Findings Of Fact The Parties. The Respondent, the Department of Health and Rehabilitative Services, is a state agency charged with the responsibility for administering Florida's Medicaid program pursuant to Chapter 409, Florida Statutes. The Petitioner, Conval-Care, Inc., is a home health care agency of the State of Florida. Conval Care was created by Inez Browning in 1983. Conval Care is a Small Business Party. Conval Care has never employed twenty-five or more full-time employees. Conval Care's net worth has never equaled or exceeded $2,000,000.00. Medicaid Services Provided by Conval Care to Adult Congregate Living Facilities. In 1988, Conval Care qualified as a provider of medical services reimbursable pursuant to Florida's Medicaid program. Subsequent to becoming a Florida Medicaid provider, Conval Care began providing home health services to, among others, residents of three adult congregate living facilities (hereinafter referred to as an "ACLF"). Conval Care received Medicaid reimbursement for the services it provided to residents of the three ACLF's it serviced. Department Concerns About Services Provided to Residents of ACLFs by Home Health Care Agencies. Prior to May 1, 1991, various employees of the Department discussed various issues concerning the appropriateness of Medicaid reimbursement for services provided by home health care agencies to residents of an ACLF. At no time relevant to this proceeding did the Department conclude that under no circumstances would it be appropriate to make Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF. To the extent that the Department had unresolved legal questions concerning the appropriateness of paying Medicaid reimbursements for services provided by a home health care agency to residents of an ACLF, it would not be reasonable for it to take action against Conval Care, or any other home health agency, based upon those unresolved legal questions. The evidence in this case, however, failed to prove that the actions which the Department ultimately took against Conval Care were based upon unresolved legal questions being discussed by the Department. The Department's Medicaid Program Integrity Office. The Department's Medicaid Program Integrity office is charged with responsibility within the Department for overseeing the integrity of the Florida Medicaid program. See Section 409.206, Florida Statutes (1989). The Department's Medicaid Program Integrity office carries out the Department's responsibility for review of the Medicaid program, including fraud investigations. Rule 10C-7.060(3), Florida Administrative Code, provides the following: Any suspected criminal violation or fraudulent activity by any provider shall be referred by the department to the Medicaid Fraud Control Unit in the Office of the Auditor General for investigation. Rule 10C-7.060(5), Florida Administrative Code, provides the following: (5) The determination that a violation has occurred is a function of the Medicaid Program Integrity Office. The determination shall be based upon investigations completed by that office or relevant information from other offices and agencies. Based upon Rule 10C-7.060(5), Florida Administrative Code, the Department is charged with the ultimate responsibility for determining if a violation of Medicaid law has occurred. Therefore, it would be unreasonable for the Department to take action against a Medicaid provider based upon the conclusions of any other agency without independent evaluation by the Department. Rule 10C-7.060(5), Florida Administrative Code, also requires that the Department, in determining whether a violation of Medicaid law has occurred, base its decision on its own investigation or "relevant information from other offices and agencies." The Department is, therefore, required to consider information provided to it by the Medicaid Fraud Control Unit of the Office of the Auditor General. Rule 10C-7.060(4), Florida Administrative Code, provides the circumstances pursuant to which the Medicaid Program Integrity office may impose administrative sanctions on providers of Medicaid services in Florida. The specific administrative sanctions which may be imposed, and the procedures to be followed, in imposing sanctions are set out in Rule 10C-7.060, Florida Administrative Code. "Guidelines for Administrative Sanctions" are set out in Rule 10C-7.063, Florida Administrative Code. The Medicaid Fraud Control Unit. The Medicaid Fraud Control Unit (hereinafter referred to as "Medicaid Fraud"), is a part of the Florida Office of the Auditor General. See Section 409.2664, Florida Statutes (1989)(repealed effective June 5, 1991, Chapter 91- 282, Laws of Florida). Section 409.2664, Florida Statutes (1989), provided, in pertinent part, the following: . . . the Auditor General shall: Investigate the possible criminal violation of any applicable state law pertaining to fraud in the administration of the Medicaid program, the provision of medical assistance, or the activities of providers of health care under the state Medicaid program. . . . . Refer to the Department of Health and Rehabilitative Services all potential noncriminal abusive activities. Refer to the Department of Health and Rehabilitative Services for collection all instances of overpayment, discovered during the course of investigation, made to any providers of health care under the state Medicaid program. . . . . Pursuant to Section 409.2664, Florida Statutes, investigative reports prepared by Medicaid Fraud are routinely referred to the Department's Medicaid Program Integrity office. The Medicaid Program Integrity office routinely relies on investigative reports prepared by Medicaid Fraud. The Investigation of Conval Care. Ellen Williams, a medical health care program analyst for the Medicaid Program Integrity office, first became aware of Conval Care in January or February, 1990, while Ms. Williams was reviewing a "Provider Top 100 Report." A "Provider Top 100 Report" is a report prepared by the Department on a routine basis which lists the top 100 providers of Medicaid services based upon the amount of Medicaid funds a provider is paid. The Provider Top 100 Report reviewed by Ms. Williams in early 1990 listed Conval Care as the top home health care services' provider for the first time. Ms. Williams had not seen the name Conval Care before on the list. Ms. Williams was curious about why Conval Care had appeared on the list. Ms. Williams decided to look into the matter further. Ms. Williams subsequently learned that Medicaid Fraud was involved in an investigation of Conval Care. Ms. Williams, therefore, discontinued her investigation of Conval Care. Ms. Williams referred the matter to Medicaid Fraud in March, 1990, as contemplated by Section 409.2664, Florida Statutes, and Rule 10C-7.060(3), Florida Administrative Code. The May 1, 1991, Investigative Report. At some time after May 1, 1991, Ms. Williams received an unsigned Investigative Report dated May 1, 1991, from Medicaid Fraud (hereinafter referred to as the "Investigative Report"). Respondent's exhibit 1. The Investigative Report includes conclusions concerning various possible violations of Medicaid laws which may have been committed by Conval Care. In support of those alleged violations, the Investigative Report also includes fairly substantial factual bases for the violations. The evidence in this case failed to prove that the facts recited in the Investigative Report, if proved to be true, would not support a finding that Conval Care had committed serious violations of various Medicaid provisions. In particular, the Investigative Report concludes that Conval Care has served patients, who reside in and out of ACLFs, that were not "homebound" as required by the Medicaid providers' manual. The Investigative Report also concludes that Conval Care provided services which were rendered "while no valid signed physician's authorization was in effect . . . " as required by the Medicaid providers' manual. Further, the Investigative Report concludes that Conval Care provided services which were not "medically necessary". The facts relied upon by Medicaid Fraud to reach these conclusions are set out in the ten page Investigative Report. The Investigative Report concludes that Conval Care improperly received $591,082.00 from Medicaid for services to individuals (ACLF residents and non-ACLF residents). It also concludes that $241,582.00 of the $591,082.00 were improperly received for services that were rendered while no valid signed physician's authorization