any rules adopted pursuant thereto. Whether Respondent violated Section 490.009(2)(v), by failing to maintain in confidence a communication made by a patient or client in the context of such services, except by written permission or in the face of a clear and immediate probability of bodily harm to the patient or client or to others. Whether Respondent violated Section 490.009(2)(m), Florida Statutes, by soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.
Findings Of Fact as to Case No. 94-0083 Respondent is a psychologist, licensed in the State of Florida with license number PY 0002281. Respondent does not hold a license in Florida as a health care provider. Psychologists are involved in health psychology and behavioral medicine. Psychologists frequently treat disorders such as obesity, smoking, hypertension, coronary prone behavior patterns, cancer, and chronic pain. It is appropriate for a psychologist to be involved with the treatment of these disorders, as a psychologist. It is not routine for a psychologist to act as a physician's assistant. Respondent was the owner and Director of Associated Health Professionals (AHP) which operated in the 1980's and early 1990's in Maitland, Florida. It provided interdisciplinary health care to patients, including general medical, psychological services and an allergy clinic. In an allergy practice, the physician is the only person who orders allergy tests, determines which tests need to be performed, reviews test results, determines the course of treatment, and determines which medications to prescribe. Hormones such as testosterone, estrogen, and progesterone always require a prescription by a physician. As a psychologist, Respondent ran a specialized allergy clinic, yet he failed to hire physicians with special training in allergies. The Respondent functioned in multiple roles by acting as a medical assistant to the physicians in the allergy clinic and by providing therapy. Patients frequently reported to AHP on weekends for allergy testing, glucose tolerance tests, EKGs, and blood work. If the tests were not ordered during the week, Respondent ordered them to be performed on the weekends. AHP sent blood work to an outside laboratory. When test results came in, they were given to the medical director. Respondent also reviewed them if they were allergy related. Staff meetings were held at AHP once or twice weekly in order to discuss current patients or administrative business. Respondent typically conducted these meetings. The medical director did not instruct the technicians regarding the treatment of each patient. The treatments were dictated by protocols which had been put into place by a Dr. Hoover, a prior Medical Director at AHP. Once allergy testing was performed, treatment was dictated by these protocols. Once a patient was established and treatment was begun, the staff just followed protocol. They did not confer with the doctor after each patient visit. If there were no physicians on duty at AHP on Saturdays, the clinic had a phone number of a physician who was on call for them. Jack H. Van de Car, D.O. is an osteopathic physician who held the position of Medical Director at AHP for approximately 16 months from December 1987, through May 1989. Dr. Van de Car provided medical supervision of the allergy clinic. However, there were treatment protocols in place for the allergy clinic when he arrived at AHP. Dr. Van de Car's training in allergy consists of seminars, six weeks of training during medical school in 1963, and general medical practice. Only in unusual cases would Respondent or Dr. Van de Car alter the "standard" treatment plan dictated by the protocols. Dr. Van de Car would examine allergy patients and then refer them to the allergy lab. He did not test patients for allergies. Respondent was the Director in charge of AHP. He was in the allergy lab on a daily basis. Respondent and Dr. Van de Car reviewed allergy test result summaries. Dr. Van de Car did not review results of all allergy tests which were performed in the clinic. Respondent would interpret allergy test results and offer suggestions as to how they should be interpreted. A form, signed by Dr. Van de Car, appoints Respondent as Dr. Van de Car's medical assistant. This form would entitle Respondent to perform the enumerated procedures at Dr. Van de Car's direction while in the allergy lab. Dr. Van de Car was the only person at AHP licensed to issue prescriptions. On two occasions, Dr. Van de Car found that prescriptions had been renewed in his absence by Respondent. Despite the fact that these were not new prescriptions, Dr. Van de Car was concerned because he would not have renewed them himself but would have chosen to try a new prescription. Dr. Van de Car met with the Respondent and asked him not to repeat that procedure again. Respondent performed procedures which were not ordered by Dr. Van de Car and which would not have been