The Issue This is a proceeding in which the Petitioner seeks to suspend the license of a medical doctor on the basis of allegations set forth in an Administrative Complaint. The Administrative Complaint charges that the medical doctor is in violation of Section 458.331(1)(s), Florida Statutes, "by being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition."
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME0077594. Cocaine is a Schedule II controlled substance with a high potential for abuse, whose use may lead to severe psychological or physical dependence. When a person ingests cocaine, the human body metabolizes some of the cocaine into a substance called benoylecgonine. Benoylecgonine is commonly referred to as cocaine metabolite or metabolite of cocaine. In the normal course of events, cocaine metabolite is found in the human body only following the ingestion of cocaine. On February 17, 1998, the Respondent submitted a urine sample for drug screening as part of the application process for employment at Jackson Memorial Hospital in Miami, Florida. The results of that test came back positive for metabolite of cocaine. While positive, the amount of cocaine metabolite recorded by the test equipment was very small, only 61 nanograms of metabolite of cocaine per milliliter. The Respondent was very surprised by the results of the urine drug screen test, and he questioned the accuracy of the test results. When he gave the urine sample on February 17, 1998, the sample was split into two separate samples. He eventually requested a test of the second sample. The second sample was tested on November 24, 1998. The second sample also tested positive, but again the measured amount of cocaine metabolite was very small, only 50.5 nanograms per milliliter. The Respondent is unable to explain why the urine specimen he gave on February 17, 1998 would test positive for metabolites of cocaine. The Respondent denies any voluntary or intentional ingestion of cocaine and is unaware of any manner in which he might have accidentally or unknowingly ingested cocaine. The Respondent believes that the test results of the urine sample he gave on February 17, 1998, are erroneous because there is no logical reason known to him for his urine to have tested positive for metabolites of cocaine, other than test error or sample contamination. Drug test results that indicate only very small amounts of cocaine metabolite in the test sample are regarded as insignificant and are treated essentially the same as negative results. For example, Jackson Memorial Hospital treats test results of less than 50 nanograms of cocaine metabolite per milliliter the same as a negative result. And the Department of Transportation treats test results of less than 150 nanograms of cocaine metabolite per milliliter the same as a negative result. When the Respondent's urine sample of February 17, 1998, was tested the first time, the materials being tested also included two control samples of known values. One of the control samples contained 150 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 163 nanograms per milliliter; 13 nanograms high. The other control sample contained 450 nanograms of cocaine metabolite per milliliter. The test equipment measured that sample as 482 nanograms per milliliter; 32 nanograms high. On the first test of the Respondent's February 17, 1998, urine sample, the test equipment recorded a measurement of 61 nanograms of cocaine metabolite per milliliter. That result was not adjusted to take into account the fact that the test equipment was producing high readings on the known samples. If the test results of the Respondent's urine sample were to be adjusted by the 13 nanogram error in the smallest of the control samples, the result would be 48 nanograms of cocaine metabolite in the Respondent's sample. The Respondent became licensed to practice medicine in Florida on or about March 4, 1999. Shortly thereafter, the Respondent obtained employment with an anesthesia group in Miami, Florida, known as Anesthesia Group of Miami, Inc. Anesthesia Group of Miami, Inc., had a contract to provide anesthesia services to patients at Coral Gables Hospital. In his capacity as an employee of Anesthesia Group of Miami, Inc., the Respondent was assigned to provide anesthesia services to patients at Coral Gables Hospital on a regular basis. Dr. Manuel Torres was the CEO and owner of the Anesthesia Group of Miami, Inc. Dr. Torres was the person who made the decision to offer the Respondent employment with the Anesthesia Group of Miami, Inc., and was also the person primarily responsible for supervising the Respondent's professional activities. Dr. Manuel Torres has been practicing anesthesiology for approximately 30 years. During that time he has served as Chief of Anesthesiology at several hospitals in the Miami area, including Hialeah Hospital, Golden Glades Hospital, and Coral Gables Hospital. Dr. Manual Torres has also been a professor of medicine at the University of Miami School of Medicine. While the Respondent worked at Coral Gables Hospital as a new anesthesiologist, he was closely supervised by Dr. Torres, both inside and outside of the operating room. During the course of his supervision of the Respondent, it never appeared to Dr. Torres that the Respondent was impaired in any way. On the evening of July 16, 1999, while some atypical events were taking place in the vicinity of the lobby of the Coral Gables Hospital, the Respondent was elsewhere in the hospital providing anesthesia services for two patients.3 Hospital records show that from 7:00 p.m. until about 9:20 p.m. on July 16, 1999, the Respondent was providing anesthesia services to two patients in one of the hospital operating rooms. These medical records include entries made by the Respondent as the anesthesia services were being provided to the patients in the operating room and in the recovery room, with the Respondent documenting the patient's pulse, blood pressure, respiration, and other information in the records every few minutes. Between about 9:20 p.m. and 11:07 p.m., one of the patients being attended