was in effect and the remaining $349,500.00 was improperly received for services that were not "medically necessary". The Department's Reliance on the Investigative Report. Based upon a review of the Investigative Report, Ms. Williams applied the provisions of Rule 10C-7.063, Florida Administrative Code, to determine the appropriate administrative sanction to be imposed on Conval Care. The weight of the evidence proved that the Department properly applied the provisions of Rule 10C-7.063, Florida Administrative Code. Based upon Ms. Williams determination of the appropriate administrative sanction to be applied to Conval Care, Ms. Williams prepared a draft of a letter which she recommended the Department send to Conval Care. The draft letter prepared by Ms. Williams and the Investigative Report were reviewed by appropriate officials of the Department. The draft letter was ultimately approved. Ms. Williams, and the Department's, only basis for the action the Department took against Conval Care was the Investigative Report. Ms. Williams also relied on an investigation of what appeared to be a similar home health care agency named Underhill Personnel Services (hereinafter referred to as "Underhill"). Underhill, another home health care agency, was providing home health care services to residents of ACLF's. The services being provided by Underhill were similar to the services reported in the Investigative Report. Ms. Williams, however, had no independent basis for concluding what services Conval Care was, or was not, providing to ACLF's except as reported in the Investigative Report. The Investigative Report was an interim report. The Department was informed in July, 1991, that Medicaid Fraud's investigation of Conval Care was still ongoing. The evidence failed to prove that the conclusions recited in the Investigative Report, however, were of an interim nature or that the Department should have waited to act on the facts related in the Investigative Report. The Termination Letter. The draft letter prepared by Ms. Williams and approved by the Department was dated May 20, 1991, was signed by John M. Whiddon as Chief of the Department's Medicaid Program Integrity office and was sent to Conval Care (hereinafter referred to as the "Termination Letter"). The Termination Letter informed Conval Care that its participation in the Medicaid program in Florida was being terminated "for violation of federal and state laws and regulations respecting the Medicaid program, effective on the date of your receipt of this letter, subject to your right of appeal as discussed below." The Termination Letter also informed Conval Care that the Department was seeking reimbursement of $591,082.00 in Medicaid funds paid to Conval Care which the Department believed were for services that did not constitute "home care" as defined in Section 11.3 of the Medicaid Home Health provider handbook. The Termination Letter further informed Conval Care of the following: $349,500.00 (of the $591,092.00) had been paid to Conval Care for services that were not "medically necessary" as required by Rules 10C- 7.044(1)(e) and (i), (5)(a)3 and (14), Florida Administrative Code; $241,582.00 (of the $591,092.00) had been paid to Conval Care for services that were rendered while no valid signed physician's authorization was in effect in violation of Rules 10C-7.044(1)(e) and (i) and (5)(a)1-2, Florida Administrative Code; The Department, in addition to terminating Conval Care's participation in the program, was seeking reimbursement of the $591,092.00 overpayment and imposing an administrative fine of $5,000.00; and No further Medicaid payments would be made to Conval Care. The information contained in the Termination Letter was taken by Ms. Williams from the Investigative Report. For some reason which has not been explained in this case by either party, the Department did not inform Conval Care in the Termination Letter that the $591,092.00 reimbursement was also being sought by the Department because the persons who received the services were not "homebound", as concluded in the Investigative Report, even though Ms. Williams agreed with the conclusions of the Investigative Report concerning the fact that the recipients of services were not homebound. After Conval Care received the Termination Letter, the Department stopped all Medicaid payments to Conval Care. As a result, Conval Care closed within three months after receiving the Termination Letter. The Department should have been aware of this possible consequence. The weight of the evidence in this case failed to prove that the conclusions reached by the Department concerning possible violations of Medicaid law by Conval Care as set out in the Termination Letter were not reasonably supported, both factually and legally, by the allegations contained in the Investigative Report. If the alleged facts contained in the Investigative Report proved to be true, it cannot be concluded that the acts which the Department concluded Conval Care may have committed were not in fact violations of Medicaid law. Conval Care's Attempts to Obtain Advice. Prior to receiving the Termination Letter, but after the investigation of Conval Care had begun, Inez Browning, the President of Conval Care, attempted to discuss the propriety of providing Medicaid services through Conval Care to residents of ACLFs. Ms. Browning contacted several Department employees, including Ms. Williams, to discuss the matter. The only concern expressed by Department employees to Ms. Browning about the propriety of a home health care agency providing Medicaid services to residents of an ACLF in response to her inquiries involved the unavailability of Medicaid funds to cover such services. In light of the fact that the Department was aware that there was an ongoing criminal investigation of Conval Care by Medicaid Fraud, the evidence failed to prove that the Department's actions in failing to warn Ms. Inez of any potential violations Conval Care may have been committing was unreasonable. The Prosecution of the Termination Letter. After receiving the Termination Letter, Conval Care filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest the proposed actions of the Department expressed in the letter. Conval Care's request for hearing was filed by the Department with the Division of Administrative Hearings in June, 1991. The matter was designated case number 91-4020 and was assigned to the undersigned. Between June, 1991, and December, 1991, the parties pursued discovery and began preparations for the formal hearing in case number 91-4020. On December 18, 1991, the parties requested that case number 91-4020 be continued to give the parties an opportunity to pursue a possible settlement of their dispute. Case number 91-4020 was continued from December, 1991, until March, 1992. On March, 18, 1992, a Fourth Notice of Hearing was entered rescheduling the final hearing of case number 91-4020 for July 27-31, 1992. Between March, 1992, and July, 1992, discovery continued in case number 91-4020. On July 14, 1992, the Department filed a Motion for Leave to Amend Termination Letter and an Amended Termination Letter. In the Amended Termination Letter, the Department, for the first time, attempted to raise the issue of whether certain recipients of care provided by Conval Care were "homebound". The Department also attempted to add three other "counts" which Conval Care had not previously been put on notice of. The Department's effort to amend the Termination Letter, in light of the fact that it had been over a year since the original Termination Letter had been issued, and the fact that the final hearing of case number 91-4020 was scheduled for the week after the request to amend was filed, was denied. The Department requested, and was granted, a continuance of the final hearing scheduled to commence July 27, 1992, due to the hospitalization of counsel for the Department in case number 91-4020. The hearing was rescheduled to commence August 7, 1992. On August 5, 1992, only two days before the scheduled commencement of the final hearing in case number 91-4020, the Department filed a "Notice of Voluntary Dismissal". After the undersigned informed the Department that it was not in a position to "voluntarily dismiss" case number 91-4020, the Department informed the undersigned that the filing of the Notice of Voluntary Dismissal by the Department was intended as a notice of withdrawal of the Termination Letter by the Department. Therefore, an Order Closing File in case number 