Findings Of Fact The Respondent, Solomon D. Klotz, M.D., at all times pertinent hereto, has held a current, valid medical license number ME 0002269, issued by the Board of Medical Examiners, Department of Professional Regulation, which is the agency charged with enforcing Chapter 458, the "Medical Practice Act," as it relates to qualification for licensure and standards for regulating medical practice of physicians licensed in the State of Florida. The Respondent is also board- certified by the American Board of Internal Medicine in internal medicine and is board- certified in the field of allergy and immunology by the American Board of Allergy and Immunology. The Respondent obtained his M.D. Degree from New York Medical College in 1937, obtaining a Masters from that institution in 1942. He was licensed in New York in 1938 and was made a diplomate of the National Board of Medical Examiners in 1938. He was issued his Florida license in 1941. He served in the Medical Corps of the United States Army in World War II and during the years 1945 and 1946 was a clinical instructor at New York Medical College, and a research fellow at Metropolitan Hospital Research Unit in New York. The Respondent has practiced in his specialty field of internal medicine as well as allergy and immunology in Florida for many years. He is presently a clinical professor at the College of Health of the University of Central Florida, and an adjunct professor at the Department of Biological Sciences at the University of Central Florida. Respondent is presently on the medical staffs at Winter Park Memorial Hospital, Florida Hospital, Orlando Regional Medical Center and Humana Hospital/Lucerne, with a senior consultant rating at each of the above hospitals. The Respondent is a member of 21 professional societies and was a founding member of the Salk Institute for Biological Studies and, the board of the Joint Council of Allergy and Immunology. He has served as president of the American College of Allergists, the Florida Allergy Society, Southeastern Allergy Society, and is president of the medical staff of Florida Hospital in Orlando. The Respondent has published or presented more than 50 research papers, seven of which have been published within the past three years in such journals as the Annals of Allergy, the Journal of the Florida Medical Association, the Journal of the American Academy of Allergy and Immunology and the American Heart Journal. Concerning the disease or condition most pertinent to the charges in the administrative complaint, the Respondent published a paper jointly with Dr. Von Hilsheimer in 1970 concerning minimal brain dysfunction, attention disorders and the diagnosis of functional narcolepsy. Dr. George Von Hilsheimer was accepted as Respondent's expert witness concerning the diagnosis of narcolepsy and the various forms or manifestations of narcolepsy and the treatment thereof. He is a licensed psychologist in the State of Florida, having been educated at the University of Miami with postgraduate work at the University of Chicago. He interned in psychology at the Corsack Clinic and the Seabrook Institute in San Francisco. He completed his Ph.D. in psychology with a multiple major in neuropsychology, psychoimmunology and psychotherapy. He is an associate fellow in the Society for Clinical Ecology, a consultant to the Science Advisory Committee of the Environmental Protection Agency as a neuropsychologist and behavioral toxochologist. He is eligible for board certification by the Academy for Psychosomatic Medicine and the American Academy of Behavioral Medicine. He has published numerous reference papers and a number of books, one of which books focused on the diagnosis of minimal brain dysfunction and the issue of psychosomatic versus somatic causes for behavior. He has presented two papers in conjunction with the Respondent on the issue of minimal brain dysfunction, tension disorders and the diagnosis of functional narcolepsy. Since 1980, Dr. Von Hilsheimer's practice has been split between psychotherapy and psychoimmunology. In the past ten years he has presented numerous continuing education workshops for physicians, which courses were certified by the American Medical Association. Dr. Dale K. Lindberg, M.D., was accepted as an expert witness for the Petitioner regarding the pharmacological effects, uses and indications of the drugs related to the charges in the administrative complaint. Dr. Lindberg has been a licensed physician in the State of Florida since 1959. He is board certified in nuclear medicine. He took a residency in nuclear medicine at Mt. Sinai Hospital in Miami Beach between the years 1974 and 1977. Since 1973, his practice has been limited to primarily that of supervising methadone maintenance programs and clinics. Prior to 1973 his practice was in the area of family practice, as well as nuclear medicine. He is a member of the Broward County Medical Association, Florida Medical Association, American Medical Association, Broward County Family Practice Association, as well as the Society of Nuclear Medicine. Dr. Lindberg has never treated a patient with narcolepsy nor has he seen patients exhibiting the various kinds of narcoleptic behavior. METHAQUALONE PRESCRIPTIONS; COUNTS I, II AND III The first three counts in the administrative complaint concern prescriptions written June 24, 1982, for allegedly excessive and unjustified amounts of a controlled substance, methaqualone, prescribed to patients Harri Klotz (Count I) , Sam Meiner (Count II) and Charles Meiner (Count III). Those prescriptions consisted of 121 sopor (150 mgs) for Harri Klotz; 189 parest for Sam Meiner; and 34 quaaludes for Charles Meiner, all of which are methaqualone medications. The Respondent received a telephone call on or shortly before June 24, 1982, the date the prescriptions were written, from a pharmacist whom he regularly dealt with, who informed him that, inasmuch as, effective July 1, 1982, he would be unable to fill methaqualone prescriptions due to a change in the law by which it became a Schedule I drug, that he would make available the small quantity of methaqualone remaining in stock to the Respondent for his patients who required the drug. The Respondent acknowledged having a few such patients and accordingly wrote prescriptions for the above odd numbers of capsules to patients whom had been regularly receiving methaqualone medication for a period of time previously. Patient Harri Klotz is the Respondent's wife. She has been a patient of Respondent since approximately 1940. She suffers from generalized osteo- arthritis involving mainly the hips, which was first diagnosed in 1967. Due to progressive severity of the disease she received surgery in October, 1970, in Germany, for replacement of both hip joints with artificial prosthesis. Since that time the right hip prosthesis joint cracked, causing her severe, chronic pain which caused her great difficulty in sleeping. After taking numerous combinations of medicine, Mrs. Klotz was found to respond most effectively to methaqualone, which induced sleep in spite of the pain, without undesirable side effects the next morning. She ultimately had the right hip prosthesis repaired. Her medical records indicate that this medication had also been prescribed for her by her treating physicians when the prosthetic devices were implanted. In 1981 she again began experiencing the same type of agonizing, chronic pain in her left hip and consulted an orthopedic surgeon at regular intervals concerning it. It was not until November, 1952, however, that the diagnosis was made that her left prosthesis had also broken. During the various attempts to diagnose the cause of this problem with her left hip, she was experiencing severe, chronic pain. Finally, after a third stint of surgery the left hip prosthesis was replaced and her symptoms ultimately improved. In the meantime however, on October 14, 1981, Respondent purchased 1,000 quaaludes for his wife. He did not dispense the entire lot to her, rather she was given 30 capsules at a time for use in inducing sleep during the period when she suffered from her painful condition at intervals of one and one-half to two months. The Respondent carefully monitored her dosage and kept the balance under lock and key at his office, duly recording on a dispensing record the capsules actually given to his wife on each occasion. On June 24, 1982, before methaqualone became a Schedule I Controlled Substance, he last prescribed that substance for his wife when he wrote the prescription for 121 sopor. He has not since prescribed a methaqualone substance to his wife. On June 24, 1982, the Respondent prescribed methaqualone to Sam Meiner. Mr. Meiner (Respondent's counsel) has been a patient of the Respondent since approximately 1968. Be suffers from a severe, chronic painful condition called regional enteritis, a condition characterized by severe, chronic pain and acute bowel spasms associated with acute exacerbations of the enteritis condition. As a result of this condition he has had two bowel resection surgeries, during the course of which surgeons removed approximately six feet of his small intestine. He has suffered from this disease chronically for approximately 18 years, having his first surgery in 1967 and the second in 1977. "hen the enteritis condition became acutely inflamed after his second surgery, he once again sought Respondent's medical advice. He has been a continuous patient of the Respondent