to by the Respondent was in the recovery room. During this time, the Respondent remained in or near the recovery room to ensure that the patient fully recovered from the anesthesia before the Respondent left the hospital premises. At 11:07 p.m., the recovery room nurse went to the Respondent to ask him for orders to move the patient from the recovery room to a regular floor. The Respondent gave the requested orders. Very shortly thereafter, the Respondent left the recovery room and also left the hospital. The Respondent was picked up at the hospital by his roommate at approximately 11:30 p.m. On the evening of July 16, 1999, the Respondent was not the person in the men's restroom of the hospital lobby and was not the person who, upon leaving the men's restroom, asked that a taxi be called.4 As of the date of the final hearing in this case, the Respondent had shared a dwelling place with an adult roommate for approximately one and a half years. During that period of time, the Respondent's roommate has never seen the Respondent using drugs, nor has he ever seen the Respondent engage in any conduct that created any suspicion of drug use. After July 16, 1999, and until his license was suspended in December of 1999, the Respondent continued to work for the Anesthesia Group of Miami under the supervision of Dr. Manuel Torres at facilities other than Coral Gables Hospital. Dr. Torres was never notified by anyone at Coral Gables Hospital about the allegations made against the Respondent on July 16, 1999, even though the hospital knew that the Respondent continued to be employed by Dr. Torres and that the Respondent was continuing to provide anesthesiology services to patients at other facilities. Shortly before the Respondent was employed by Dr. Torres, Martha Garcia, the Chief Executive Officer, at Coral Gables Hospital, had notified Dr. Torres that the hospital had decided to terminate its contract with the Anesthesia Group of Miami, and that after midnight on July 16, 1999, another anesthesia group would be providing all anesthesia services at Coral Gables Hospital. The new anesthesia group took over responsibility for all anesthesia services at Coral Gables Hospital beginning at the stroke of midnight on July 16, 1999. The Respondent had wanted to continue to work at Coral Gables Hospital after July 16, 1999. Dr. Torres did not object to the Respondent continuing to work at Coral Gables Hospital after July 16, 1999. Accordingly, Dr. Torres advised the Respondent that the he would release the Respondent from the non-compete clause in the Respondent's employment contract. Dr. Torres also advised the hospital CEO that he was releasing the Respondent from the non-compete clause. The Respondent communicated with the new anesthesia group and made arrangements to work with that group when they began providing anesthesia services at Coral Gables Hospital on July 17, 1999. The Respondent also discussed the matter with Martha Garcia. She initially told the Respondent that she had no objection to him continuing to work at Coral Gables Hospital with the new anesthesia group after July 16, 1999. At some point in time prior to July 16, 1999, Martha Garcia changed her mind. She told the new anesthesia group that she would not allow the Respondent to work at Coral Gables Hospital after July 16, 1999. She also told the Respondent that she had changed her mind. Martha Garcia and the Respondent had at least one heated conversation about her change of mind. Martha Garcia became very angry with the Respondent about the way he spoke to her during their heated conversation. She was still angry with him on July 16, 1999. Martha Garcia's animosity towards the Respondent was still evident during her testimony at the final hearing. On August 3, 1999, about two and a half weeks after the alleged incident on the night of July 16, 1999, Martha Garcia, the Chief Executive Officer of Coral Gables Hospital, called the Physicians Recovery Network (PRN) and told them that a hospital security guard had discovered the Respondent "strapped off" and injecting a substance into himself.5 The PRN monitors health care practitioners who are impaired or potentially impaired by alcohol, drugs, or other mental conditions. Dr. Raymond Pomm, the Medical Director of the PRN, serves as the impaired practitioner's consultant to the Board of Medicine. In response to the information provided by Martha Garcia, the PRN contacted the Respondent on August 10, 1999. The PRN requested that the Respondent obtain an evaluation for possible impairment and provided the Respondent with several options for such an evaluation. The Respondent agreed to see Dr. Richard Seely for the evaluation. On August 20, 1999, the Respondent presented to Richard Seely, M.D., who is a board certified addiction psychiatrist, for evaluation. At that time, Dr. Seely observed Respondent to be anxious, tremulous, and in an agitated state. Additionally, Dr. Seely noticed that the Respondent's nose was running and that the Respondent frequently rubbed his nose. During Respondent's visit with Dr. Seely, Dr. Seely requested that the Respondent provide an immediate urine sample for a urine drug screen. Such a urine drug screen is a routine part of an evaluation of impairment or possible impairment. The Respondent refused to provide an immediate urine sample. The Respondent was presented with two options for submitting to an immediate urine drug screen. The Respondent could either call his attorney from Dr. Seely's office, or he could immediately provide the urine sample, which Dr. Seely agreed to hold until such time as the Respondent could speak with his attorney. The Respondent rejected these options, and he did not provide a urine sample on August 20, 1999. The Respondent also refused to sign the consent forms and refused to pay for the evaluation. The Respondent contacted his attorney to discuss whether he should sign the forms provided to him by Dr. Seely and whether he should provide the urine sample requested by Dr. Seely. Following review of the forms, the attorney advised the Respondent that he should sign the forms and that he should