91-4020 was entered on August 13, 1992. The Department's compliance with discovery requests of Conval Care during the pendency of case number 91-4020, was less than adequate. On more than one occasion, it was necessary to order the Department to respond to reasonable discovery requests of Conval Care. While the Department's failure to reasonably respond to discovery requests may suggest a lack of evidence to support the Department's actions, the evidence failed to support a finding that there were not other reasons for the Department's actions. The evidence also proved that there were indications to the Department during discovery in case number 91-4020 that there could be problems with some of the facts of the Investigative Report which had been relied upon by the Department. Those problems and alleged problems which Conval Care has suggested in Conval Care's proposed final order in this case are not, however, sufficient to prove that the Department should have known that the alleged facts of the Investigative Report it had relied on in issuing its Termination Letter were insufficient to continue to pursue the charges it had made in case number 91- 4020. The weight of the evidence in this case, including the file in case number 91-4020, failed to prove why the Department chose not to pursue the charges of the Termination Letter. The evidence failed to prove that the Department "knew by [the time it withdrew the Termination Letter] that it couldn't win."
Findings Of Fact Answers on the Application Amer Alanbari, M.D., applied to the Board of Medicine for licensure as a physician by endorsement on February 19, 1992. The application form he filled out and submitted asks two questions on page 4 under no. 8: "Are you now or have you ever been emotionally/mentally ill?" and "Have you ever received psychotherapy?" To both questions, Dr. Alanbari answered "No." Under "POSTGRADUATE TRAINING," Dr. Alanbari listed "[f]rom 7/1/88 to 6/30/89: No training." The application form also asked, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" To this question, Dr. Alanbari answered "No." Events Prior to the Application Amer Alanbari, M.D., naturalized in Newark, New Jersey, as a citizen of the United States on August 29, 1989, was born in Damascus, Syria in 1958. He received his medical degree in the same city on September 7, 1982, from the University of Damascus. Within a month he began specialty training in pulmonary diseases at the University of Nancy, Centre Hospitalier Regional de Nancy, in Nancy, France. His attendance in the program in France was from October 1, 1982 until July 30, 1984, From August 1984 until November 1986 he resided in Prospect Park, New Jersey, where he has family, a time during which he received no medical training. For the next year and one-half, approximately, from December 1, 1986, until June 30, 1988, Dr. Alanbari enjoyed an Internship in Internal Medicine at The University of Toronto, The Toronto Western Hospital in Toronto, Ontario, Canada. He completed training in Core Internal Medicine on June 30, 1988, and left the program in good standing. Sometime shortly before completing the training in Internal Medicine in Toronto, Dr. Alanbari suffered a crisis brought on by serious family and financial problems following the death of his father. The chief resident at The Toronto Western Hospital arranged for Dr. Alanbari to see a psychiatrist. The psychiatrist's diagnosis of Dr. Alanbari's condition was "depression"; an anti-depressant medication was prescribed. Dr. Alanbari took the medication for three weeks. After the three weeks, not convinced that he was suffering from depression and having received some training in psychiatry, himself, Dr. Alanbari ceased the medication. He has not seen a psychiatrist since. Upon leaving Toronto, Dr. Alanbari returned to Prospect Park, New Jersey. On November 18, 1989, Dr. Alanbari entered the Internal Medicine Program at the Department of Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. He entered the program as a first year medical resident even though he had completed a first year residency earlier because, for whatever reason, he was unable to obtain a second year residency. Dr. Alanbari was not given an official letter from the VA facility informing him of the status of his training because it was an unusual time of the year to begin training. He was told by the VA Medical Center that he could remain until June and then his status would be determined. Dr. Alanbari, however, did not remain at the facility until June. He left the Medical Center on April 18, 1989, under the affectation that his ulcer had begun bleeding. Although Dr. Alanbari had an ulcer at the time, it was, in fact, not bleeding. In truth, Dr. Alanbari left the program because of difficulties in an engagement to be married. Dr. Alanbari did not reveal the true nature of the basis of his departure from the Wilkes-Barre VA facility because the issue of difficulties in his personal relationship with his fiancee was sensitive to him at least, in part, because of the Syrian culture in which he was raised. Moreover, he did not want to suffer a suggestion from supervisory medical personnel at the VA facility, as had been made earlier at the Toronto facility, that he see a psychiatrist again. He resisted such a suggestion because he felt he was capable of solving the problem himself. Dr. Alanbari's fiancee, a Syrian woman residing in New York, wanted to return to Syria while Dr. Alanbari was intent on conducting the practice of medicine in the United States. Forced to choose between his fiancee and his career, a decision with at least the potential for affecting the remainder of his life, Dr. Alanbari returned to Prospect Park, New Jersey, in order to make a decision free of the pressures of residency and the practice of medicine. For several months, Dr. Alanbari lived with family in New Jersey. In July of 1989, less than three months after leaving the Wilkes-Barre VA facility, Dr. Alanbari moved to New York and entered a first-year residency for the third time, again in Internal Medicine, but this time at the Methodist Hospital at 506 Sixth Street in Brooklyn, New York. At the time Dr. Alanbari submitted his application in February of 1992, he had completed the first two years of his residency at the Methodist Hospital in Brooklyn and was in the second half of his third year of residency in internal medicine. Events after the application's submission During the processing of Dr. Alanbari's application, the Board received a profile from the American Medical Association revealing the training Petitioner received at the Wilkes-Barre VA hospital. The contradiction between the profile and Dr. Alanbari's application led the Board to inquire further. On May 24, 1992, two months after the filing of the application, Dr. Alanbari appeared in the office of the Board to discuss problems with his application. The visit was followed by letters from Dr. Alanbari to the Board less than one month later. Although copies of the letters were stricken from the record, Dr. Alanbari testified at hearing that he informed the board by letter of the crisis he had suffered following his father's death shortly before leaving Toronto, the single visit to a psychiatrist at the suggestion of the Chief Resident, the psychiatrist's diagnosis of depression and the prescription of the anti-depressant. Dr. Alanbari answered "No," to the question on the application as to whether he had ever been emotionally or mentally ill because he was not convinced that he suffered from depression, was hesitant to reveal matters that were private and was not sure he could obtain a report from the psychiatrist because of his limited treatment. Dr. Alanbari also related to the Board in the same letter that he had started training at the Wilkes-Barre VA facility in December of 1988 but left in April of 1989 because of serious problems in his marital engagement. In November of 1992, Dr. Alanbari appeared before the Board's Credentials Committee. The meeting's minutes relate: After receiving testimony, it was determined that Dr. Alanbari has been less than truthful not only during the application process, but during his medical training and the independent psychiatric evaluation which was arranged through PRN. Dr. Alanbari stated that he was very hesitant to give details about his personal problems because he feels it is a matter of privacy. The minutes go on to reflect that Dr. Goetz of the Physicians Recovery Network recommended that Dr. Alanbari