ever since that time, seeing him almost on a weekly basis. Included in the total medical care Respondent has given this patient is a prescription of methaqualone for its beneficial soporific and antispasmodic effects designed to curtail the severity and duration of the bowel spasm incidents. Other physicians, as well as Respondent, in treating this patient have attempted many other combinations of medications before the Respondent and patient determined that methaqualone was the most effective modality. Since being under the Respondent's care with attendant methaqualone medication, the patient has required no hospitalization and has been able to lead a substantially normal existence, even though this disease or condition if unsuccessfully treated can ultimately prove fatal, especially if additional such surgical procedures are resorted to. Witness Meiner was shown to have no abnormal adverse effects nor physical or psychological dependence on the drug. It is now no longer legally obtainable, the patient being afforded his last prescription therefor on June 24, 1982, some six days before the prescription of the drug became illegal. On June 24, 1982, the Respondent prescribed 34 methaqualone capsules to Charles Meiner. Charles Meiner (also counsel for Respondent) suffers from a chronic, severe back injury involving a ruptured or degenerative disc. He periodically suffers excruciating, chronic back pain, resulting in his inability to sleep. He has been a patient of the Respondent since 1969. In 1973 he required hospitalization due to the severity of the back pain. lie has seen the Respondent for this problem at regular intervals ever since. He had been prescribed methaqualone on a number of occasions prior to June, 1982, as the medication helps his insomnia resulting from the chronic back pain, without imposing any adverse effect the following morning or inhibiting his ability to function in the legal profession. Be has never taken more than one tablet per day and some days only a half tablet during the course of his back pain flare- ups. In May of 1982, his back condition became particularly severe, with persistent pain. Because of this exacerbation of his back condition, he was given a prescription for 34 quaalude tablets on June 24, 1982, to relieve his pain and enable him to sleep. During the time Respondent prescribed methaqualone to these three above-named patients, methaqualone was an acceptable medication for relief of the symptoms these patients exhibited. Petitioner's witness Dr. Lindberg acknowledged that the prescribing of methaqualone by the Respondent to these patients on or before July 1, 1982, was for a medically justifiable purpose, and that the dosages involved were within recommended daily dosages for the treatment of the symptoms exhibited by these patients, as depicted in the Physician's Desk Reference (PDR) a work relied on by both parties throughout this proceeding. AMPHETAMINE PRESCIPTIONS: COUNTS IV, V, VII, XI, XII, XIII, XIV, XVI, XVII, XVIII and XIX. The prescription of amphetamines became restricted as to use by the enactment of Section 458.331(1)(cc) , Florida Statutes, effective August 30, 1980. This restricted the prescription of any drug which is an amphetamine or a sympathomimetic amine drug (a Schedule II drug) except, as pertinent here, for the condition of narcolepsy. Prior to the restriction of the drug, the Respondent had prescribed such drugs for short-term use for patients who were attempting to embark on a successful weight-control program. The Petitioner's expert witness, Dr. Lindberg, acknowledged that this was a medically appropriate use of this type of medication at the time and that he himself had made similar prescriptions for similar purposes. The Respondent conceded that as of July 3, 1980, that he was not aware of the change in the legal status of amphetamine type drugs by the enactment of the above statute, and did not become aware of such restrictions until the pharmacist with whom he regularly dealt informed him that he could not prescribe Biphetamine, Dexedrine or other sympathomimetics unless the patient had a narcoleptic condition. Upon becoming aware of this restriction after August 30,1980, the Respondent discontinued use of those drugs except for the treatment of narcoleptic symptoms in patients. Dr. Lindberg opined that the only type of narcolepsy he would recognize was "ideopathic narcolepsy." By this he meant that he would only diagnose narcolepsy when all four recognized symptoms are present: excessive daytime sleepiness, cataplexy (a condition when muscles become limp) , hypnogogic hallucinations (dreams shortly before going to sleep or upon awakening) and sleep paralysis whereby the patient is unable to move, although the limbs are not rigid. Dr. Lindberg has never treated a patient with narcolepsy nor has he ever observed a patient exhibit narcoleptic behavior in his practice. Both the Respondent and Dr. Von Hilsheimer, the Respondent's expert witness on the subject, have studied and treated this condition and published recognized research papers on the subject of narcolepsy. Further, the Respondent in connection with his speciality in the field of allergies, has performed testing regarding patients with certain food sensitivities and has observed that some of them will exhibit narcoleptic symptoms as a reaction to certain foods. Dr. Von Hilsheimer, as delineated above, has extensive experience in the diagnosis and treatment of narcolepsy in its various forms and in teaching recognition of the condition to doctors through continuing education courses. Idiopathic narcolepsy, the extreme or classic view of the disease, may involve exhibition of all four of the above symptoms in a patient, however, only 10 percent of patients legitimately diagnosed as narcoleptic present all four symptoms, and therefore most of the scientific and medical community uses the term "narcolepsy" In a broader, more general sense to mean essentially excessive, inappropriate daytime sleepiness, especially at inappropriate times. In addition to narcolepsy being a primary affliction, it can also be a subsyndrome, or secondary disorder related to a different medical problem. It can be permanent or can be a transient condition and can be a by-product of unusual psychological or physical stress. The Respondent prescribed a small dosage of an amphetamine for Nina Balabon between January 11, 1980, and September 17, 1982, at various times. (Count IV) Ms. Balabon is a 92 year old woman who has been taking a very small dosage of Dexedrine for many years. The dosage is substantially below that allowable for such a patient as conceded by the Petitioner and delineated in the Physician's Desk Reference. Ms. Balabon lives alone in Woodstock, New York, and is the foster mother of the Respondent's wife. She had been under the care of another physician who prescribed this course of treatment and drug for her so that she could remain alert enough to independently function and take care of herself in her own home. She is home-bound and after her doctor's death, she was unable to secure another doctor who would make house calls. She called upon the Respondent who is, in effect, a family member, and financially supports her, and asked him to prescribe the medication for her, in conjunction with which she retained the services of a visiting nurse. In her old age she has become afflicted with lassitude, inappropriate and excessive daytime sleepiness, depression and a diminished "will to live." The Respondent visits her in Woodstock, New York, periodically and he or his wife, telephone her at least once a week. A visiting nurse checks on her condition weekly and reports to the Respondent on her physical condition. The Petitioner's expert witness, Dr. Lindberg, has never seen this patient, but surmised upon her recorded weight that she is slightly malnourished. Accordingly, he opines that it is inappropriate to give a person with such a condition (slight malnourishment) amphetamines to curb her appetite and provide her "pep." The Respondent, however, did not prescribe amphetamine for this purpose. Be found, in the exercise of his medical judgment that she exhibits definite symptoms of narcolepsy. The dosage is extremely small and the patient is not shown to suffer any adverse effects therefrom. It was not shown that the dosage curbed her appetite, and indeed, Respondent established that the patient is not malnourished. She is a very small, slightly built woman and her mere recorded weight is not an indication in itself of malnourishment such that the prescription involved would be contraindicated. Petitioner's expert witness, further was unaware that the patient exhibited symptoms of narcoleptic behavior, and admitted that otherwise the dosages were quite small and not excessive for such a patient. Dr. Lindberg merely opposed the prescription of the medication because he believed that the law changed regarding the use of this drug, such that after August 30, 1980, it is only permissible for narcoleptic symptoms. In any event, the Respondent's diagnosis of the patient was uncontradicted and the 92 year old patient was shown to benefit from this treatment of her condition because it permitted her, with the assistance of the visiting nurse, to continue living independently rather than suffering commission to a nursing home or other institutional facility. Count VII concerns alleged prescriptions of amphetamines to one Doris Calloway between February 