provide the requested urine sample. On August 24, 1999, the Respondent returned to Dr. Seely's office, signed the consent forms, and provided a urine sample. Testing of that urine sample was negative for any of the drugs tested for. However, because the Respondent had waited four days to provide the urine sample, on August 24, 2000, Dr. Seely also asked the Respondent to provide a hair sample. The Respondent contacted his attorney to ask whether he should comply with the request for a hair sample. The Respondent's attorney advised him not to provide a hair sample for testing. Consistent with that advice, the Respondent refused to provide a hair sample on August 24, 2000. Dr. Seely could not complete an evaluation of Respondent or make a recommendation to PRN without the Respondent's undergoing some form of reliable drug screening, either by immediate urine screening or by hair drug toxicology screening. Dr. Seely reported to the PRN that an evaluation of the Respondent could not be completed because the Respondent refused to cooperate with the evaluation. On October 4, 1999, Dr. Raymond Pomm, the Medical Director at PRN and a board certified addiction psychiatrist, wrote to the Respondent. Dr. Pomm's letter to the Respondent included the following: This correspondence serves as written documentation that your case is being referred to the Agency for Health Care Administration for appropriate action. This referral is the result of serious allegations brought forth and your unwillingness to fully cooperate with the evaluation process to resolve same. On October 4, 1999, Dr. Raymond Pomm also wrote to the Agency for Health Care Administration (AHCA). Dr. Pomm's letter to the AHCA summarized the information he had received regarding the allegations against the Respondent, summarized efforts to have the Respondent submit to an evaluation, summarized the Respondent's failures to cooperate, and concluded with the opinion that the Respondent was "unsafe to practice his profession with reasonable skill and safety." As of March 24, 2000 (the last day of the final hearing in this case), the Respondent had not completed a psychological evaluation or a chemical dependency evaluation. However, during March of 2000, the Respondent voluntarily submitted several urine samples for drug screen testing. These more recent urine samples were tested by the same lab that performed the drug screen test on February 17, 1998. The more recent samples were submitted on each of the following dates: March 7, 10, 13, 17, and 20, 2000. All five of the urine samples submitted by the Respondent during March of 2000 were negative for cocaine metabolite. They were also negative for all of the other drugs for which the tests screened. Under Section 458.331(1)(s), Florida Statutes, the Petitioner has "the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department." No such order was issued to compel the Respondent to submit to such a examination.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case concluding that the evidence is insufficient to establish that the Respondent is unable to practice with skill and safety, dismissing the Administrative Complaint in its entirety, and vacating the previously issued Emergency Suspension Order. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 6th day of July, 2000.
Findings Of Fact The Petitioner is a utility regulated by the Commission that is in the business of acquiring and operating water and sewer systems in Florida, principally in Central Florida. It now operates 39 systems, of which at least 30 water systems and 5 sewer systems are located in Orange, Lake and Seminole counties. In this case, the Central Florida Division has one water system in Lake County (Picciola Island) , two water systems in Orange County (Daetwyler Shores and Lake Conway), three water systems and one sewer system in Seminole County (Bretton Woods/Druid Hills, Dol Ray Manor, and both water and sewer in Chuluota; these systems serve 949 water customers and 98 sewer customers. Southern commenced operating these systems in the spring of 1978, purchased them from Central Florida Utilities, Inc. in October, 1978 and applied to the Commission for a transfer, which application is still pending. (Docket 780278- WS; Hearing Examiner's Recommended Order approving the transfer was filed January 29, 1979) Notwithstanding customer complaints of the quality of the water service (low or fluctuating pressure, excess chlorine, sediment, no noticed interruptions and lack of fire protection capabilities) and Southern's admission of the general disrepair of the systems at the time of the purchase, the systems are in compliance with governmental standards. The utility has spent $52,000 since the test year on repair and upgrading with another $87,000 necessary to complete the required projects, of which $25,000 is for governmentally mandated improvements to the Chuluota wastewater system. The Petitioner's use of the purchase price of $215,800 for the facilities involved in the seven systems as the amount of plant in service as of June 30, 1978, rather than Respondent's use of the 1977 annual reports of the prior owner, is appropriate because: it follows past FPSC decisions on this subject with respect to this utility; the purchase price was considerably less than FPSC's estimated replacement cost of over $800,000; the purchase was an arms-length transaction; the books of the prior owner were considered unreliable; and, following complete integration of operations with Petitioner's other systems in Lake, Orange and Seminole counties, the customers should obtain the best possible service at the lowest rates obtainable. Alternatively, the Utility is entitled to an acquisition adjustment that achieves the same rate base as using the purchase price. Petitioner's rate bases using a 12-month average, rather than the preferred 13-month average, are as follows: Water Sewer Average test year plant $178,305 $ 62,242 Mandated additions 25,000 Accumulated depreciation (1,833) (623) CIAC (net of amortization) (6,703) Working Capital 11,241 1,801 Income tax lag (776) (370) $180,234 $ 