undergo a five-day inpatient evaluation through the Physicians Recovery Network. After a discussion with Dr. Goetz outside the Committee's meeting room, the minutes report, "Dr. Alanbari stated that he is agreeable to undergoing the five-day evaluation through PRN as suggested by Dr. Goetz." Motion was made, seconded and carried unanimously to retain jurisdiction until no later than the March, 1993, meeting to allow Dr. Alanbari to undergo evaluation through PRN and to complete a new, complete and accurate application. The Credentials Committee reconvened on March 19, 1993. Minutes of this second meeting show that, On March 10, 1993, a letter was received from Dr. Alanbari stating that he could not afford the cost of the PRN evaluation. Motion was made, seconded and carried unanimously to recommend denial of application based on his testimony at the November, 1992 Committee meeting, attempting to obtain a license by fraud and misrepresentation, failure to comply with the Board's request that he undergo five-day inpatient evaluation through PRN and failure to submit a new, complete and accurate application. The minutes also show, apparently, that an inde- pendent evaluation, an evaluation other than the five-day inpatient evaluation the board had requested Dr. Alanbari to undergo, had been conducted of Dr. Alanbari. Dr. Goetz of the Physicians Recovery Network opined to the board that "he felt Dr. Alanbari had not been forthright during the independent evaluation . . ." Dr. Goetz did not testify at the hearing. There was, therefore, no foundation laid for the opinion; nor, was it elaborated upon or explained by Dr. Goetz. No evidence was introduced as to who conducted the evaluation, of what it consisted or anything else about it. On November 4, 1993 the Order of the Board denying Dr. Alanbari's application was rendered. There is nothing of record to indicate what, if anything, relevant to this case transpired during the eight month period between the March meeting of the Credentials Committee and the Board's order. In the order's statement of grounds for the denial is the following, "Your mental condition interferes with your ability to practice medicine with skill and safety." Although nothing was produced by the Board at hearing to show what happened between March of 1993 and November of 1993, the minutes of the Credentials Committee contain the grounds found by the committee in support of a recommendation to the Board that the application be denied. Dr. Alanbari's "mental condition" as "interference with his ability to practice medicine" was not among the Credential Committee's grounds supporting the recommendation to the Board formulated in March of 1993. The hearing. Following Dr. Alanbari's explanation at hearing of the reasons for filling out his application as he had, the Board presented no witnesses to support its action in entering the denial order. The remainder of the Board's case was comprised of four exhibits: (1) Dr. Alanbari's application; (2) A letter from Robert A. Bear, M.D., stating that Dr. Alanbari left the program at the University of Toronto "in good standing. He did not break a contract. He was not offered a contract to continue training"; (3) the Credential Committee's minutes from its November 1992 meeting, and; (4) the Credential Committee's minutes from its March 1993 meeting. Aside from the four exhibits, the Board's case for denial rests on the "admission" under oath by Dr. Alanbari that his replies on the application were false, an "admission" made by an unrepresented applicant under withering cross- examination by substitute counsel for the board: Q . . . First of all, I want to establish, is it not true that you stated on your application to the Board of Medicine that you have never had any mental illness or been treated with any psychotherapy? A Yes, it was true, and that's why -- Q Doctor, however, isn't it also true that, in fact, you were seen by a psychiatrist and given medication? A Only once and I gave all the details, that's why I made my trip from New Jersey to meet with higher authorities to explain that special situation. It's my privacey [sic]. Q Doctor, that was after you said no, isn't that correct? A Yes. Q You keep talking about privacy here. Do you believe that you have a right to give a false answer on your application because you believe it to be a private matter. A It was delicate situation, I tried to deal with it with honesty, that's why I made my trip to Florida. I wanted to speak to someone. Q Doctor, was your answer on the application honest? A Yes. Q When you said no on the application, was that an honest answer? A If you asked me if any question on the application was honest, yes. Q No, I asked you if your answer on the application was honest, your answer to the question about psychotherapy and you said no. A The honest question, I don't know. Not yes, not no. Q But you answered no, didn't you, Doctor? A It was a very delicate situation and I presented the events as they happened and I left it to you to appreciate -- Q Doctor, did you submit such an explanation with your application when you said no? A No. Q You didn't, did you? A No. Q Now, did you honestly answer that question as to whether or not you had psychotherapy? A Initially, I said no, but -- Q Is that an honest answer, Doctor? A No, its not. Q Thank you. Do you believe, Doctor, that you have a right to tell a lie about something just because you consider it to be private? A I don't believe in telling lies. Q But you did, Doctor, didn't you? A I initially wrote down this, but again, the issue was very delicate, there was no good answer to this. Not a yes, not a no. Q Doctor, the truthful answer to that question was yes, wasn't it? A No. Q Doctor, did you receive psychotherapy? A No, sir. (Tr. 40-43, emphasis supplied). At hearing, Dr. Alanbari was also asked in light of the fact that he had discontinued the practice of medicine for more than a month on several questions why he had answered "no," to the question on the application, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" (emphasis supplied). From his testimony, it was apparent that Dr. Alanbari believed "no" to be a correct answer because although he had ceased to practice medicine for more than a month on several occasions after graduation, he had never been forced by a licensing authority or anyone else to cease practicing medicine. Whenever he had lapses in practice of more than a month they were always by choice. He, therefore, had never had to discontinue practice, the precise question posed by the application. Dr. Alanbari's testimony on this subject squares with the remainder of his application from which it is obvious that he informed the board from the moment he first applied that he had not practiced for several periods of more than one month's duration subsequent to his graduation from medical school. This included a period from August of 1984 until November of 1986 and the time that he did not practice between July of 1988 and June of 1989 that preceded and followed his practice at the VA Medical Center.
Recommendation It is, accordingly, RECOMMENDED: That Dr. Alanbari be requested to submit additional information to the Board; and, That Dr. Alanbari's application be denied if he does not submit such additional information within 30 days of the request. If the Board does not choose to request additional information to clarify Dr. Alanbari's application then Dr. Alanbari should be certified by the Board to the Department for licensure by endorsement. DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida. DAVID M. MALONEY 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 21st day of September, 1994. APPENDIX Petitioner did not submit a proposed recommended order. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 7, 8 have been adopted, in substance, insofar as material. With respect to Respondent's proposed finding of fact No. 4, it was the Board which framed the issues of the hearing in its denial order. Dr. Alanbari adopted those issues. In all other respects the finding is accepted. With respect to Respondent's proposed finding of fact No. 6, Petitioner's representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 9, the representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 10, the first sentence of the finding is accepted. The remainder of the finding is rejected. Although counsel stated at hearing that correspondence had been sent to Petitioner inquiring about the Wilkes-Barre program, there was no evidence presented of such correspondence. Nor was there evidence that Petitioner's participation in the program was anything other than temporary. His assertion, therefore, was not false. With respect to Respondent's finding of fact No. 11, the finding is accepted. The finding is relevant only to Petitioner's credibility. As explained in the body of the Recommended Order, under Petitioner's legitimate interpretation of the question, his answer was not false. COPIES FURNISHED: Amer Alanbari, M.D. 51 Layton Road Sussex, NJ 07461 Gregory A. Chaires, Esquire Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol Tallahassee, Florida 32399-1050 Marm Harris, Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent is guilty of testing positive for a controlled substance on a pre-employment drug screen without a prescription or valid medical reason for using the substance, in violation of Rule 64B9-8.005(1)(e)18, Florida Administrative Code. If so, an additional issue is what penalty should be imposed.