16, 1982 and October 13, 1982. Petitioner failed to introduce any evidence or testimony concerning this count. With regard to Count XI, Respondent prescribed on only one occasion, 50 Biphetamine capsules for Lori Carroccia on September 29, 1980. At the time this prescription was written and issued, the Respondent was unaware of the recent restrictions imposed by the legislature on the purposes for which amphetamine-type drugs could be prescribed by the passage of Section 458.331(1)(cc), Florida Statutes, effective July 1, 1980. The Respondent had known this patient for approximately six years and she was his nurse, employed at his clinic at the time the prescription was written. The single prescription was written when she complained to him of difficulty in starting a weight loss program and asked for his assistance. Prior to writing the prescription, he checked Ms. Carroccia's physical health, checked her weight and blood pressure, and indeed was already aware of her medical history because of his close association with her. During the entire two months she received this medication Respondent saw her on a daily basis and monitored her progress. The medication proved to be an effective means for her to develop a successful weight loss program. She suffered no adverse effects from receiving this drug. The Respondent only prescribed this medication once, in a small dosage to Initiate her weight loss program and not for the purposes of maintaining weight loss or a particular weight level through long-term prescriptions. Petitioner's sole expert witness conceded that the dosages were not excessive and were medically indicated in the PDR for the initiation of such a weight loss program. Petitioner's expert witness admitted that his opinion regarding inappropriateness of the prescription was solely predicated on the change in the legal status of the drug. The Respondent prescribed an amphetamine medication to patient Evelyn Lilly between April 14, 1981 and December 19, 1981 (Count XII). Ms. Lilly had been his patient since 1979 for allergy evaluation and treatment to alleviate chronic symptoms of runny nose, throat infections and irritations and sinus headaches. Respondent gave her an allergic evaluation in response to these symptoms. In completing her patient history he noted that Ms. Lilly suffers from rheumatism and arthritis. During the course of her allergy treatments Ms. Lilly's weight began increasing dramatically, with a worsening of her arthritic condition. Respondent noted she was markedly fatigued and became concerned about her general physical condition. In response to her fatigue or lassitude complaints, he initially performed a thyroid test in an effort to determine the cause of her lassitude and rapid weight gain. That test was inconclusive. lie then decided that between the complications of arthritis and her allergies he must reduce her weight before he could successfully treat either of those conditions. He initially prescribed Tenuate Dosepan which proved ineffective and then Ritalin, which also proved ineffective. She was then prescribed a course of Biphetamine. She responded dramatically to this medication with relief of her lassitude and the loss of 30 to 40 pounds. After noting that the initial sympathomimetic type drugs prescribed were ineffective and that the change to the Biphetamine produced markedly successful results, Respondent came to the conclusion that the patient was narcoleptic. Narcolepsy sometimes is not alleviated with the prescribing of one type of sympathomimetic drug when the switch to treatment with another type will suddenly prove to be successful in alleviating the narcoleptic symptoms. The doctor's chart for this patient did not definitely indicate the purpose of the prescription of the amphetamine medication, although Dr. Klotz candidly responded in his testimony that it may have been in part for weight control because a reduction in weight would help alleviate her arthritic joint problems. However, inasmuch as narcolepsy can be indicated when one type of sympathomimetic drug will not relieve its symptoms and another type will and since is. Lilly in her reaction to the medications displayed this phenomenon, Respondent, in the reasonable exercise of his medical judgment concluded that she displayed symptoms of narcolepsy. This view is corroborated by Dr. Von Hilsheimer. He has had more than 1,000 patients referred to him over the years by the Respondent. Approximately one-third of these patients were obese and yet he was only aware of four such patients who were treated with biphetamines by the Respondent. Be thus concludes that the Respondent used some differential reason other than mere weight control for prescribing biphetamine which led to the diagnosis of symptomatic narcolepsy with Ms. Lilly. The Petitioner's expert witness once again felt that the Biphetamine and Ritalin prescriptions for Ms. Lilly were inappropriate and excessive, but acknowledged that his criticism of these prescriptions was predicated solely on the fact that the medication had become illegal for prescription for weight control purposes before Ms. Lilly's prescriptions were made. Dr. Lindberg ultimately agreed however, after consulting the PDR that the amounts and types of medication were within appropriate indications, dosage limits and amounts and thus the amounts prescribed were within the reasonable exercise of the Respondent's judgment as a physician for the symptoms displayed, and alleviated them. Concerning this patient, as with all the others involved herein, Petitioner's expert witness bases his testimony merely on the doctor's patient chart which does not specifically refer to narcoleptic symptoms. Respondent admits his records are not detailed in all cases, since the patients were not referrals, but were his patients for many years such that he was intimately familiar with their histories and conditions. Based on the lack of reference to narcoleptic symptoms in the records themselves, Dr. Lindberg opined that the prescription was medically inappropriate, however, the mere absence of reference to that condition in the medical records alone does not establish the medical inappropriateness of the prescription, especially in view of the Respondent's showing (corroborated by Dr. Von Hilsheimer) that indeed Ms. Lilly was narcoleptic. Mr. Emmett Peter was prescribed biphetamines between October 16, 1979 and September 14, 1982 by the Respondent (Count XVI). Mr. peter has been Respondent's patient since 1969 and `gas definitely diagnosed as a narcoleptic individual by a physician who treated him prior to that time and related that fact in his initial medical history provided Respondent. At the time he and his wife became patients of the Respondent, Mr. Peter was receiving a medication called Obedrin, which is a dexedrine-type drug. During the entire time he received medication from the Respondent, he periodically visited the Respondent on his own behalf, as well as accompanying his wife to the Respondent's clinic for treatment, at which times the Respondent also observed Mr. Peter. Although the Respondent was unaware of the change in the law regarding restriction of the use of amphetamines to the treatment of narcolepsy at the time he prescribed Mr. Peter's medications at issue in this case, he continued to prescribe the medication for Mr. Peter after he became aware of the law, because he definitely diagnosed Mr. Peter to be a narcoleptic. The Respondent's expert witness, Dr. Von Hilsheimer, has seen both Mr. and Mrs. Peter on a professional basis as a researcher. He had numerous occasions to observe Mr. Peter, approximately twice a week from March, 1980 through May, 1982. Be became quickly aware of the fact that Mr. Peter was narcoleptic due to the fact that Mr. Peter, when waiting for his wife at Dr. Von Hilsheimer's office, often fell asleep in a very dramatic way, sometimes even when Dr. Von Hilsheimer was engaged in conversation with him. It was thus established that Mr. Peter, based upon his medical history and the personal observation of both Dr. Klotz and Dr. Von Hilsheimer, suffers from a minimal brain dysfunction manifested as excessive, inappropriate sleepiness. Dr. Von Hilsheimer further noted that Mr. Peter's condition is also characterized by moderate cataplexy, another symptom of narcolepsy. There is no question that Mr. Peter suffers from narcolepsy, therefore the prescription of amphetamine medications to Mr. Peter was clearly medically appropriate and the Petitioner admitted that the amounts of the medication were not excessive. On February 24, 1981, Charne D. Porter, the Respondent's daughter was given a prescription for 30 10-mg Ritalin tablets (Count XVII). The Respondent has been her treating physician most of her life. At the time the prescription was written she was editing and producing a motion picture. She was working very long hours and complained to Respondent that she was having difficulty staying awake during all times of the day and in completing her film-editing work. Prior to this period of time however, her typical work schedule involved such long hours with no apparent ill effects. This was not an unusual work schedule for her. Dr. Von Hilsheimer has known Ms. Porter since 1979 and she has consulted him professionally in the past. He was quite familiar with the patient history and had occasion to see her during the time the medication involved was prescribed. During this period of time he found that when she