89,050 The capital structure and rate of return is as stipulated by the parties as follows: WEIGHTED TYPE AMOUNT RATIO COST COST Common Stock $1,882,055 60.44 14.0 percent 8.46 Long Term Debt 1,037,372 33.31 8.89 2.96 Cost Free 194,768 6.25 0 0 TOTAL $3,114,195 100.00 11.42 perc. Rate of Return The above rate bases and rate of return provide an authorized constructed net operating income from water service of $20,583 and from sewer service of $10,170. This results in the following constructed statement of operations for year ended June 30, 1979: Water Sewer Operating Revenue $122,993 $29,085 Operating Expense Operation 84,760 12,346 Maintenance 4,103 2,065 Depreciation 3,531 1,245 Taxes, other than income 6,138 1,409 Income taxes 3,878 1,850 Total $102,410 $18,915 Net Operating Income $ 20,583 $10,170 It is noted that the above revenue requirement is more than the interim authorized revenue of $97,184 for water and $17,640 for sewer. The staff proposed that the rate structure should be changed from the present block structure far water and flat rate for sewer to a base facility charge for both water and sewer. This concept is appropriate since it serves to conserve water and insures that each customer pays his fair share of the costs of providing service. No evidence opposing this type rate structure was presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Southern States Utilities, Inc., Central Florida Division, be granted and that the utility be authorized to file new tariffs to be approved by the Florida Public Service Commission that would have provided for the test year ending June 30, 1979 annual gross revenues of $122,993 for water service and $29,085 far sewer service. It is further RECOMMENDED that the utility be required to implement rates for fire protection service in Belle Isle and a base facility charge in structuring water and sewer rates. It is further RECOMMENDED that the refund bond be returned to utility. DONE and ORDERED this 24th day of October, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1980. COPIES FURNISHED: Kenneth H. Myers, Esquire 1428 Brickell Avenue Miami, Florida 33131 William H. Harrold, Esquire 101 E. Gaines Street Tallahassee, Florida 32301 Sam Owens, Esquire 101 E. Washington Street Orlando, Florida 32801 Steve Tribble, Clerk Florida Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Robert T. Mann, Chairman Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
Findings Of Fact 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
The Issue The issues in this case are whether Respondent violated certain rules of the Department of Environmental Protection (Department) related to petroleum contamination site cleanup criteria as alleged in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fine is appropriate; and whether Respondent should be required to take the corrective action described in the NOV.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes (2008),1 and the rules promulgated in Florida Administrative Code Title 62, pertaining to petroleum contamination. Respondent Z.K. Mart, Inc., is a Florida corporation, and owns and operates a retail fueling facility (DEP Facility No. 8507091) located at 5077 Normand Boulevard, Jacksonville, Florida (“the facility”). In January 2004, soil sampling in conjunction with the removal of an underground petroleum storage tank at the facility showed petroleum contamination. Respondent reported the contamination to the Department in a Discharge Report Form on January 29, 2004. Respondent removed the tank that was the source of the contamination, conducted source removal activities, and submitted various reports to the Department, including a Site Assessment Report (SAR), submitted in February 2006. In March 2006, the Department determined the SAR was incomplete and requested that Respondent submit a SAR addendum. To date, Respondent has not submitted the SAR addendum. Respondent’s insurer, Mid-Continent Casualty Company, refused coverage for the assessment and cleanup costs associated with the reported discharge, asserting that the contamination “arose out of” the tank removal. Respondent contends that the contamination occurred before the tank removal. In October 2004, Respondent sued Mid-Continent in the circuit court for Duval County for wrongful denial of coverage. Respondent requested that the Department also file suit against Mid-Continent, pursuant to Section 376.309(2), Florida Statutes, for violating financial responsibility requirements. In December 2008, the Department sued Mid-Continent. The litigation is ongoing. Respondent spent over $300,000 to remove 2,503 tons of contaminated soil and to conduct site assessment activities associated with the reported contamination. In August, September, and October 2006, Respondent filed financial affidavits and additional materials with the Department in support of Respondent’s claim that it was unable to pay for additional assessment work. By letter dated November 3, 2008, the Department rejected Respondent’s claim that it was financially unable to undertake the requested site assessment. Respondent submitted a financial affidavit prepared by Abdul Khan, the vice president and secretary of Z.K. Mart, Inc., which states that the net income of Respondent was $36,479 at the end of 2005. Financial information for later years, including 2008, was also submitted by Respondent. However, no financial analysis was included. No evidence was submitted to establish the estimated costs of future site assessment activities. It cannot be determined from the financial information in the record whether Respondent is currently financially able to conduct additional site assessment activities. The Department states in the NOV that Count I constitutes a violation of Florida Administrative Code Rule 62- 770.800(5). That rule provides that it is a violation of Chapters 376 and 403, Florida Statutes, for a responsible party to fail to submit additional information or meet any time frame “herein.” The Department explained that Count I was intended to charge Respondent with failing to complete site assessment. The only applicable time frame in Florida Administrative Code Rule 62-770.800, entitled “Time Schedules,” is in subsection (3), which requires a responsible party to submit additional information within 60 days of the Department’s request for the information. That violation, however, is more specifically charged in Count II. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-770.600(11), which states that, if a SAR is incomplete, the Department shall inform the responsible party and the responsible party shall submit a SAR addendum within 60 days. Counts I and II charge Respondent with the same offense, failing to submit requested information within 60 days of the request. As stated in the Conclusions of Law, Respondent cannot be made to pay administrative fines under a duplicate charge. Count III of the NOV charges Respondent with liability for the Department’s investigative costs of $500 incurred in conjunction with this enforcement matter. These are nominal costs and were never disputed by Respondent.
The Issue Should the Petitioner be certified in Florida as a Radon Mitigation Specialist based upon his performance on the examination for certification given in April 1990? Were any of the seven items on the examination challenged by Petitioner marked incorrect when they were in fact correct answers to the questions asked?
Findings Of Fact The Office of Radiation Control within the Department of Health and Rehabilitative Services is the agency authorized to certify an individual as a radon mitigation specialist in Florida. One of the required qualifications required for certification is that the individual pass the training examination. The Petitioner, Alexander Z. Kobryn, sat for the training examination in April 1990. A comparison of Petitioner's answer sheet with the answer key used to grade the examination reveals that he marked the incorrect response on twenty-six of the examination questions. As the examination consisted of only seventy-five multiple choice questions, Petitioner's overall score was below the designated passing score of seventy percent. After Petitioner's review of the examination, his answer sheet, the Environmental Protection Agency Training Manual, and the answer key, seven examination answers designated as the only correct answers were challenged by Petitioner. These items were questions numbered 11, 34, 54, 57, 58, 60 and 64. The specific challenges were not isolated until the hearing date because Petitioner had not been granted the opportunity to review his incorrect until final hearing. At hearing, the parties agreed that if any four of the challenged items were in fact correct answers, the Petitioner's examination would be rescored to reflect he had received a passing score of seventy percent. As part of the test design, the correct answer for each question was supposed to reflect that certain training objectives were being met by the course materials for the Radon Mitigation Specialist Examination. A correct answer was supposed to reflect that the training materials had covered certain information deemed as necessary knowledge for individuals in the radon mitigation business. Individuals taking the examination were not made aware of which training objectives they were meeting when they answered individual questions. This information was reserved for the designers of the test and the Department. The test takers answered the questions based on content alone. On question 11 of the examination, applicants were asked to select the category which has the greatest influence on indoor radon and radon decay products. Four multiple choice answers were provided. Of these choices, two were eliminated by Petitioner and all other applicants. According to the information in Unit Two of the EPA Reducing Radon in Structures Manual, the keyed answer "A" was the best response. During the hearing, the Petitioner provided an article written by Dr. Ed Vitz, a recognized expert and acknowledged author of the EPA manual. This article gives greater emphasis to the radon in the water supply than the training text on which the examination was based. The Petitioner relied on the expert opinion of Dr. Ed Vitz when he exercised the judgment he was asked to use in his selection of the category with the greatest influence on indoor radon and radon decay products. The Petitioner was able to justify his judgment selection of answer "B" on question 11 and should be given full credit for his response as a correct answer. Question 34 of the examination asked applicants which remediation technique they (the individual) would consider first if the sub-slab vacuum test alters the direction of smoke at a block wall opening. The Petitioner chose sub-slab and baseboard suction (answer "C") over the keyed answer of sub-slab suction (answer "D"). The Petitioner argued that his answer to question 34 was equally as correct as the keyed answer. While he agrees that sub-slab suction should be considered, he also chose baseboard suction. This is a conservative selection that includes a more thorough attempt at remediation on the first try than the keyed answer. There was no redundancy. As the test asked for a preliminary evaluation from the applicant of the techniques to be used, the Petitioner's answer was not incorrect. Without more information, he chose a more conservative approach than the answer ultimately sought by the examination. Because the Petitioner was able to justify his answer choice, he should be given full credit for his response of "C" as a correct answer. Question 54 asks for the factor that does not directly influence the depressurization of a block stem wall. When answering the question, the Petitioner did not contemplate that more suction points would be needed in the trench if more corners existed in the wall. (See Section 5.55 of the EPA Manual.) The answer keyed by the Department is the only correct answer to the question. The Petitioner should not be given credit for a correct response of question 54. Question 57 asks for the mitigation method an applicant should use to increase the ventilation in a tightly constructed home with a 6-8 pCi/1 radon concentration. In