Findings Of Fact Respondent is a licensed registered nurse, holding license number RN 1553452. She was originally licensed in Florida in 1984. Except for the complaint leading to this case, Petitioner has received no complaints against Respondent in her 16 years of licensure. Respondent did not have a prescription for cocaine, nor a valid medical reason for the use of cocaine. On April 19, 1999, the director of nursing and assistant director of nursing at the Whispering Pines Nursing Home interviewed Respondent for an opening as a registered nurse at the nursing home. Offering Respondent a job, subject to passing a urine screen, the assistant director of nursing administered the urine test. The assistant director of nursing gave Respondent a collection cup and showed her to the bathroom. She told Respondent not to flush or wash her hands until she had returned the filled cup to the assistant director of nursing. Because Respondent had appeared for her interview at about 5:00 P.M., the assistant director of nursing told her to use a different bathroom from that which was normally used for urine tests. However, this deviation from the norm did not introduce an element of risk of confusion of urine samples. To the contrary, the use of the alternative bathroom, which, unlike the customary bathroom, had hot and undyed water, introduces an element of risk of manipulation by the urine donor. As for the risk of confusion of urine samples, the after-hours use of the alternative bathroom, if anything, reduced the risk of confusion of urine samples. Respondent was the only person from whom the assistant director of nursing ever collected urine after hours, and the likelihood of confusion of urine samples was limited by the fact that Respondent's sample was the only sample collected at the time. When Respondent returned the filled cup, the assistant director of nursing immediately read the temperature of the sample and determined that, as required, it was over 90 degrees. The assistant director of nursing directed Respondent to initial the seal to be placed on the container. After Respondent did so, the assistant director of nursing then applied the seal to the container. However, Respondent could not recall if she sealed the container before Respondent left the room. This procedure deviated from the procedure adopted by the nursing home in two respects: the assistant director of nursing did not require Respondent to initial the seal after it was placed over the container and the assistant director of nursing could not affirmatively state that she sealed the container in the presence of Respondent. It is unclear whether numerous other urine samples were in sufficient proximity to the assistant director of nursing so as to raise the possibility of confusion of urine samples. Likely, the director of nursing and assistant director of nursing had collected other samples that day. If so, their use of an overnight courier service would raise the possibility that any other samples remained in the area for pick-up. There is a more serious discrepancy in the record. The laboratory technician produced a bar code that accompanied the sample that yielded the positive result of cocaine. Comparing this bar code to the materials in her file, the assistant director of nursing could find no bar code of a similar size. This significant discrepancy, which is unexplained in the record, militates in favor of confusion of urine samples. Respondent has worked many years as a registered nurse and been subject to numerous announced and unannounced drug tests. The record reveals no indication of drug use in these tests. Respondent's employment record and unblemished disciplinary history militate in favor of confusion of urine samples. Also, Respondent voluntarily submitted to the drug screen in this case. As a registered nurse, she would presumably have had a reasonable concern about a positive result, if she had ingested cocaine recently. Her voluntary submission to a drug test militates in favor of confusion of urine samples. In isolation, neither the discrepancies in the urine testing and handling of the sample nor the background of Respondent would likely preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine. However, these facts, together, preclude a finding of clear and convincing evidence that Respondent tested positive for cocaine.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 13th day of April, 2000. COPIES FURNISHED: Diane K. Keisling, Contract Attorney Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Leslie M. Conklin Conklin & Stanley, P.A. Suite 202 1465 South Fort Harrison Avenue Clearwater, Florida 33756 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
The Issue This is a case in which the Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee and against his license to practice medicine in the State of Florida. In a two count Administrative Complaint the Respondent is alleged to have violated paragraphs and (h) of Subsection 458.331(1), Florida Statutes, by failing to report to the Department certain activities he is alleged to have witnessed, and is alleged to have violated paragraph (t) of Subsection 458.331(1), Florida Statutes, by failing to take certain specified actions which it is alleged should have been taken by a reasonably prudent physician acting under similar conditions and circumstances. Because of the somewhat unusual nature of this case, the principal allegations of the Administrative Complaint are set forth below to give context to the remainder of this Recommended Order. 1/ * * * COUNT ONE On or about March 16, 1982, Respondent was present at the delivery of a male infant to Mary Jones, reportedly to serve as the supervising physician to three (3) midwives performing the delivery. The delivery was performed by Margaret Hebson, Linda Wilson and Ricky Taylor. Hebson, Wilson and Taylor are not licensed to practice midwifery in the State of Florida, a fact which was known or should have been known to Respondent. Based upon the foregoing, Respondent has violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person who the licensee knows in violation of this Chapter or of the rules of the Department or the Board. Based upon this violation, Respondent has violated Section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. * * * COUNT TWO Given Jones medical history, a reasonably prudent similar physician acting under similar conditions and circumstances would have ordered Jones transferred to the hospital rather than allow a home delivery to take place. Respondent did not. Respondent further failed to act prudently and to fulfill the duties that a responsible supervising physician acting under similar conditions and circumstances would have fulfilled by failing to examine Jones prior to delivery, failing to furnish obstetrical care when needed during delivery and failing to order Jones transferred to the hospital when it became apparent that Jones was suffering a prolonged labor. Following delivery the infant went into respiratory arrest and expired. A reasonably prudent physician acting under similar conditions and circumstances would have properly CPR to resuscitate the infant. Respondent did not. Based upon the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses, I make the following findings of fact. The Respondent, Albert A. Sneij, is a licensed medical doctor, having been issued license number ME0034499, and was so licensed at all times relevant to this case. At all times material to this case, Linda Wilson was not a licensed midwife and Dr. Sneij knew that she was not a licensed midwife. 