ordered by him. Dr. Van de Car discontinued his practice at AHP in May 1989, and was replaced by William Rick, who he believed to be licensed in Florida as a physician. Andrew Feldman, D.O. was hired by Respondent as the Medical Director for AHP sometime in 1990 and remained until the summer of 1992. Dr. Felman had no rotation in allergy and no internship. He had taken approximately four to five courses in allergy in medical school. Dr. Felman is certified in Family Practice. Dr. Feldman normally did not report to the clinic on Saturdays. Respondent was not appointed as Dr. Feldman's medical assistant in the allergy lab. Respondent continued to work in the allergy lab on a regular basis. Solomon Klotz, M.D., is a physician specializing in allergy and clinical immunology. He has practiced in Florida since 1945. Dr. Klotz trained Respondent in immunology and allergies and at one time permitted Respondent to perform a study on "end point titration" in his clinic. However, Dr. Klotz was not comfortable with this method of treatment as he was unable to determine honestly if the treatment was producing a purely placebo effect or whether it was truly scientific. When Dr. Klotz's son, a physician, and Stephen Rosenburg, M.D., an associate in the practice, both expressed discomfort with Respondent's study, Dr. Klotz discontinued the study. Dr. Klotz himself ceased utilizing end point titration as a treatment method in favor of more proven methods. Lawrence Siegel, M.D., Ph.D., is an allergy physician who has been licensed in Florida since 1981. He has a Ph.D. in biochemistry and immunology. Dr. Siegel is board certified in pediatrics, allergy and immunology, and diagnostic laboratory immunology. He maintains a private practice which is devoted entirely to allergy patients. Dr. Siegel testified as an expert in the practice of medicine and allergy and immunology. Dr. Siegel reviewed Respondent's chart for Scott Donley. Dr. Siegel recounts Scott Donley was treated at AHP using the method known as "end point titration." In this method, after a patient has had initial testing to determine what he or she is allergic to, the person doing the testing takes every single individual allergen the person was tested for and tries to determine at what point the test changes from positive to negative. This technique is no longer used by most Florida allergists, as it involves a lot of testing and needles. In 1981, the American Academy of Allergy published a statement regarding end point titration. It stated that end point titration has no plausible or immunologic basis when used as a method of treatment and diagnosis of allergic disease. Four controlled clinical studies showed this method to be ineffective. The use of end point titration is not commonly used in the State of Florida, but its use is not below the standard of care for patients in Florida. Even if a person worked under the supervision of an allergist, that person could not legally practice medicine, order tests, or interpret them. The performance of a skin test can be left to the medical technician, but the interpretation should be done by a physician and noted in the chart. Scott Donley was first presented to Associated Health Professionals (AHP) in 1988 during his senior year of high school for treatment of allergies. Scott was a golfer, and was having a problem with allergies on the golf course. At the time, he was the #1 seed on his high school golf team. Scott's mother, Patricia Donely, was referred to the Respondent and the clinic by the owner of a health food store in Deland, Florida. At his first appointment, Scott was seen by Jack Van de Car, D.O. who gathered a patient history and performed a physical examination. Dr. Van de Car examined Scott at this time and referred him to the allergy clinic. After his first appointment, Scott saw Dr. Van de Car for chiropractic manipulations and electric stimulation treatment. He also prescribed medication for allergy, pain, and muscle relaxants. Generally, Scott saw the AHP staff and Respondent. On a typical day, Respondent would come into the room, review Scott's chart for the previous day, and dictate the day's treatment. It was Respondent who discussed Scott's allergy treatment with him. It was Respondent who corresponded with Patricia Donley regarding her son's treatment. If she had questions, Respondent would answer them for her. Respondent was the primary treating health care provider of Scott Donley. Scott underwent a series of procedures known as "end point testing" or "end point titration." He tested positive on 132 out of 136 allergens. Scott was placed on a very strict diet and was given vitamins and injections of progesterone, testosterone and estrogen. He was also instructed to take Vitamin E. Scott's diet prohibited him from eating regular bread. He ate millet bread and millet muffins. Scott lost 35 pounds due to his change in diet. At one point, the