his answer, the Petitioner chose to keep the windows open during the day (answer "D"). The keyed answer was to install a constant fresh air supply (answer "B"). The Petitioner testified that the given level of radon concentration could be mitigated by either answer. The mitigation would be caused by the intrusion of fresh air from an external source. He chose answer "D" over answer "B" as his first mitigation method because it was the most cost-effective for the client. If the question had asked for which mechanical devices should be used, answer "B" would clearly be the correct one. However, Petitioner established that his answer was not incorrect. The authority chosen by the Department to justify the keyed answer discusses ventilation caused by mechanical devices. However, the same text validates the method chosen by Petitioner. The Petitioner should be given credit for a correct answer on question 57. The next question challenged was question 58. No one taking the examination chose the keyed answer "A". Instead, an overwhelming majority of applicants chose the same answer as selected by the Petitioner, answer "B". The Petitioner explained that answer "B'1 was interpreted by him to include the duct work in the crawlspace. This is a reasonable interpretation of the selection ~~B~?. Under that interpretation, it is clearly the best answer to the question posed by the examination. The Petitioner should be given credit for a correct answer on question 58. The Petitioner's selected answer to question 60 is incorrect, even under the authority he referenced in Section 5-90 of the EPA Manual. The answer keyed by the Department is correct, as established in Section 5-89 of the manual. The Petitioner should not receive credit for a correct answer for his response to this question. Question 64 asked what course of action should be taken if post- mitigation measurements provided certain information. The keyed answer was "B", but the Petitioner gave the answer "C" as the proposed course of action. The first measurement given in the question was a long-term measurement. It is the best means for judging results. The answer selected by Petitioner was redundant as opposed to conservative. Credit for a correct answer should not be given for his response to question 64.
Recommendation Accordingly, it is RECOMMENDED: 1 . That a Final Order be entered finding that the Petitioner achieved a passing score on the Radon Mitigation Specialist Examination taken on April 19, 1990. 2. As a result of the passing score, tie Petitioner's exam status should be changed from "fail" to "pass". DONE and ENTERED this 2nd day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 o Administrative Hearings this 2nd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4423 The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #4. Rejected. See HO #12, #15, #22 and #25. Rejected. See HO #12, #15, #22 and #25. COPIES FURNISHED: Alexander Z. Kobryn 163 Padgett Drive Lakeland, Florida 33805 John Rodriguez, Esquire HRS-Interprogram & Development Technical Assistance Office 1317 Winewood Boulevard Building One, Room 100 Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Respondent's license as a medical technologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Clinical Laboratory Personnel was the state agency in Florida responsible for the regulation of the medical technology profession in this state, and for the licensing of medical technologists in Florida. Respondent, James A. Beyer, was licensed as a medical technologist under license number JC0033961, originally issued on November 27, 1995, and current until June 30, 2000. On February 23, 1996, B.A., a 21-year-old female, was admitted to Naples Community Hospital complaining of increasing abdominal pain. Laboratory tests run on the patient indicated she was undergoing an ectopic pregnancy. A diagnostic laporoscopy was performed, as were subsequent laporotomy and left salpingectomy with lysis of adhesions. It was also determined she had severe pelvic inflammatory disease with bilateral tubo-ovarian complexes. As a result, she was placed on drug and antibiotic therapy which improved her condition. The pathology report based on the surgery performed on the patient revealed no evidence of intrauterine pregnancy in the fallopian tube specimen. She was discharged from the hospital on February 29, 1996. Final diagnosis, as indicated on the discharge summary, was "left ectopic pregnancy" with secondary diagnoses of chronic pelvic inflammatory disease and extensive pelvic adhesions. Notwithstanding the final diagnosis, as noted on the discharge summary, the Agency contends a second pregnancy test done on the patient revealed she was not pregnant. The laboratory tests giving rise to the allegedly erroneous initial diagnosis were processed in the hospital's lab by one of two technologists. Respondent was one of the two. It appears the test results for patient B.A. were confused in the lab with those of another patient. No evidence was presented to show who actually handled and processed B.A.'s specimen, nor was any evidence introduced by Petitioner to show what the laboratory's appropriate procedures were. However, Respondent's initials were entered into the computer as having done the allegedly erroneous test. Respondent labeled the incident regrettable, as indeed it was. He admits that human error caused the mix-up in specimens, but notes that the incident took place in the primary care chemistry section of the laboratory which was staffed by several different individuals. He claims it is impossible to determine who was responsible for the error. Respondent has no memory of doing the procedure and does not believe he did it. His belief is based on several factors. The first of these is that for the error to have occurred, there would have to have been at least two specimens present: that of B.A. and that of another patient. The demographic information relating to B.A. would have to have been placed on the analyzer with the specimen from the other patient. When Respondent does this test, it is his procedure to hold the specimen in