3/ Mary Jones became pregnant for the third time in June or July of 1981. She went to see Dr. R. Strassberg, a specialist in obstetrics and gynecology, on July 24, 1981, and thereafter made regular visits to Dr. Strassberg's office until February 16, 1982. Mary Jones did not go back to Dr. Strassberg's office after February 16, 1982, because she had decided she wanted to deliver her baby at home. Jones did not tell Dr. Strassberg's office she was planning to have a home delivery; she simply never returned to Dr. Strassberg's office after the visit of February 16, 1982. During the time Jones was being attended by Dr. Strassberg there was nothing particularly remarkable about the course of her pregnancy other than a somewhat large amount of increase in her weight. Prior to her pregnancy in 1981, Mary Jones had given birth to two children, one in December of 1970 and the other in August of 1975. Both of the prior children were born in a hospital. During both of her prior pregnancies Mary Jones was attended by obstetricians. Mary Jones' first baby weighed eight pounds, twelve-and-a-half ounces, and was born breech. Her second baby weighed nine pounds, eight ounces, and was a normal birth. During the course of her 1981 pregnancy, Mary Jones became interested in home birth and began to go to some home birth classes, including some classes that were being taught by Linda Wilson. Jones decided that she wanted to have her baby delivered at home by a midwife and asked Linda Wilson about procuring the services of a midwife. Wilson was not doing home births at that time because Wilson was in nursing school, but Wilson recommended that Jones contact Margaret Hebson because Hebson had indicated an interest in providing midwife services for home births. Mary Jones first met with Margaret Hebson in January of 1982, at which time Mary was in the seventh month of her pregnancy. At their first meeting Hebson took a history, wrote down information about Jones' background, did an external examination which consisted of taking Jones' blood pressure and pulse, listening to the fetal heartbeat, and feeling the position of the baby. At that time Mary Jones hired Margaret Hebson to be her midwife. Jones paid Hebson $100.00 in advance and agreed to pay her an additional $200.00 after the birth. 4/ About three weeks later Hebson went to Mary Jones' house to do another examination. During that visit Hebson told Jones that Linda Wilson was also going to attend the birth and that Wilson would bring a doctor. Jones was uncertain about whether she wanted to have a doctor at the birth. Jones' uncertainty was due in large part to her very negative attitude towards doctors and hospitals as a result of her experiences during her two prior deliveries. She felt that doctors and hospitals made the birthing experience too impersonal and did not permit her to do things her way. She particularly wanted to be able to have the people of her choice in the birthing room and to hold her baby as soon as it was born; things which were denied her during her two prior deliveries which were at hospitals where she was attended by doctors. Mary Jones called Linda Wilson to discuss what Hebson had told her and Wilson told Jones that she could meet the doctor at Wilson's classes and then make up her mind. The doctor turned out to be Dr. Albert A. Sneij. Mary Jones first met Dr. Sneij during February of 1982, during her eighth month of pregnancy, after she had already made the decision to have a home birth and had already hired and paid a midwife. She met Dr. Sneij at one of the classes conducted by Linda Wilson. On the day she met Dr. Sneij, he took a prenatal history, did an external examination of her abdomen, and listened to the fetal heartbeat. On at least one subsequent occasion Dr. Sneij performed a similar abdominal examination and again listened to the fetal heartbeat. Mary Jones never retained the services of Dr. Sneij, never asked him to be her doctor, never agreed to be his patient, and never agreed to pay him anything for his services. No doctor-patient relationship was ever established between Dr. Sneij and Mary Jones. Mary Jones did not really want Dr. Sneij, or any other doctor, to be present at her delivery, but merely tolerated his presence because of her understanding that Linda Wilson wished to have Dr. Sneij present. 5/ As late as two days before her delivery, Mary Jones told Wilson and Hebson that she was not comfortable around Dr. Sneij and didn't know if she wanted him to attend her delivery. Wilson and Hebson told her she could wait until she was in labor to decide whether she wanted to have the doctor present at the delivery. Mary Jones' understanding of why Linda Wilson wanted the doctor present was that in the event Jones tore any tissues during the delivery the doctor would be there to suture her. Postpartum suturing was the only thing that Mary Jones even impliedly agreed to let Dr. Sneij do for her. Dr. Sneij did not have her consent, expressed or implied, to do anything else. Early in the morning on March 15, 1982, Mary Jones began to have contractions and to experience some pain. She got in touch with Hebson and ultimately around 9:00 or 9:30 a.m., Linda Wilson and Ricki Taylor 6/ arrived at the Jones residence. They checked Mary Jones and told her not to worry and to go on about her regular activities. Mary Jones spent the rest of the day doing such things as having lunch with her sister, going shopping, and then going for a walk around the block with her husband. Sometime before 5:00 p.m. that day Mary Jones called Hebson again. Hebson said she could not get off work until 5:00 p.m., but would get in touch with Wilson or Taylor and have one of them go out to the Jones residence. Sometime shortly before 5:00 p.m., Ricki Taylor arrived at the Jones residence. Then between 5:30 and 6:00 p.m. Louise Godwin, who is Mary Jones' sister and a registered nurse, arrived at the Jones residence. Margaret Hebson arrived about the same time as Godwin. Hebson did an internal examination of Mary Jones and told her that she was dilated four centimeters. Hebson also asked Jones various questions about what she had eaten that day and took her pulse and blood pressure. Linda Wilson did not arrive until sometime after 7:00 p.m. At that time Godwin was making supper and from then until about 9:30 p.m. everyone present attended to such things as domestic chores, eating supper, and/or trying to make Mary Jones more comfortable. At about 9:30 p.m., Wilson, Hebson, and Taylor decided to take Jones' two sons to the drug store for a few minutes. As they were leaving, Mary Jones' mother arrived. Wilson, Hebson, Taylor and the two boys returned about 40 minutes later. Nothing eventful happened until shortly before 11:00 p.m., at which time Jones' contractions started coming a lot closer together and Mary Jones suggested that someone start getting the bedroom ready for the delivery. Things were made ready, Wilson, Hebson, and Taylor changed clothes, and shortly after 11:00 a.m. Mary Jones was in the bedroom ready to begin trying to deliver her baby. It was probably at about this time that Linda Wilson called Dr. Sneij. 7/ Before Dr. Sneij arrived at the Jones residence, there were ten other people in the bedroom with Mary Jones; namely, Hebson, Wilson, Taylor, Godwin, Bob Jones (Mary's husband), both of the Jones sons, Mary's mother, and two of Mary's friends. Dr. Sneij arrived at the Jones residence shortly thereafter and remained in the living room for a few minutes until someone asked him to come into the bedroom. 