Findings Of Fact At all times pertinent to these proceedings, the Respondent, David Goerg, was a licensed registered nurse in the State of Florida, holding license number 83239-1, and was an advanced registered nurse practitioner, holding license number 83239-G. At all times pertinent to these proceedings, the Respondent was employed as an advanced registered nurse practitioner in Ward D at Jackson Memorial Hospital. Ward D is a prison ward at Jackson Memorial Hospital for patients who are from the local jails or in the custody of or under detention by local law enforcement officials. Advanced registered nurse practitioners employed in Ward D at Jackson Memorial Hospital functioned under a set of "protocols," introduced as Petitioner's Exhibit 2. These protocols were entitled "Suggested Protocols" and were not officially adopted by the hospital. Under these "protocols," a person suspected of cocaine ingestion for purposes of smuggling could be released under one of the two following sets of conditions: Observation for not more than 24 hours after a clear bowel movement plus negative rectal examination and x-ray studies; Same as (a), supra, but suspect may waive the 24-hour observation period by signing a release of responsibility. The remainder of the protocols stress that patients are not to be treated as prisoners and are to be regarded as in need of diagnosis and therapy. Methods of diagnosis are solely at the discretion of the Prison Medical Service (PMS) medical personnel. According to Dr. Al-Sheikh, a resident radiologist, x- rays cannot exclude the presence of cocaine packets. X-ray studies will be either "positive" (identifiable cocaine packs) or "inconclusive" because x-rays cannot determine what causes opaque areas on the bowel. On August 25, 1984, a female patient was received in Ward D of the Jackson Memorial Hospital for suspected cocaine ingestion. Although the initial paperwork on this patient was prepared by Phyllis Fields, ARNP, at some point during the patient's assessment in Ward D the management of the patient was transferred to Respondent. An x-ray study was made of the patient by Dr. Al-Sheikh, and a rectal examination of the patient was performed by Respondent. This rectal examination revealed stool, which was inconsistent with the profile historically observed with "body packers" (persons ingesting cocaine for purposes of smuggling). The x-ray studies of the patient were reviewed by Dr. Al-Sheikh, who labeled them "inconclusive" on the basis of inability to determine what caused an opaque area in the patient's bowel. In applying this standard for assessing x-rays to the conditions for release, a patent would never be eligible for release on the basis of a "negative" x-ray study, because there is no such classification. X-rays are either positive or inconclusive. Dr. Al-Sheikh made a preliminary finding that there was at lease one ovoid density which could represent cocaine or feces. Dr. Al-Sheikh conferred with Dr. Moriollo, who confirmed this conclusion. Dr. Al-Sheikh's final report stated: "At least one ovoid density in the region of the splenic flexure of the colon which could represent cocaine bags; however, feces cannot be excluded." Respondent discussed this patient's x-rays and condition with Dr. Al-Sheikh, pointing out that it was highly unlikely that a "body packer" would have only one small packet of cocaine and that the presence of feces in the lower colon was inconsistent with the conditions generally observed in body packers. Dr. Al- Sheikh agreed with Respondent, who charted that the x-rays had been negative and ordered the patient released. Respondent was authorized to release patients upon negative findings. However, Dr. Al-Sheikh did not alter his diagnosis of x-rays as stated above. Respondent released the patient because rectal examination revealed stool, which was not found generally in body packers who take laxatives to clean out their bowels to enable them to carry the maximum number of packages. The patient's x-ray study revealed only one small opaque area. Historically, body packers do not carry only one packet of cocaine. Generally, they will ingest in excess of 50 packets. There was no evidence presented that the patient was ever in any danger or was, in fact, a body packer. This matter became an issue after Respondent's decision was questioned by the registered nurse supervisor. Evidence was also received that a contract existed between various law enforcement agencies, to include the Custom Service, and Jackson Memorial Hospital to provide the medical services to these suspected body packers, and that said patients retained in the ward were admitted as private patients by the supervising physicians.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint against Respondent be dismissed. DONE AND RECOMMENDED this 7th day of August 1984 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. David Goerg 9395 Southwest 181st Street Perine, Florida 33156 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202
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 issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 1st day of February, 2011.
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY 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 7th day of September, 1990.