his hand while he reads the label and enters the patient identification information into the analyzer computer. Then he labels the serum cup to be used with the same patient identification information as is on the specimen container he is holding. Before running the test, he verifies the identification number on the test sample cup against the identification number in the computer, and it is inconceivable to him that he would have picked up another patient's sample and placed a portion of it on the instrument instead of the sample on which he was working. Another reason he believes he did not commit the error is that the incident was thoroughly and promptly investigated by laboratory and hospital personnel, and the human error cause was treated without placing blame on anyone. No disciplinary action was taken against him by the hospital, and he is still employed by Naples Community Hospital in the laboratory in the same position as before the incident occurred. His annual ratings before and after the incident have been "meets" or "exceeds" standards. Respondent is of the opinion that the Department of Health's investigation into the incident was superficial at best and lacks concrete evidence to support the claims of misconduct made. Petitioner presented no information to indicate what are the appropriate procedures to be followed in the laboratory for the procedure in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Laboratory Personnel enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of September, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1999. COPIES FURNISHED: Howard M. Bernstein, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James A. Beyer 2501 8th Street West Lehigh Acres, Florida 33971 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether proposed rules 590-2.002, 590-3.003, 590-5.001, 590- 5.002, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are an invalid exercise of delegated legislative authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background These cases arose after respondent, Board of Clinical Laboratory Personnel (Board), published in the Florida Administrative Weekly its notice of intent to adopt certain revisions in Chapters 59O-2, 59O-3, 59O-5, 59O-6, 59O-9, 59O-10 and 59O-13, Florida Administrative Code. The proposed rules deal with the subject of alternate site testing within the state. The Board was created by the legislature in 1992 to regulate clinical laboratory personnel. Its authority and duties are set forth in Part IV of Chapter 483, Florida Statutes. The Board's purpose is to ensure the protection of public health, safety, and welfare through the regulation of clinical laboratory personnel. To this end, the Board is required by law to prescribe minimal qualifications for clinical laboratory personnel. Alternate site testing is any "laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory." It can only exist in a hospital under the direct supervision of the central clinical laboratory and its clinical laboratory director. The alternate site laboratory does the same type of testing as does the central laboratory but it uses different equipment. Alternate site testing is performed using ten to twelve instruments specifically designed for that purpose, and which specifically incorporate safeguards to prevent misuse or misinterpretation. Clinical laboratory personnel are persons who perform clinical laboratory examinations on specimans derived from the human body for the purpose of delineating information for the diagnosis, management and treatment of patients. There are four classes of clinical laboratory personnel, namely, technician, technologist, supervisor and director. Within the category of technician are various specialty categories including clinical chemistry, hematology, immunohematology, histology, radioassay, serology, microbiology, exclusive use and alternate site. In general terms, the proposed rules define an alternate site technician, set forth the curriculum requirements for training programs for alternate site technicians, state the minimum standards for licensure as an alternate site technician, prescribe the initial licensure and renewal fees for alternate site technicians, set forth the scope of practice for all clinical laboratory personnel, and enumerate the responsibilities of alternate site technicians including limits on tests that can be performed with this type of licensure. These rules were adopted after various workshops, public meetings and member conference calls were conducted by the Board in 1993 and 1994. As clarified by a more definite statement, petitioners in Case No. 94- 5968RP, Florida Perfusion Society (FPS) and Florida Hospital Association (FHA), contend that all or parts of proposed rules 590-2.002, 590-3.003, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are invalid on the grounds (a) the Board exceeded its rulemaking authority, (b) the rules are arbitrary and capricious, and (c) the rules contravene the law being implemented. Petitioners in Case No. 94-5969RP, Florida Society of Pathologists (FSP) and Dr. Louis S. McCann, Jr., have challenged proposed rules 590-5.001 and 590-5.002 on the grounds the two rules contravene the statutes being implemented and are arbitrary and capricious. Petitioner in Case No. 94-5970RP, Florida League of Hospitals (FLH), has challenged the validity of all the proposed rules on the ground the Board has exceeded its rulemaking authority. In addition, it has challenged Rules 590-2.002(7), 590-5.006(2), 590-9.002(4), 590-9.004(7) and 590-13.006 on the ground they contravene the statutes being implemented. Intervenor, Florida Coalition of Professional Laboratory Organizations, Inc., is a nonprofit corporation representing twelve organizations who represent the interests of laboratory professionals licensed under Part IV of Chapter 483, Florida Statutes. It supports the challenged rules and is aligned with the Board in these proceedings. Standing Respondent has stipulated to the standing of the FSP, a professional association of pathologists, and Dr. McCann, its president-elect, and thus there is