Respondent advised Mrs. Donley to wash Scott's food in bleach; however, she refused. At first, Scott presented to AHP on what would be considered a normal appointment schedule. When his condition did not improve, Scott and his parents suggested to Respondent that Scott withdraw from his senior year of high school in order to report to AHP on a daily basis for testing. Scott withdrew from school. For a period of four or five months, Scott reported to AHP six days a week for eight hours a day in order to undergo end point testing. Occasionally Scott was hooked up to a black box referred to as "the Lollapalooza." This was a black box with clips which attached to Scott's earlobes. Electrical current was administered through the clips. Soon Scott was taught how to inject himself. Scott was ordered to give himself multiple injections daily. On at least two occasions, Scott suffered allergic reactions which required the insertion of an I.V. On one of these occasions, Scott's father, Mark Donley, was summoned to AHP. Mr. Donley was told that Scott had reacted to one of his medications and that they were flushing out his system. Mr. Donley witnessed Respondent inserting an I.V. into his son's arm and giving instructions to Kelly Luther, the nurse. Scott came to AHP on Saturdays for more end point testing. On occasion, Scott also received massage therapy from the Respondent. Scott's condition deteriorated over time. Scott described his condition as a general weakening. Scott began to experience arthritis-like symptoms, with stiffness in the mornings and swelling in his hands. Scott was forced to wear a mask on the golf course due to his allergic reactions. During this period of time, Scott sought psychotherapy from the Respondent, on an occasional basis, due to the severe diet and changes in his social life. When Scott's condition began to worsen, Mrs. Donley expressed an interest in getting a second opinion. Respondent did not encourage her to do so. Scott remained a patient at AHP from November 1988, until December 1989. When Scott's condition still did not improve, Scott was taken to Shands Hospital in Gainesville, Florida for an evaluation. The physician at Shands diagnosed Scott as being free of disease. He ceased Scott's medications and vitamins and took him off of the special diet. Respondent criticized Shands Hospital in a letter to Patricia Donely. Scott's physical condition gradually improved and he is currently employed as an Assistant Golf Professional in Jacksonville, Florida. Respondent's treatment records for Scott Donley were predominately medical. There were no treatment goals or plans, nor any progress notes of therapy. There should have been two patient records, one for medical treatment and one for psychotherapy. Billing records indicate physician visits were performed, but the record does not contain any physician notes. Scott's allergy treatment at AHP was below the standard of care in the State of Florida. There was very little physician involvement in the case. There was no physician examination at each patient visit. There was insufficient physician documentation as to testing and treatment performed between doctor's visits. There was no evaluation of whether the treatment was or was not working, just more and more testing. There was no discernible treatment plan or goals. Respondent denies diagnosing treatment for Scott Donley and denies ever prescribing medication for patients. He also states that he never started a psychotherapy chart on Scott Donley. His denial of diagnosing treatment for Scott Donley is not credible. Respondent practiced beyond the scope of his license as a psychologist in his treatment of Scott Donley.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board find the Respondent guilty of violating Section 490.009(2)(s), Florida Statutes (1 count), in regard to DOAH Case No. 94-0083; not guilty as to Counts I and III in DOAH Case No. 96-0819; guilty of violating Sections 490.009(2)(q), Florida Statutes, Section 490.009(2)(v) Florida Statutes, and Section 490.009(2)(m), Florida Statutes (Counts II, IV and V) in Case No. 96-0819. It is further RECOMMENDED, as punishment therefore: The license of George Von Hilsheimer, Ph.D., be suspended for a period of six months followed by a period of probation of one year; that he pay an administrative fine of $2,000, pay the costs of the prosecution of this matter, and that the Board impose such other and necessary conditions on Respondent's probation as they deem necessary and appropriate. DONE AND ENTERED this 18th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997. COPIES FURNISHED: Joseph Alexander Scarlett, III, Esquire 208 West Howry Avenue DeLand, Florida 32720 Nancy M. Snurkowski, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Kaye Howerton, Executive Director Agency for Health Care Administration Board of Psychology Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