The Issue The issue for final determination is whether William Barber's employment with the Monroe County School Board should be terminated.
Findings Of Fact The federal Omnibus Transportation Employees Testing Act (Act), enacted in 1991, mandates, among other things, that employers with fifty (50) or more employees begin drug testing programs on January 1, 1995. The Act authorizes the Secretary of the Department of Transportation (DOT) to prescribe regulations requiring motor carriers to conduct drug and alcohol tests on drivers, including random urine drug tests. Testing procedures are mandated to be conducted in accordance with the procedures established by the federal DOT. The procedures are set forth at 49 C.F.R. Part 40, "Procedures for Transportation Workplace Drug Testing Programs" (DOT's Regulations). DOT's Regulations are explicit and very detailed, including providing for security measures for the test site, procedures for the taking of urine samples, chain of custody for urine samples, and guarantees of privacy for tested employees. Monroe County School Board (School Board) began the federally-mandated drug testing in January 1995. The School Board's drug testing program (Testing Program) is administered to all employees who are required to have a commercial drivers license and who are in safety-sensitive positions, which includes all bus drivers and mechanics. The parties agree that DOT's Regulations require the School Board's Testing Program to use the split sample method, found at 49 C.F.R. Section 40.25(f)(10)(i)(B). The School Board's practice is to notify employees in safety-sensitive positions about the Testing Program, including the Testing Program's policies and procedures, through an informational packet of materials. Included in the informational packet are the citation to the DOT's Regulations, a brief synopsis of specific areas of the DOT's Regulations required to be included, and the policies and procedures of the School Board's Testing Program. The employees sign the first page of the packet to acknowledge that they have received the informational packet. The signed acknowledgment is retained in each employee's personnel file. The School Board's bus drivers are not expected to have in their possession, during working hours, the informational packet. William Barber was employed by the School Board as a bus driver. On January 6, 1995, Mr. Barber signed an acknowledgment that he had received the informational packet. A little more than two years later, on the morning of May 22, 1997, Mr. Barber was ordered by his supervisor to report for a random drug test at Truman Medical Center. Mr. Barber complied with the directive. Since 1995, Truman Medical Center maintained written procedures for collecting urine for drug tests. Its procedures were consistent with DOT's Regulations. On May 22, 1997, Truman Medical Center's lab technician collected Mr. Barber's urine. It is undisputed that the lab technician collected only a single specimen, not a split sample as required by DOT's Regulations and the School Board's Testing Program. The lab technician had been employed at Truman Medical Center in that capacity for five years, and one of her responsibilities was collecting urine specimens for drug testing. During the five-year period, Truman Medical Center's nurse, who was also the lab manager, had provided the lab technician with some "hands-on" training in the collection procedures followed by Truman Medical Center. During her employment, the lab technician had performed from 1,200 to 1,800 collections for DOT-mandated tests. In May 1997, neither the lab manager nor the lab technician was aware that a split sample, rather than a single sample, collection method was required by DOT's Regulations and by the School Board. After Mr. Barber's urine sample was collected, he signed step 4 of the custody and control form, which states as follows: 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 attached to each bottle is correct. The lab technician followed the proper procedures for the collection of the single urine sample.1 Mr. Barber's urine sample was sealed in a specimen container and forwarded to the laboratory, Quest Diagnostics in Teterboro, New Jersey, for testing. The specimen container was forwarded in a sealed, tamper-proof box, together with the custody and control form. The urine specimen received by Quest Diagnostics was not tampered with during transport. Also, at the laboratory, the specimen was not tampered with or mistaken for another specimen. There is no evidence to indicate, and an inference is made, that the laboratory did not make a notation that a split sample was not received. Further, an inference is made that the laboratory proceeded on the basis that the urine sample was a single, not a split, urine sample. Quest Diagnostics performed a screening test and a confirmation test (a second testing method) on the urine specimen. The testing of the urine specimen was performed in accordance with DOT's Regulations. There were no irregularities as to chain of custody, calibration of laboratory equipment, and quality control. A laboratory report was issued. The screening test on Mr. Barber's urine specimen was positive for the presence of marijuana. The confirmation test was also positive. A positive result indicates that anywhere from a couple of days to two and one-half weeks, Mr. Barber had taken marijuana into his body. The laboratory results were certified. In accordance with DOT's Regulations, the positive results were forwarded to the Medical Review Officer (MRO) assigned to Mr. Barber's case. The MRO was employed by National Medical Review Offices, Inc., in Los Angeles, California. On May 28, 1997, six days after Mr. Barber's urine sample was collected, the MRO called Mr. Barber to discuss the positive results of the tests. The telephone call was made pursuant to DOT's Regulations. During the telephone discussion, Mr. Barber