8/ When Dr. Sneij entered the bedroom the baby's head was not yet visible. At that time Mary Jones had probably been in the second stage of labor for about twenty or thirty minutes. The baby's head was first visible about five or ten minutes after Dr. Sneij entered the bedroom. Thereafter the top of the baby's head was visible pressing against the peroneum for approximately thirty minutes until the baby's head was entirely delivered. Within a minute or two after the delivery of the baby's head, the baby was fully delivered. When the baby was born it had a blueish color and was not making any attempt to breathe. The baby was promptly suctioned and then Dr. Sneij and Louise Godwin administered mouth-to-mouth CPR to the baby. The baby's pulse was checked and found to be present. A few minutes later Fire Rescue was called. When the Fire Rescue personnel arrived, they took over the CPR efforts. At that time the baby still had a pulse and during the CPR efforts by Fire Rescue the baby's color improved. Fire Rescue transported the baby to James Archer Smith Hospital. The baby was still alive when the Fire Rescue personnel delivered the baby to the hospital. The baby died some time before noon on March 16, 1982. From the time Dr. Sneij entered the bedroom until the time the baby was delivered, Dr. Sneij was observing what was happening and Hebson was doing most of the "hands-on" work assisting Mary Jones with the delivery. Hebson was being assisted to some extent by Linda Wilson. Ricki Taylor appears to have been primarily an observer. Dr. Sneij was sufficiently attentive to what was happening to conclude that the delivery should probably be expedited and to recommend an episiotomy. When it was suggested that an episiotomy be done, Mary Jones protested against that suggestion and refused an episiotomy. During the second stage of labor the fetal heartbeat was checked at least once every fifteen minutes and the heartbeat was recorded on the midwife's notes on labor and delivery. 9/ The fetal heartbeat rate never indicated any fetal distress and the baby still had a pulse shortly after delivery. An autopsy of the Jones baby was performed by Dr. Charles V. Wetli, the Deputy Chief Medical Examiner for Dade County, Florida. The autopsy revealed no evidence of trauma and no evidence of any congenital diseases or abnormalities. The only findings were generalized visceral congestion and petechiae of the lungs and heart. These findings are indicative of a nonspecific form of an asphyxial mechanism of death. 10/ Dr. Wetli also examined the placenta. It appeared to be normal and contained no evidence of meconium staining. He also examined a section of the umbilical cord and found it to be normal. I have not made any findings of fact as to the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under conditions and circumstances similar to those involved in this case because, for the reasons stated at length in the Conclusions of Law portion of this Recommended Order, there is no sufficiently substantial evidence in the record in this case a to the appropriate level of such care, skill, and treatment. 11/
Recommendation For all of the reasons stated above, I recommend that the Board of Medical Examiners enter a Final Order in this case which DISMISSES the entire Administrative Complaint against Dr. Sneij. DONE and ORDERED this 9th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1984.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent was a licensed practical nurse holding license number 11005-1. On April 8th and 9th 1975, respondent was employed at St. Vincent's Medical Center in Jacksonville, Florida. As required by federal law and the normal course of the business of pharmacy, the pharmacist of the Center maintains and retains narcotic control records which chart the withdrawal and disposition, of controlled substances. The narcotic control records introduced into evidence as Exhibit 2 record the disposition of various dosages of meperidine ampuls. Demerol is the trademark name of the generic drug meperidine, which is a controlled substance under Ch. 893 of the Florida Statutes. St. Vincent's Medical Center has specific procedures to be followed when withdrawing and administering narcotic drugs. When a nurse withdraws a narcotic drug for a patient, it is her duty to fill out the narcotic control record showing the date, the time, the dosage, the patient to whom the drug is to be administered, the treating physician and the signature of the person withdrawing and administering the substance. The substance should then be administered to the patient within minutes of the withdrawal time, and the time of administration and dosage should immediately be noted or charted on that portion of the patient's medical record entitled "Nurses Notes." From the testimony adduced at the hearing, and by comparing the narcotic control records with the "Nurses Notes" on several patients; it is clear that on April 8th and 9th, 1975, respondent did not chart or note as having administered a substantial quantity of the drugs withdrawn by her. Furthermore, many that she did chart were not specific as to the time administered or the time charted was a half hour or more from the time listed on the narcotic control record. There was no evidence that respondent was using these drugs for her own purposes or that the patients, in fact, did not receive their medication after it was withdrawn by respondent. It was respondent's testimony that the discrepancies existing between the narcotic control sheets and the "Nurse's Notes" resulted from either errors in charting on another patient's chart or mistakenly forgetting to chart the administration due to being so busy or short-staffed. Respondent denied taking any of the narcotic drugs herself.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing find respondent guilty as charged in the administrative complaint and suspend respondent's license for a period of six (6) months. Respectfully submitted and entered this 9th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ms. Geraldine Johnson Florida State Board of Nursing 6501 Arlington Expressway Jacksonville, Florida 32211 Mr. Juluis Finegold 1130 American Heritage Life Building Jacksonville, Florida 32202 Ms. Dorothy M. Hall Cobb 1720 West 13th Street Jacksonville, Florida 32209
The Issue The issue is whether Respondent's license as a practical nurse should be disciplined for the reasons given in the Administrative Complaint filed on October 26, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Health, Board of Nursing (Board), seeks to impose penal sanctions on the license of Respondent, Gary Matthew Davis, a licensed practical nurse, on the ground that he twice entered a plea of no contest to a crime related to the practice or the ability to practice nursing. In his Election of Rights Form filed with the Board, Respondent disputed various allegations in the complaint and requested a formal hearing. Respondent is subject to the regulatory jurisdiction of the Board, having been issued license no. 1265761 by endorsement on March 12, 1997. As of June 1999, the license was active. Petitioner's Composite Exhibit 3 establishes that on October 9, 1997, Respondent was arrested in Duval County, Florida, for purchasing marijuana from an undercover sheriff's officer, a felony. On December 8, 1997, the charge was reduced to possession of less than 20 grams of marijuana, a misdemeanor. Although the Administrative Complaint alleges that on the same date Respondent entered a plea of no contest to the misdemeanor charge, perhaps through inadvertence, the records offered into evidence do not substantiate this charge. Petitioner's Composite Exhibit 2 establishes that on October 24, 1997, Respondent was again arrested for possession of marijuana and carrying a concealed weapon in his automobile. On January 22, 1998, Respondent entered a plea of no contest to one count of possession of less than 20 grams of marijuana, a misdemeanor. The firearms charge was dropped. He was adjudicated guilty and sentenced to serve 2 days in jail and pay court costs. He also forfeited the concealed weapon. Despite the lack of expert testimony on this issue, it is fair to infer that the use of a drug such as marijuana could impair the ability of a nurse to practice his profession, and thus the crime to which Respondent pled guilty related to his ability to safely practice nursing. A representative of Respondent's former employer, Melissa Kurz (Kurz), gave lay testimony at hearing and established that Respondent was working as a licensed practical nurse at Maxim Home Healthcare Services in the fall of 1997. His sole responsibility was giving flu shots to patients. After Respondent's arrest, he was dismissed from employment and referred to a substance abuse program by his employer. However, Respondent refused to enter the program. Given his refusal to participate in that program, and the fact that Respondent was in possession of a controlled substance, Kurz expressed concern about Respondent's ability to continue practicing as a nurse at her facility. In terms of mitigation, there is no evidence that Respondent has ever been disciplined by the Board on any prior occasion. There is also no evidence that his use of drugs caused harm to any patient. As aggravating circumstances, the evidence shows that while Respondent was convicted of possession of a controlled