was attempting to do film-editing work which is normally a stimulating, arousing type of endeavor, she did not have her normal responsiveness and while talking to him would doze off in the middle of a conversation in his office. The work she was trying to do at the time was quite arousing under unusual conditions of lighting and interest and yet she would still doze off at inappropriate times during the day while working. The doctor did not find that her long work schedule or hours were responsible for such a condition. Ms. Porter had a debilitating illness consisting of the lingering aftereffects of a form of hepatitis and this, coupled with the stress related to her film-editing job (for which she was obtaining treatment through self-hypnosis training by Dr. Von Hilsheimer) caused her to lose her normal "arousal ability." Because of this she did have an attack or episode of transient narcolepsy as diagnosed by Respondent and Dr. Von Hilsheimer. During visits in his office he observed her display three of the four commonly recognized symptoms of narcolepsy during approximately the same period of time in which she received the Ritalin prescription. These inappropriate sleep episodes were a transient condition and Ms. Porter recovered from that condition and is functioning well personally and professionally. The small original Ritalin prescription needed no renewal. The use of the Ritalin prescription was a reasonable exercise of Respondent's medical judgment and approach to alleviating the transitory narcolepsy symptoms exhibited by Ms. Porter and caused her no harm whatever. Patient Sandy Lee Bradford was prescribed Biphetamine between December 14, 1980 and December 15, 1981. She is the daughter of the Respondent's secretary and has been the Respondent's patient for many years. On December 15, 1980, due to her complaint of fatigue, daytime sleepiness episodes, along with inability to lose weight and excessive weight gain, the Respondent first prescribed biphetamines to her. Over a one year period she subsequently received four other prescriptions of biphetamines. Each time she received a new prescription, she personally saw and consulted with Dr. Klotz. At the time the prescriptions were administered she had recently been divorced and was suffering unusual stress and emotional anxiety related to that divorce, which Respondent believed had a direct effect on her sudden weight gain and inability to lose weight. At the time the Respondent made these prescriptions, he was as yet unaware of the change in the legal status of amphetamine-type drugs such that it was no longer legally permissible to prescribe them for weight loss purposes. The Respondent candidly admitted that he primarily prescribed the drugs for assisting her in embarking on a successful weight loss program, not for chronic use. Other anorectic medications had been tried on this patient and had proved ineffective, however, with the judicious prescription and use of the biphetamine medication the patient made substantial progress in losing weight and in alleviating symptoms of fatigue. When Respondent became aware of the change in the legal status of biphetamines, he discontinued that medication promptly and substituted Tenuate Dosepan, which proved ineffective. He then substituted Ionamine which also proved ineffective, in an attempt to avoid prescribing biphetamines for the patient. The biphetamines prescribed were in appropriate, non-excessive quantities for the condition and symptoms exhibited by the patient and successfully alleviated her complaints with no harm to the patient. He discontinued biphetamines because he felt he could not with reasonable medical certainty, diagnose her as a narcoleptic patient. Dr. Lindberg conceded that the prescriptions were medically appropriate, but for the change in the law regarding their permissible use, and that change was the sole basis for his opinion that the prescription was inappropriate. Patient Trudy Heintz was prescribed Dexedrine between January 3, 1980 and October 29, 1982. She has been a patient of the Respondent since the early 1950's. She has displayed, over many years, symptoms of excessive, inappropriate daytime sleepiness and a simple inability to perform her employment duties as a result. The Respondent was treating her for phlebitis and arthritis, and thus she is an internal medicine patient. As such the Respondent monitored her physical condition quite closely, making physical examinations including monitoring of blood pressure when necessary. He observed no adverse effects caused by the administration of Dexedrine to this patient, which alleviated her narcoleptic symptoms and enabled her to remain productive and fully functional in her employment and daily pursuits. The Respondent thus diagnosed her as suffering from narcolepsy and established that as an appropriate basis for the prescription of Dexedrine. He continued to prescribe Dexedrine for the patient, even after he became aware of the restriction of its use because he genuinely believes that she is a true narcoleptic. Dr. Lindberg opined that the Dexedrine was inappropriate medication and was prescribed in excessive amounts. He did not believe that Ms. Heintz exhibited narcoleptic behavior, but he had never observed the patient and based his opinion merely upon less than detailed references to narcoleptic behavior in the patient's records. The Respondent, however, established that this patient had been a patient for many years and he was intimately familiar with the physical condition, complaints and medical history, and makes notes only for his own use. Because of his familiarity with her medical history and problems, it was unnecessary for him to make his own notes in sufficient detail so that Dr. Lindberg would be able to thoroughly review the patient's status and treatment indications by looking at her chart alone. Dr. Lindberg, in opining that the dosage was excessive at 30 mg. per day failed to take into account that the PDR provides that the accepted prescription of Dexedrine for narcolepsy is from 5 mg to 60 mg per day with no time limitation as to its use. His opinion as to excessiveness was based on the medical indications in the PDR for obesity only, not for narcolepsy. Such a dosage for this patient was not excessive in view of her proven diagnosis of narcolepsy. Count XXI concerns the purchase on October 14, 1981, of 1,000 quaalude tablets with regard to which it is alleged that the Respondent failed to maintain proper records justifying purchase and disposal of them as allegedly required by Section 21 USC 1306.04(b). Section 21 USC 1306.04(b) has not been placed in evidence in this proceeding, nor has it been made the subject of judicial notice, pursuant to Section 120.61, Florida Statutes. In any event, the 1,000 quaalude tablets were purchased by the Respondent for use by his wife, Harri Klotz. The Drug Enforcement Administration (DEA) Form 222, required to be maintained by the purchaser of such drugs was maintained by the Respondent and his office manager, and a dispensing record also maintained by them shows that the medication was dispensed upon receipt to Respondent's wife. In fact the drugs were established to be retained in the Respondent's office under lock and key and not physically dispensed to the Respondent's wife at one time, rather they were dedicated to her use, but maintained securely on the Respondent's office premises. Mrs. Klotz was then dispensed 30 tablets at a time in approximately one and one-half to two month intervals, and an additional journal card was established by Ms. Lindblom, the office manager, showing the dates when Mrs. Klotz drew down upon that medication in 30 tablet increments which withdrawals were recorded ads "pills dispensed." Additionally, the 130 methaqualone tablets prescribed for Mrs. Klotz on June 24, 1982, were for the purpose of providing her an additional supply to be used in a light, periodic, controlled manner because the drugs were about to become illegal. Later in August or September, 1982, Ms. Lindblom, when she became aware that the additional prescribing of methaqualone might be illegal, upon advice of Mr. Meiner, the Respondent's counsel, elected to dispose of the remaining quaalude tablets at which time 790 of the original 1,130 tablets dedicated to the use of Mrs. Klotz remained at the Respondent's office and were disposed of. Thus the receipt of 1,000 quaalude tablets was duly recorded in Respondent's record and the 30 tablet dispensations of the medication periodically from October 14, 1981 through June 28, 1982, were recorded in a dispensing record in evidence, which record also reflects the disposal of the 790 unused tablets.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That the Administrative Complaint against the Respondent, Solomon D. Klotz, be DISMISSED except as to the minor violations of Section 458.331(1)(h) and (cc) Florida Statutes, proven with regards to Counts XI and XVIII for which, under the circumstances of this case, no disciplinary action should be taken. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of May, 1984. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Sam C. Meiner, Esquire 26 Wall Street Orlando, Florida 32801 Helen C. Ellis, Esquire 1804 Old Fort Drive Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. At all times material hereto, Northpointe was licensed as an assisted living facility with a capacity of 100 beds. Northpointe is located in Pensacola, Florida. Count I As the result of a complaint received by AHCA, Norma Endress, a registered nurse and agency surveyor employed by AHCA, conducted a survey inspection of Northpointe on March 1 and 2, 2002. According to Nurse Endress, the nature of the complaint was an allegation regarding failure to prevent falls. Upon arriving at Northpointe, Ms. Endress spoke with Rochelle Pitt, a Licensed Practical Nurse who is Director of Nursing at Northpointe, made a quick tour of the facility and then asked for the records of five residents. These records included those of Resident 1 and four others chosen randomly. Included within Resident 1's records was an Outcome Planning Discharge Sheet (discharge sheet) from Sacred Heart Hospital dated January 31, 2002. The discharge sheet noted that Resident 1 had a wound on his left heel. The discharge sheet included a section entitled "Post Discharge Medical Appointments" which included the following hand written notation: "Dr Matthew Ethridge (Podiatrist) (illegible telephone number). Date + time to be arranged within the week by daughter." The discharge sheet also included a section entitled "Medications Dose Frequency" which contained the following hand written notation: "Resume pre-hospital meds. Clean and dress left heel (illegible) everyday with antibiotic ointment and dress with gauze." Also included within Resident 1's records was another document from Sacred Heart Hospital which indicates that Resident 1 subsequently was treated in the Emergency Room on February 2, 2002. This document includes a section entitled "Triage," which indicates that Resident 1 was seen in the Emergency Room because of a fall and that Resident 1's chest hurt. The section of the February 2, 2002, Emergency Room document entitled "Physical Exam" indicates that Resident 1 was awake and alert and was accompanied by his daughter. This section also includes the following: "EXTREMITIES: no clubbing, cyanosis, WITH2+ edema, perpipheral pulses intact, motor and sensation intact. BANDAGE ON FOOT NOT CHANGED AS HOME HEALTH NURSING CHANGING REGULARLY." (emphasis in original) During the survey inspection, Nurse Endress also reviewed Resident 1's medication record. According to Nurse Endress, the medication record did not reference the discharge instructions of the physician from the January 31, 2002, discharge from the hospital.1/ Also included in Resident 1's records was a fax cover sheet dated February 1, 2002, from Rochelle Pitt of Northpointe to Dr. Retzloff. The fax cover sheet contained the following hand written notation: "Returned from hospital 1-31-02, needs new health assessment (with) orders for home health to open area L heel. (see discharge instructions) Thanks, Rochelle Pitt." According to Nurse Endress, there was nothing in Resident 1's medication administration record or medical chart to reflect the physician's discharge instructions of January 31, 2002 nor to indicate that Resident 1 received any treatment to his left foot after his discharge from the hospital on January 31, 2002. Mr. M. H. Mikhchi is the administrator of Northpointe. According to Mr. Mikhchi, the type of license held by Respondent does not permit it to do the dressing changes on Resident 1's foot referenced in the doctor's hospital discharge instructions. That is, Respondent asserts that it holds a standard license, not a mental health license or a limited nursing license. According to Mr. Mikhchi, Respondent received a call from the hospital prior to Resident 1's discharge on Thursday, January 31, 2002, informing them that Resident 1 was being discharged. The following day, Friday, February 1, 2002, Nurse Pitt sent a fax to Dr. Retzloff, requesting a new health assessment with orders for home health care to treat Resident 1's heel. The time of day that this request was faxed is not reflected on the fax cover sheet, although Mr. Mikhchi indicated that it was Friday afternoon. The request was necessary because Resident 1's insurance required a physician's order for home health services. According to Mr. Mikhchi, Respondent did not hear back from Dr. Retzloff's office on Friday, February 1, 2002. As a result, the weekend passed without Resident 1 receiving home health care for his heel wound. Mr. Mikhchi acknowledges that Nurse Pitt viewed the heel wound over the weekend although the record is unclear as to whether or not she changed the dressing or applied ointment. Nurse Pitt's actions in this regard were not recorded in Resident 1's record because of the limitation of Respondent's license. Upon Resident 1's return to the facility, Nurse Pitt noted that Resident 1's discharge order stated that Resident 1's daughter would set up an appointment with Dr. Ethridge. As far as Nurse Pitt or Respondent knew, Resident 1's daughter had not set up an appointment with the doctor as of Monday, February 4, 2002. Accordingly, Nurse Pitt called the office of Dr. Ethridge, a podiatrist, on Monday, February 4, 2002, to set up an appointment which was then scheduled for the following day. Count II Shawn Bolander is a registered nurse and a surveyor for AHCA. According to Nurse Bolander, she went to Respondent's facility on April 5, 2002, to conduct a survey visit as a follow-up to a complaint investigation. However, the record contains no evidence as to the nature or subject matter of the complaint investigation to which this was a follow-up survey visit. There is nothing in Nurse Bolander's testimony to indicate that her visit of April 5, 2002, was related in any way to the events discussed above regarding Count 1 or Resident 1. Upon arriving, Nurse Bolander took a tour of the facility and requested a list of residents to select a sample of records for chart review. She reviewed the records of Resident 22/ and found that there was a missing page to Resident 2's medication administration record. She determined that there was a missing page by comparing the physician's orders to the medication administration record for the month of April. That is, Resident 2's resident health assessment mentioned two medications that were not found on Resident 2's medication administration record. Upon discovering that some medications were not listed on the medication administration record, Nurse Bolander spoke to Nurse Pitt. Nurse Bolander requested that Nurse Pitt recopy the second page of Resident 2's medication administration record and provide her with a copy of it prior to Nurse Bolander's departure from Respondent's facility. Nurse Pitt did provide Nurse Bolander with a second page to Resident 2's medication administration record prior to Nurse Bolander's departure from the facility on April 5, 2002. At the top of the second page of the medication administration record appears the following hand written notations: "Re-written 4-5-02 2:15pm RP." This was followed by a notation made by Nurse Bolander which read, "Received 4/5/02 SB @2:35." Page two of Resident 2's medication administration record listed six medications, three of which were designated "PRN." Based upon her review of the medication administration record, Nurse Bolander determined that there was no evidence that Resident 2 actually received any of the medications listed on page two from April 1, 2002 to April 5, 2002. There is nothing in the record to support the allegation in Count II that Respondent's alleged failure to maintain an up to date medication observation record is a repeat violation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint issued against Respondent, Northpointe Retirement Community. DONE AND ENTERED this 8th day of November, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 8th day of November, 2002.
Findings Of Fact The Respondent is a registered nurse who began her employment at South Lake Memorial Hospital on August 29, 1977, and was terminated on April 23, 1980. During her employment, the Respondent received four poor evaluations and/or warnings for her nursing practice. The first warning occurred on August 1, 1979. This warning involved allegations of poor nursing performance by the Respondent. These allegations included the Respondent leaving her unit, failing to properly organize her work, failing to properly restrain a patient, wasting time by running too many EGG strips instead of performing her assigned functions, failing to take vital signs timely when coming onto shift, becoming hostile with the Director of Nursing, and failing to obey the direct order of the Director of Nursing to leave the hospital and go home after an argument on July 12, 1979. Although there was no direct evidence as to most of the allegations, the Respondent admitted to late charting, failing to timely take vital signs, spending time working with ECG strips, and failing to obey a direct order to-go home given by the Director of Nursing. The next evaluation occurred on November 26, 1979. The deficiencies in Respondent's practice as alleged by the Director of Nursing were that the Respondent gave a patient whole blood instead of packed cells as ordered by the physician, failed to verify an error in transcription by the ward clerk which resulted in a patient's x-rays being delayed for a day, and improperly charting when the Respondent noted on the nursing notes that at 9:00 p.m. there was no significant change in a patient's condition, when in fact the patient had left the hospital at 8:30 p.m. The lack of direct evidence of these allegations was compensated for by the Respondent's admissions as she testified concerning the