denied that he had used or had ever used marijuana, but provided no information to the MRO which tended to provide a medically alternative explanation as to the cause of a positive test. The MRO informed Mr. Barber that he had 72 hours to request a re-test or a re-analysis. An inference is drawn that Mr. Barber expressed an interest in a re-analysis or a re-test as a result of Mr. Barber accessing a recorded message which provided information regarding the re-test or re-analysis. Mr. Barber accessed the recorded message. The message stated, among other things, that Mr. Barber, as the donor and a DOT regulated employee, had 72 hours after the discussion with the MRO to request a re-analysis; that the urine sample would be forwarded to another certified laboratory for testing; that the cost for the re-analysis was $125.00; and that payment must be made within five (5) working days. Mr. Barber did not request a re-analysis of the urine sample because he was unable to pay the cost of the re-analysis. Mr. Barber was aware that, pursuant to the collective bargaining agreement between the School Board and the bargaining unit of which he was a member, he was responsible for paying the cost for the re-analysis. However, Mr. Barber was unaware that he was not required to pay the cost for the re-analysis prior to the re- analysis being performed. The evidence is not persuasive that the recorded message notified Mr. Barber that his employer may require him to re-pay the cost for the re-analysis. However, the evidence is persuasive that, had Mr. Barber known that he was not required to pay the cost for the re-analysis up front, he would have requested the re-analysis. At no time was Mr. Barber or the MRO aware that a split sample had not been collected. According to DOT's Regulations, had Mr. Barber requested a re-analysis, the MRO would have been notified at that point that no split sample was available for a re-analysis, and the MRO would have cancelled the test and reported the testing as being negative, not positive. As a result of Mr. Barber not requesting a re-analysis, the MRO reported the test results as positive to First Lab, the School Board's third party administrator for the Testing Program. In turn, First Lab reported the positive results to the School Board's Personnel Director and drug manager, who reported the positive results to the School Board's Executive Director of Support Services. School Board Policy GBEC, "Drug-Free Workplace," provides in pertinent part: No School Board employee shall unlawfully . . . possess, or use on or in the workplace . . . marijuana. . . . Workplaces in the District shall be considered as work performance sites; School Board property; school-owned vehicles or school-approved vehicles for transporting students to and from school or school activities; and off-school property during any school-sponsored or school-approved activity, event, or function in which students are under District jurisdiction. As an employment condition, individuals shall: abide by the provisions of this School Board Rule. * * * The School Board based on the Superintendent's recommendation shall take one (1) or both of the following actions within thirty (30) days of receiving notification as described in Subsections (1)(b) and (2) herein: Initiate appropriate disciplinary action against the employee which may be nonrenewal, suspension, or dismissal of employment as provided in Sections 230.23(5) and 231.36, Florida Statutes. Allow the employee to participate in a drug abuse assistance or rehabilitation program approved by the School Board. Failure of an employee to satisfactorily complete such program may result in nonrenewal, suspension, or termination of employment. The School Board shall offer assistance and information on drug abuse to maintain a drug-free workplace by providing School Board employees with * * * (c) An Employee Assistance Program or access to such a program to provide counseling, treatment, or rehabilitation. School Board Policy GDQD, "Discipline, Suspension, and Dismissal of Support Staff," provides in pertinent part: Noninstructional staff members may be suspended from duty by the Superintendent or the School Board. . . . Prior to making a recommendation for dismissal, an administrative investigation shall be completed and an informal hearing shall be conducted at which time the employee shall have an opportunity to refute the charges or provide additional information or evidence. When a recommendation for dismissal is made by the Superintendent, good and sufficient reasons shall be stated. A noninstructional staff member may only be dismissed by the School Board's action. The School Board shall take final action on the Superintendent's recommendation. Any suspension or dismissal shall be pursuant to Florida Statutes. * * * Cause for dismissal shall include, but not be limited to: * * * (c) Reporting to work under the influence of intoxicants or possessing alcohol or illegal drugs while on the job [refer to the School Board Rule entitled "Drug-Free Workplace" (File: GBEC);. . . . Even though the above School Board policies do not provide for mandatory termination from employment for employees who test positive in the School Board's Testing Program, the established practice of the School Board is to terminate such employees. The rationale for the School Board's established practice is that, because the results of a positive DOT drug test does not indicate precisely when the employee used drugs, the School Board has decided to "err . . . on the side of children" and terminate the employee. Prior to Mr. Barber, four employees had tested positive. Of the four, two employees resigned, one employee never returned to work, and one employee was terminated. Regarding discipline, the collective bargaining agreement, Section 12: "Drug and Alcohol Testing," provides in pertinent part: The purpose of drug and alcohol testing is to deter the