substance on only one occasion, he was arrested for the same offense twice within a one-month period. Also, Respondent failed to make any effort to rehabilitate himself by refusing to attend substance abuse classes, as directed by his employer. Finally, Respondent had been licensed as a professional for less than one year when these events occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Respondent violated Sections 464.108(1)(c) and (i), Florida Statutes (1997), on one occasion, and that his license should be suspended for one year, to be followed by a period of probation (and conditions) to be determined by the Board. The remaining charge should be dismissed. DONE AND ENTERED this 19th day of October, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 19th day of October, 1999. COPIES FURNISHED: Ruth Stiehl, Executive Director Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Howard M. Bernstein, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Gary Matthew Davis 822 Vernon Street Fernandina Beach, Florida 32034 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 J. Hardin Peterson, III, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent is a Registered Nurse who is presently registered with the Florida State Board of Nursing, and is licensed by the Board to practice her profession in Florida. The Respondent has been a Registered Nurse since 1965. Until she was suspended in April, 1977, the Respondent had been employed on a periodic basis for 12 years at the Ft. Pierce Memorial Hospital. The Ft. Pierce Memorial Hospital has recently moved to a new facility, and it is now known as the Longwood Medical Center. Nurses are frequently called upon to administer drugs which due to their narcotic or other dangerous propensities have been classified as controlled substances. The procedure followed in administering such drugs to patients at the Ft. Pierce Memorial Hospital has, at all material times, been as follows: If a patient requests medication, or the need to administer the medication otherwise comes to the attention of a nurse on duty, the nurse will check the patient's chart to make sure that the patient's physician has approved use of the drug, and to determine whether it is timely to administer it. The nurse will then go to the nursing station, pick up the appropriate drug, and sign out for it on a narcotic control sign-out record. The nurse will then administer the drug and note the dosage and the time on the patient's chart. Failure to properly log and chart the use of controlled substances can have serious consequences. Such failures could result in drugs being removed from the hospital premises, and used for illicit purposes. Failure to properly chart administration of the drugs can result in misdiagnosis of the patient's condition, or in the administration of overdoses of drugs. During April, 1977, the Respondent failed to properly chart and account for controlled substances on numerous occasions. On April 8, the Respondent signed out for a dosage of Meperidine, or Demerol, a controlled substance, on the narcotic control log, but she failed to chart administration of the drug to the patient. On April 9, the Respondent signed out for 3 dosages of Meperidine, and 1 dosage of Numorphan, a controlled substance, and failed to chart administration of the drugs. On April 12, the Respondent signed out for 5 dosages of Meperidine, 3 dosages of Numorphan, and 1 dosage of Dilaudid, or Hydromorphone, a controlled substance, and failed to chart administration of the drugs. On April 17, the Respondent signed out for 6 dosages of Meperidine, and 1 dosage of Morphine, a controlled substance, and failed to chart the administration of the drugs. On April 18, the Respondent signed out for 1 dosage of Meperidine and 1 dosage of Morphine and failed to chart administration of the drugs. The Ft. Pierce Memorial Hospital was understaffed during April, 1977. Nurses were pressed for time, and that could account for occasional errors in record keeping. The understaffing could not, however, justify as many errors as the Respondent committed, especially in view of the potentially grave consequences of such errors. Charting errors were apparently made by other nurses at the hospital during this time, but not remotely to the extent of the charting failures committed by the Respondent. Hearsay testimony was offered at the hearing to the effect that the medications which the Respondent failed to chart were actually not administered to the patients. This could give rise to an inference that the Respondent was putting the controlled substances to an illicit purpose. There was, however, no direct testimony that would support a finding that the Respondent failed to administer the drugs, but only that she failed to properly chart the administration of the drugs. Prior to April, 1977, the Respondent had always received good to very good evaluations from her superiors. When the charting failures were discovered, the Respondent was suspended from her employment at the hospital. As a result she has been unable since that time to find employment as a nurse, and she has effectively been suspended since April, 1977 from practicing her profession.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to the charges in this proceeding, respondent was employed as a registered nurse on the 11:00 P.M. to 7:30 A.M. shift aft the Putnam Community Hospital in Palatka, Florida. On or about October 28, 1978, the night supervisor at the Hospital, Ollie Craven, discovered an empty vial of Demerol (Meperidine) in the narcotic box, to which respondent had a key. Normally, the vial would be broken after use, but this vial was not broken. From this date until December 1, 1978, respondent was observed by the staff to exhibit symptoms of being under the influence of drugs. These symptoms included wide mood swings, lethargic behavior, minute-sized pupils and a very dry mouth, all consistent with one taking narcotics. When respondent came on duty on or about December 1, 1978, she appeared to be ill and did vomit. When observed later in the lounge, she was drowsy and lethargic. The night supervisor observed what appeared to be Demerol in her lab coat pocket. Feeling that respondent was not capable of carrying out her duties, Ms. Craven telephoned Ms. Wallace, the Director of Nurses, at about 3:00 A.M. and Ms. Wallace came to the Hospital. When questioned by Ms. Wallace, respondent denied having taken any drugs. Ms. Wallace palpitated the respondent's thighs and found the tissue to be hard and consistent with numerous injections. Respondent was asked to give a blood and a urine sample and did so. She was observed to have blood spots on her girdle. Ms. Wallace observed the respondent to be dull, with an extremely dry mouth and minute, pinpoint sized pupils. The blood and urine samples were positive for Meperidine, also known as Demerol, a controlled substance. By an Administrative Complaint dated December 3, 1978, the petitioner Board charged respondent with unprofessional conduct and a violation of F.S. Section 464.21(1)(b). On January 11, 1979, the respondent signed a form requesting an administrative hearing on the charges. In mid-February, the undersigned received a letter from the respondent reading as follows: Ms. Tremor: The hearing will have to be held without me. I am not now able to attend or will I be able in the next 60 to 90 days. Doctors orders. He states it will be to much tension because of the heart attack I have had. Sincerely yours Mary Pennington The attorney for the Board opposed a continuance without a letter from the respondent's physician. By notice of hearing dated May 3, 1979, the final hearing was noticed for June 4, 1979. The respondent Pennington did not appear at the hearing.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the respondent be found guilty of unprofessional conduct in violation of Section 464.21(1)(b), Florida Statutes, and that her registered nursing license be suspended for a period of six (6) months. Done and entered this 2nd day of July 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson Coordinator of Investigation and Licensing State Board of Nursing 111 East Coastline Drive Suite 504 Jacksonville, Florida 32202 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mary Wood Pennington Route 2, Box 1480 Palatka, Florida 32077 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Mary Wood Pennington As a Registered Nurse Case No. 78-764 Route 2, Box 1480 License Number 59864-2 Palatka, Florida 32077 /