circumstances surrounding why the incidents occurred. The third warning occurred on March 19, 1980. The allegations in the warning concerned the Respondent having shouted at a supervisor, abandoning her patients, allowing two I.V.s to run dry, failing to carry out a doctor's orders, and failing to chart. Again, there was no direct evidence of the allegations, however, the Respondent admitted that she left her duty station because of sickness prior to relief arriving in the unit, failed to properly follow doctor's orders, and failed to chart for the time she was present in the unit prior to her reporting to the emergency room. The fourth and final warning, which resulted in termination, occurred on April 23, 1980. The allegations by the Director of Nursing were that the Respondent hung one-fourth percent normal saline solution rather than the one- half percent normal saline solution ordered by the physician, and that the Respondent failed to administer the 5:00 p.m. medication. Again, the allegations were admitted by the Respondent as she attempted to explain why they occurred. The Director of Nursing testified that during each of these warnings, the Respondent's attitude was that she had done nothing wrong and, therefore, could not improve on her performance. The testimony of the Department's nurse investigator was to the effect that the Respondent's actions failed to meet the minimal standard of acceptable and prevailing nursing practice. The investigator also testified that, in her opinion, a nurse with Respondent's poor attitude could be extremely dangerous in a hospital setting. After many years of difficult and stressful work, many nurses suffer from what is commonly referred to as "burn out" and are no longer useful, and can be dangerous in a high stress area of nursing. Respondent testified in her own behalf and offered an explanation for each allegation presented by Petitioner. Respondent testified that relative to the first warning, even though she only had two patients, she did not have adequate time to do her charting during her shift and, therefore, had to stay two hours late. Respondent further testified that on one occasion she had not timely taken her vital signs because the Director of Nursing had delayed her with a needless confrontation. Respondent testified that she did not leave the facility as ordered on August 12, 1979, because she was afraid that she would be abandoning her patients, and could lose her vacation and sick leave benefits. With respect to the November 26, 1979 evaluation, the Respondent testified that she gave whole blood instead of packed cells because the whole blood was incorrectly labeled as packed cells. Respondent further testified that she became aware of the error after the solution had infused, and that had she looked at the solution earlier she would have been able to see that it was an incorrect blood product, and would have been able to correct the problem. As to the incorrect transcription resulting in a patient's x-rays being delayed, the Respondent stated that it was the ward clerk's responsibility, not hers, to transcribe the doctor's orders. With respect to the 9:00 p.m. nursing notes when the patient had left the facility at 8:30 p.m., the Respondent's response was that she had been aware that the patient was gone, but was summarizing the patient's condition during the entire shift up to the point the patient left. Respondent acknowledge that the nursing notes may have been misleading. As to thee warning of termination on March 19, 1980, the Respondent admitted leaving her unit prior to relief arriving. Her explanation gas that she had been attempting for one hour to get assistance, to no avail. Upon questioning, she admitted that she was-only "a little dizzy" and had diarrhea. On that day she did not chart any nursing care given by her while on duty. The Respondent was caring for twelve patients at that time. With respect to the April 23, 1980 termination, Respondent admitted that she hung the incorrect percentage saline solution, but that she did so because a prior nurse obtained the incorrect solution from a supply room. The Respondent then also admitted failing to give out the 5:00 p.m. medication as ordered, but stated the reason for her failure to administer the medication was her inability to obtain help from her supervisor which was necessary because she was overworked. Respondent also testified that during this time period, she went on rounds with a doctor, and also went to dinner. The Respondent testified that she felt she was a good and qualified nurse. Respondent also testified that she had been fired previously from Leesburg General Hospital. The Respondent believes her attitude to be good and indicated that the hospital was overreacting to a few isolated incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's license to practice nursing in the State of Florida, license number 39108-2, be suspended indefinitely. If the Respondent seeks reinstatement, it will be her responsibility to undergo counseling with a psychologist or psychiatrist, for an in-depth evaluation and treatment, the results of which shall be submitted to the Board of Nursing if and when the Respondent wishes to apply for reinstatement of her nursing license. If the Respondent applies for reinstatement of her license, it shall be her responsibility to demonstrate to the Board that she is able to engage in the practice of nursing in a safe, professional, proficient and legal manner. This demonstration shall include but not be limited to a report by her psychologist or psychiatrist, along with a recommendation from him that she be reinstated to the practice of nursing. 1/ DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 8th day of January, 1982.
The Issue The issues are whether Respondent, as the owner and operator of an assisted living facility (ALF), is guilty of failing to correct seven deficiencies by a followup survey conducted on July 19, 2011, and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has owned and operated an ALF at 567 Northeast 137th Street. On May 26, 2011, Petitioner's surveyor conducted a survey of the ALF in connection with the renewal of Respondent's license. On July 19, 2011, Petitioner's surveyor conducted a followup survey of the ALF to determine whether Respondent had corrected the deficiencies cited in the initial survey. At the conclusion of the May 26 survey, the surveyor conducted an exit conference with Ms. Nelson. The surveyor obtained Ms. Nelson's signature to a form explanatory letter that states: The purpose of this letter is to explain the process now that the survey has been completed. During the exit conference, you . . . were advised of the deficiencies and were requested to write them down. At this time we also established time frames for the correction of each deficiency. You will receive a written report from our office of this survey. The time to correct, however, starts from today, the day of the survey. . . . It is required that each deficiency be corrected by the date established. If a deficiency is not corrected within the required time frame, the facility may be assessed an Administrative Fine by the Central Office in Tallahassee. . . . Additional time may be granted to correct specific deficiencies if a written request is received prior to the original date of correction. This written request must identify the deficiency, by tag number (refer to the deficiency report), to be extended . . .. When the written result of this visit is received, your copy of the report must be made available to the public and residents or participants according to the specific program requirements. . . . Petitioner's surveyor did not mention a deficiency report in her testimony, nor do any of the exhibits refer to or include a deficiency report. Petitioner did not refer to a deficiency report in its proposed recommended order or Administrative Complaint. The surveyor's handwritten notes for the initial survey do not include tag numbers, but her notes for the followup survey supply what appear to be tag numbers for the deficiencies. (Petitioner exhibits, pages 44-46 and 52-53.) Perhaps Petitioner generated a deficiency report after the initial survey, but there is absolutely no indication in the record that it did so or, even if it did, that it provided the deficiency report to Respondent. Interestingly, Petitioner exhibits pages 75-76 are fax cover sheets, both dated August 2, 2011, referencing an attached Form 3020, which is a deficiency report, but Petitioner exhibits omit similar cover sheets for the initial survey. Although the Administrative Complaint identifies the deficiencies for which Petitioner's surveyor cited Respondent, this pleading obviously was not available to Respondent prior to expiration of the time frames for corrections. Also, absent a copy of the deficiency report, Respondent could not obtain an extension of time to make corrections, as this request had to include the tag numbers that are included in the deficiency report, nor could Respondent comply with the directive to post the report at the facility. But the most serious problems arising from Petitioner's failure to provide Respondent with a deficiency report are that Ms. Nelson would not have known exactly what to correct (unless she is a very good notetaker) and would not have known the deadlines for correcting the deficiencies. Given the number and level of detail of the allegedly uncorrected deficiencies, it is