use of drugs and alcohol in the workplace by establishing standard procedures for drug and alcohol testing for all employees required to hold a commercial driver's license. . . . The School Board shall be responsible for the cost of drug and alcohol testing of employees with the exception of administrative and legal challenges to test results, which shall be paid by the employee. * * * Return to Duty Testing All employees who previously tested positive on a drug or alcohol test must submit to a Return to Duty Test and test negative prior to returning to duty. Follow-up Testing Unannounced follow-up alcohol and/or controlled substance testing as directed by a substance abuse professional in accordance with the FHWA Regulations shall occur when it is determined that a covered employee is in need of assistance in resolving problems associated with alcohol misuse and/or use of drugs. The number and frequency of follow-up testing shall be determined by the substance abuse professional. If an employee elects to request additional testing of the split urine sample, the employee shall be required to pay for the test. Positive Tests 1. Employees who have a confirmed positive drug or positive alcohol test may be disciplined, up to and including discharge. The Board may, if the circumstances so warrant, offer rehabilitation. If the rehabilitation is offered and accepted by the employee, the employee will be responsible for all costs associated with participation in the rehabilitation program. The informational packet of materials provided to employees, regarding the School Board's Testing Program, provides in pertinent part: Under what circumstances will a driver be subject to testing? * * * Return -to-duty testing: . . . Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a verified negative result for controlled substance use. In the event a return-to-duty test is required, the driver must also be evaluated by a substance abuse professional (SAP) and participate in any assistance program prescribed. Follow-up testing: Following a determination that a driver is in need of assistance in resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure that the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the substance abuse professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first 12 months. * * * What procedures will be used to test for the presence of controlled substances or alcohol? Controlled Substances All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). * * * What are the consequences for drivers found to have violated the prohibitions of this rule? Drivers who are known to have engaged in prohibited behavior, with regard to alcohol misuse or use of controlled substances, are subject to the following consequences: -- Drivers shall not be permitted to perform safety-sensitive functions. -- Drivers shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol or use of controlled substances. -- Drivers shall be evaluated by substance abuse professional (SAP) who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use. -- Before a driver returns to duty requiring performance of a safety-sensitive function, he/she shall undergo a return-to-duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substances return-to-duty test with a verified negative result if the conduct involved controlled substance use. -- In addition, each driver identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the driver has followed the rehabilitation program prescribed. -- The driver shall also be subject to unannounced follow-up alcohol and controlled substances testing. The number and frequency of such follow-up testing shall be as directed by the SAP, and consist of at least six tests in the first 12 months. The School Board's Director of Transportation admits that rehabilitation is a potential alternative to dismissal. However, the Director of Transportation is of the opinion that parents of children would have no confidence in a school bus driver who has gone through drug rehabilitation; and she, therefore, agrees that school bus drivers who test positive for drugs should be terminated. The Director of Transportation did not present any basis for her opinion. By letter dated May 30, 1997, the Superintendent of Monroe County Schools notified Mr. Barber, among other things, that he was suspended, with pay, until the next School Board meeting, and that a conference for the record would be held prior to the School Board meeting. On June 6, 1997, a conference for the record was held. Among those in attendance were Mr. Barber and the School Board's Executive Director of Support Services. The conference for the record was, among other things, a fact-finding meeting regarding Mr. Barber testing positive for marijuana. Mr. Barber denied that he had used or had ever used marijuana. Additionally, at the conference for the record, Mr. Barber expressed his concerns regarding the collection procedure used by Truman Medical Center for the collection of his urine sample. The Executive Director of Support Services investigated Mr. Barber's concerns regarding the collection procedure, including talking with the employees at Truman Medical Center and the testing laboratory. The Executive Director concluded that the procedures followed by Truman Medical Center were proper and that the positive result was valid. As a consequence, the Executive Director recommended to the Superintendent that Mr. Barber be terminated. By letter dated August 4, 1997, the Superintendent notified Mr. Barber that, among other things, he was terminated from employment with the School Board. Mr. Barber requested a formal hearing regarding the termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order declaring the drug test results of William Barber to be invalid and reinstating William Barber to his position. DONE AND ENTERED this 30th day of July, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of July, 1998.