impossible to favor Petitioner with the inference that, at the end of the initial survey, its surveyor accurately communicated all of the cited deficiencies and all of the corrective time frames, and Ms. Nelson accurately captured all of this information. As noted in the Conclusions of Law, section 408.811(4), Florida Statutes, provides for a corrective time frame of 30 days, unless Petitioner provides a longer or shorter time frame. The only mention at the hearing of any time frame for correction was the testimony of Petitioner's surveyor, who stated that she gave Respondent 30 days to apply for approval of an emergency management plan. The surveyor did not testify that a 30-day time frame applied to all deficiencies, as she easily might have done, if she had set the same time frame for all of the deficiencies; she testified that a 30-day time frame applied specifically to the requirement of submitting an emergency management plan. Even if the surveyor had testified that she had given Respondent 30 days to correct all of the cited deficiencies, this deadline could not reasonably have expired before Petitioner provided Respondent the deficiency report. The form letter warns that the corrective time frame begins from the date of the completion of the initial survey, but the form letter assumes that Petitioner will issue the deficiency report a few days later. Here, though, the corrective time frames expired before Respondent received the deficiency report, without which, as noted above, she could not even have applied for an extension of any of the corrective time frames. As discussed in the Conclusions of Law, the failure of Petitioner to prove that it provided Respondent with a deficiency report, including a detailed citation of individual deficiencies and a clear time frame for their correction, necessitates the dismissal of the Administrative Complaint. The following findings are provided in case these Conclusions of Law are ultimately not sustained. By May 26, 2011, Resident #1 had undergone a significant change while at the ALF because she had developed a stage 3 pressure wound or ulcer, her activities of daily living (ADLs) had declined, and she had been hospitalized earlier in May. However, Respondent failed to keep written records detailing any changes in the pressure wound, discussing any decline in ADLs, or explaining the reason for the recent hospitalization. By July 19, 2011, Resident #1 had been rehospitalized, but Respondent's records did not disclose why. On May 26, the bed rails were halfway up on Resident #1's bed. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. On July 19, the bed rails were halfway up on the bed of Resident #3. However, Respondent did not have an authorizing order from a physician or consent signed by the resident or her representative. This finding is consistent with Count Two of the Final Order. On May 26, the surveyor examined the MOR for Resident #1. The allegations concerning Resident #1's MOR for the initial survey are impossible to assess because the MOR that Petitioner introduced into evidence is illegible as to critical entries. The allegations concerning Resident #2's MOR for the initial survey are unproved except for the misadministration of Simvastatin, which was to be administered once at bedtime; the initialed MOR reveals that staff observed the self- administration of this medication once in the morning and once in the evening for the entire month of May. Petitioner's failure to produce the bingo card instructions, in order to prove some conflict between them and the reprinted prescription shown for each drug on the MOR, precludes a finding of a conflict, or a finding that observing the self-administration of drugs in accordance with the reprinted prescriptions shown on the MOR was in any way incorrect. The allegations concerning Resident #3 for the initial survey are impossible to assess because Petitioner neglected to produce a copy of her MOR. On July 19, the initialed MOR for Resident #2 reveals that, by 11:35 a.m. on July 19, no staffperson had initialed the morning self-administration of Carvedilol; the morning self- administration, which was due at 8:00 a.m., should have been completed and initialed well before 11:35 a.m. As for Resident #3, Petitioner failed to prove that a staffperson initialed for observing the self-administration of Risperidone and Tramadol for noon on July 13; the indication on the MOR was that Resident #3 was not present at that time. Two staffpersons had different ways of indicating the absence of the resident, and the surveyor did not understand the manner by which one staffperson indicated absence--i.e., by initialing and then circling the initial. (Additionally, the surveyor's marks on the exhibit sometimes obscures the marking on the MOR placed by staffpersons.) However, Resident #3's MOR discloses no administrations of artificial tears in July, even though her medication was available at the ALF. These two findings are consistent with Count One of the Final Order. On May 26, Staff #3, Staff #4, and Staff #5 did not have the four hours of training required to qualify to observe the self-administration of medications. Petitioner proved that Staff #3 was hired on October 14, 2000, and Staff #4 was hired on August 10, 2009. Petitioner proved only that Staff #3 observed the self-administration of medication. The MORs for the initial survey cover nearly the entire month of May, and they bear only the initials "K" and "M"; "K" appears to be Staff #2, whose name is Kermite Jerome, and "M" appears to be Staff #3. On July 19, Staff #5 and Staff #7 did not have the four hours of training required to qualify to observe the self- administration of medications. Petitioner did not prove a hire date for Staff #7, who was newly hired. Petitioner did not prove that either Staff #5 or Staff #7 observed the self- administration of medication. The MOR's for the followup survey cover nearly three weeks of July, and they bear only the initials "K" and "L"; the "L" is Ms. Nelson. On May 26, Respondent did not have a dated and planned menu posted at least one week in advance. On July 19, Respondent did not have a dated and planned menu posted at least one week in advance. On May 26, Respondent did not maintain a dated, signed contract for Resident #1, nor a signed contract for Resident #3. On July 19, Respondent did not maintain a signed contract for Resident #3. On May 26, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. On July 19, Respondent had not submitted a written comprehensive management plan for review and approval by the county emergency management agency. This finding as to July 19 is consistent with Count 3 of the Final Order.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2013. COPIES FURNISHED: Leonie Nelson L and B Solutions Care, Inc. 567 Northeast 137th Street Miami, Florida 33161 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Julie Arrendell Qualified Representative 13899 Biscayne Boulevard, Suite 101 North Miami Beach, Florida 33181 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
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."
The Issue The issues for consideration are those allegations set forth in an Administrative Complaint brought by the State of Florida Department of Professional Regulation (Department), in which the Respondent, Scarlett Jones, R.N., is accused of various violations of Chapter 464, Florida Statutes. Through Count One it is said that the Respondent transcribed an order for Heparin to be administered to the patient K.W. as 15,000 units when the physician's order quoted the dosage as 5,000 units, and that the patient was given two dosages at 15,000 units as opposed to the required 5,000 units. In an additional accusation against the Respondent, related to patient care, Respondent is said to have failed to indicate in the patient K.W.'s nursing notes, on or about May 16, 1988, that an administration of Aminophylline was to be restarted during the 11:00 p.m. to 7:00 a.m. shift. Further, it is alleged that this substance was not restarted until 8:00 a.m. on the next day as discovered by a subsequent shift employee. As a consequence, Respondent is said to have violated Section 464.018(1) (f), Florida Statutes, related to alleged unprofessional conduct. Count Two to the Administrative Complaint alleges that on or about June 4, 1988, the Respondent who was assigned to care for the patient E.J., was told by a co-worker that the patient had fallen out of bed and soiled himself and that the Respondent failed to respond to the patient's needs after repeated requests. Eventually, it is alleged that the patient's wife assisted him back to bed and the co-worker took care of the patient's hygiene. As a consequence, Respondent is said to have violated Section 464.018(1)(f), Florida Statutes, related to unprofessional conduct and that she violated Section 464.018(1)(j), Florida Statutes, for knowingly violating a rule or order of the Board of Nursing. Finally, the third count of the Administrative Complaint alleges that the Respondent, on or about June 14, 1988, was found asleep while on duty in violation of Section 464.018(1)(f), Florida Statutes, an act of unprofessional conduct, including, but not limited to, the failure to conform to minimum standards of acceptable and prevailing nursing practice. For these alleged violations, the Department seeks to impose disciplinary action which could include revocation or suspension, the imposition of an administrative fine and/or other relief which the Board of Nursing might deem appropriate.