The Issue The issue for consideration in this case is whether Respondent's license as a medical technologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Clinical Laboratory Personnel was the state agency in Florida responsible for the regulation of the medical technology profession in this state, and for the licensing of medical technologists in Florida. Respondent, James A. Beyer, was licensed as a medical technologist under license number JC0033961, originally issued on November 27, 1995, and current until June 30, 2000. On February 23, 1996, B.A., a 21-year-old female, was admitted to Naples Community Hospital complaining of increasing abdominal pain. Laboratory tests run on the patient indicated she was undergoing an ectopic pregnancy. A diagnostic laporoscopy was performed, as were subsequent laporotomy and left salpingectomy with lysis of adhesions. It was also determined she had severe pelvic inflammatory disease with bilateral tubo-ovarian complexes. As a result, she was placed on drug and antibiotic therapy which improved her condition. The pathology report based on the surgery performed on the patient revealed no evidence of intrauterine pregnancy in the fallopian tube specimen. She was discharged from the hospital on February 29, 1996. Final diagnosis, as indicated on the discharge summary, was "left ectopic pregnancy" with secondary diagnoses of chronic pelvic inflammatory disease and extensive pelvic adhesions. Notwithstanding the final diagnosis, as noted on the discharge summary, the Agency contends a second pregnancy test done on the patient revealed she was not pregnant. The laboratory tests giving rise to the allegedly erroneous initial diagnosis were processed in the hospital's lab by one of two technologists. Respondent was one of the two. It appears the test results for patient B.A. were confused in the lab with those of another patient. No evidence was presented to show who actually handled and processed B.A.'s specimen, nor was any evidence introduced by Petitioner to show what the laboratory's appropriate procedures were. However, Respondent's initials were entered into the computer as having done the allegedly erroneous test. Respondent labeled the incident regrettable, as indeed it was. He admits that human error caused the mix-up in specimens, but notes that the incident took place in the primary care chemistry section of the laboratory which was staffed by several different individuals. He claims it is impossible to determine who was responsible for the error. Respondent has no memory of doing the procedure and does not believe he did it. His belief is based on several factors. The first of these is that for the error to have occurred, there would have to have been at least two specimens present: that of B.A. and that of another patient. The demographic information relating to B.A. would have to have been placed on the analyzer with the specimen from the other patient. When Respondent does this test, it is his procedure to hold the specimen in his hand while he reads the label and enters the patient identification information into the analyzer computer. Then he labels the serum cup to be used with the same patient identification information as is on the specimen container he is holding. Before running the test, he verifies the identification number on the test sample cup against the identification number in the computer, and it is inconceivable to him that he would have picked up another patient's sample and placed a portion of it on the instrument instead of the sample on which he was working. Another reason he believes he did not commit the error is that the incident was thoroughly and promptly investigated by laboratory and hospital personnel, and the human error cause was treated without placing blame on anyone. No disciplinary action was taken against him by the hospital, and he is still employed by Naples Community Hospital in the laboratory in the same position as before the incident occurred. His annual ratings before and after the incident have been "meets" or "exceeds" standards. Respondent is of the opinion that the Department of Health's investigation into the incident was superficial at best and lacks concrete evidence to support the claims of misconduct made. Petitioner presented no information to indicate what are the appropriate procedures to be followed in the laboratory for the procedure in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Laboratory Personnel enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James A. Beyer 2501 8th Street West Lehigh Acres, Florida 33971 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