Findings Of Fact During the relevant periods under consideration in this Administrative Complaint the Respondent was licensed by the Department as a registered nurse and subject to the jurisdiction of the Board of Nursing in disciplinary matters. The license number was 1702172. On April 11, 1988, Respondent took employment with Gadsden Memorial Hospital in Gadsden County, Florida, in a position of charge nurse on the Medical-Surgical Pediatrics Unit, also known as "Med-Surg. Ped." That unit provides short term acute care for post-operative patients, acute medical patients, and acute pediatric patients, some of which require 24-hour observation. Response to the needs of the patients is given by three nursing shifts in each day which begins with shifts of 7:00 a.m. to 3:00 p.m., followed by the 3:00 p.m. to 11:00 p.m. and then 11:00 p.m. to 7:00 a.m. on the following morning. Upon hiring, Respondent was assigned to the work the 11:00 p.m. to 7:00 a.m. and was the only registered nurse on duty during that shift. Among the responsibilities of the charge nurse at the time under examination here, was the assessment of patients on the unit as well as an awareness of the abilities of those other employees who were working in this shift. This was in an effort to provide direct supervision of critical care patients and included supervision of activities performed by a Nurse Technician. Respondent was more directly responsible for critical patients. Other duties included making frequent rounds and checking vital signs in an attempt to insure that the patients were stable. Respondent as charge nurse on "Med-Surg. Ped." could not leave the floor without notification of the house supervisor, another registered nurse. This person would replace the Respondent on those occasions where the Respondent would need to vacate the floor. In addition it was expected that the Respondent would notify those personnel who were working with her on the unit, where she intended to go and how long she would be gone. Before departing it was expected that the Respondent would check the stability of patients. physician's Orders were written on March 2D, 1988, in anticipation of the admission of patient K.W. to Gadsden Memorial Hospital to "Med. Surg Ped." The admission was under orders by Dr. Halpren. Among those orders was the prescription of Heparin, 5,000 units, subcutaneously every 12 hours. The Physician's Orders in terms of legibility are not immediately discernible but can be read with a relatively careful observation of the physician's orders. A copy of those may be found at Petitioner's Exhibit No. 5 admitted into evidence. The problem that tends to arise is that on the line which immediately follows the orders related to Heparin 5,000 units, is found the word hysterectomy written in such a fashion that the initial portion of the letter "H" might be seen as being placed on the prior line giving the unit dosage of the Heparin the appearance of being 15,000 units as opposed to 5,000 units. On April 11, 1988, K.W. was admitted to Gadsden Memorial Hospital as anticipated. At the time of admission the Physician's Orders previously described were provided. Surgery was scheduled and the patient file was made on "Med-Surg. Ped." Under the practices within this hospital, the ward clerk was responsible for transcribing physician's orders onto the patient's Medication Administration Record. This was done here by the ward clerk, S. Diggs. This is to be checked for accuracy by the charge nurse, to include Respondent, with the fixing of the signature to this Medication Administration Record verifying the accuracy of the clerk's entries. Respondent initialed the Medication Administration Record for the patient designating that Heparin in the amount of 15,000 units Q-12, meaning to be given every 12 hours was the requirement, and had been administered in that dosage. This may be seen in a copy of the Medication Administration Record which is part of Petitioner's Exhibit No. The patient was to undergo extensive abdominal surgery, to include the possibility of a hysterectomy and the incorrect administration of Heparin might promote problems with bleeding. The incorrect amount of Heparin as a 15,000 unit dosage was given to K.W. on two occasions. Another patient who was admitted to the ward which Respondent was responsible for as charge nurse was the patient A.W. Physician's Orders were written for that patient by Dr. Woodward on May 16, 1988. A copy of the Physician's Orders may be found at Petitioner's Exhibit No. 6 admitted into evidence. Among the substances prescribed was Aminophylline drip 20 milligrams per hour I.V. This patient had been admitted to the pediatric unit with a diagnosis of asthma and prescribed the Aminophylline to aid the patient's breathing. It was expected that patient A.W. was to be administered two dosages of Aminophylline, an intermediate dosage to be given every few hours in a larger quantity, and a continuous drip to run at 20 milligrams per hour. Within Petitioner's Exhibit No. 6 are nursing notes made by Respondent concerning A.W. On May 17, 1988, between the hours of 12:00 a.m. and 2:00 a.m. it is noted that Respondent was having trouble with patient A.W.'s I.V. She states that the I.V. site was assessed and had to be pulled and that she was not able to reinsert due to the uncooperative nature of this child. The I.V. was restarted by the house supervisor nurse. An entry at 6:30 a.m. made by the Respondent describes the I.V. position as acceptable. When the shift changed at 7:00 a.m. the new charge nurse did not find the Aminophylline drip in progress, as called for, and this is noted in a 7:30 a.m. entry made by this registered nurse, Sherry Shiro. Petitioner's Exhibit No. 4 admitted into evidence is a Confidential Incident Report prepared by the Gadsden Memorial Hospital concerning allegations against the Respondent. They have to do with an alleged incident that occurred around 5:00 a.m. and contain the purported observations by Lucinda Mack, a licensed practical nurse on duty at that time, and they were received on June 15, 1988, by Carol Riddle, R.N., Director of Nursing at Gadsden Memorial Hospital, and the person responsible for investigating this matter. The copy of the Confidential Incident Report contained observations about the alleged failure of treatment by the Respondent directed in the matter of the patient E.J. These remarks are hearsay. They do not corroborate competent evidence at hearing concerning any oversight by the Respondent in the treatment of the patient E.J. On or about June 14, 1988, the Director of Nursing, Carol Riddle, called the night supervisor Michelle Warring at 2:00 a.m. to ascertain if the Respondent was on duty. Respondent was working on that date. At 2:15 a.m. Warring advised Riddle that the Respondent could not be found and Riddle went to the hospital at that time. When she arrived at the facility at 3:00 a.m. she went to "Med-Surg. Ped." where she was informed by the communications clerk that Lucinda Mack, LPN, was the only nurse on duty in that unit, and that the clerk did not know where Respondent could be found. Riddle and Warring then looked through the patient rooms in "Med-Surg. Ped." but could not find the Respondent. One and a half hours after commencing the search Riddle located the Respondent in a different wing of the hospital which contains a respiratory therapy manager's office. Respondent was there with her husband asleep, with the door locked and lights off. At that time she was the only registered nurse on duty in "Med-Surg. Ped." which had six patients receiving care on that evening. Respondent was not performing her duties or supervising those other persons who worked with her on the unit. Respondent had been observed asleep at her nurses' station desk on several other occasions by Dale Storey, a registered nurse working at the Gadsden Memorial Hospital. Linda Reed, a nurse technician at Gadsden Memorial Hospital had observed the Respondent asleep on duty. As commented on by nurse Riddle, who is qualified to give expert opinion testimony about the performance of the Respondent in her nursing practice, the conduct set out before in these findings of fact constitutes unprofessional conduct in the practice of nursing, in a situation which the Respondent knew what her duties were as charge nurse and failed to perform them at an adequate level.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered which fines the Respondent in the amount of $1,000 for the violation related to the care of patient K.W. as set out in Count One and for sleeping on duty as set out in Count Three. And, finds that the violation related to patient A.W. as set out in Count One and the violation alleged in Count Two related to the patient E.J. were not proven. DONE and ENTERED this 19 day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 19 day of April, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5719 Petitioner's fact finding is subordinate to the finding in the Recommended Order with exception of paragraph 16 which is not relevant and reference within paragraph 34 to the date June 24, 1988, which should have been June 14, 1988. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Scarlett Jones 2636 Mission Road, #138 Tallahassee, Florida 32302 Judy Ritter, Executive Director Florida Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