no dispute that those petitioners are substantially affected by the proposed rules. FPS is a statewide professional medical society representing professional cardiovascular perfusionists in Florida. Perfusionists are principally known for the safe operation and maintenance of the heart-lung machine in open heart surgery. The FPS currently has more than one hundred members, most of whom are actively engaged in the practice of perfusion. The purpose of the FPS is to promote perfusion education and clinical expertise and to address the professional interests of perfusionists on issues affecting the profession, including representation before governmental bodies. Perfusionists are regularly required to perform the type of tests that are performed at alternate sites as part of their profession. The proposed rules would directly regulate their practice. In addition, a substantial number of FPS members would be affected by the proposed rules because they would be required to obtain a license as a laboratory professional in order to continue practicing using alternate test sites, or to use alternate test sites in the future. As such, they are substantially affected by the proposed rules. The FHA is a statewide, nonprofit trade association representing all types of hospitals in the state. As of August 1994, or three months before the hearing, it had 233 institutional members (licensed hospitals), plus various organizational and individual members. Its purpose is to serve its members by developing and promoting programs and services that will enhance their ability to provide comprehensive, efficient, high quality health care to the people of Florida. The association also represents its members at the state and national levels in providing an effective health care system. Only hospitals with clinical laboratories can have alternate site laboratories where alternate site technicians would be employed. The number of institutional members having clinical laboratories is not of record nor is the number of hospitals who plan to operate alternate site laboratories. Even so, it may be reasonably inferred that at least some of the hospitals provide clinical laboratory services in their facilities and, in the future, they intend to provide alternate site testing. Because the proposed rules require medical professionals already licensed or certified to obtain an additional license, limit the professionals who can provide these services, and impose regulatory and financial requirements on the provision of those services, the institutional members of the FHA are substantially affected by these proceedings. Moreover, because the proposed rules impose new training requirements on medical personnel, the hospitals who employ such individuals would be required to absorb the cost of training these employees and providing coverage for their duties while they are being trained. In these respects, they are further impacted by the rules. The FLH is a trade association comprised of seventy-six for-profit hospitals. Of its seventy-six members, seventy-three have clinical laboratories. Because the proposed rules limit the categories of hospital personnel who could be licensed as alternate site testing technicians and restrict the tests that these licensees can perform, the FLH is substantially affected by the proposed rules. Legislative History of Alternate Site Testing In 1993, the Florida Legislature adopted Chapter 93-178, Laws of Florida. That act specifically provided for the implementation of alternate site testing in Florida. The section relating to alternate site testing, which has been codified as Subsection 483.051(9), Florida Statutes, provides as follows: (9) Alternate Site Testing.- The agency, in consultation with the Board of Clinical Laboratory Personnel, shall adopt, by rule, the criteria for alternate-site testing to be performed under the supervision of a clinical laboratory director. The elements to be addressed in the rule include, but are not limited to: a hospital internal needs assessment; a protocol of implementation including tests to be performed and who will perform the tests; criteria to be used in selecting the method of testing to be used for alternate-site testing; minimum training and education requirements for those who will perform alternate-site testing, such as documented training, licensure, certification, or other medical professional background not limited to laboratory professionals; documented inservice training as well as initial and ongoing competency validation; an appropriate internal and external quality control protocol; an internal mechanism for identifying and tracking alternate-site testing by the central laboratory; and recordkeeping requirements. Alternate-site testing locations must register when the clinical laboratory applies to renew its license. For purposes of this subsection, the term "alternate-site testing" means any laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory. (emphasis added) The bill which became Chapter 93-178, Laws of Florida, originated as PCB 93-01 of the House Committee on Health Care. It was later filed as House Bill 2071 (HB 2071), Medical Tests and Procedures/Sunset. The overall purpose of the bill was to review provisions of Part I of Chapter 483 related to clinical laboratories, which was scheduled for sunset review under Section 11.61, Florida Statutes. The original version of PCB 93-01, dated January 28, 1993, had no provisions relating to alternate site testing. During consideration of the bill on February 3, 1993, the House Committee on Health Care amended PCB 93-01 to provide for rulemaking by the Board. Specifically, the amendment stated that "(t)he board shall adopt rules for alternate site testing to be performed under the supervision of clinical laboratory director." However, the authority for the Board to adopt rules was subsequently removed from the bill by amendment on the House floor on March 23, 1993. The House bill was then considered by the Senate, which amended the House bill on March 31, 1993. The amendment was a "strike everything after the enacting clause" amendment. In effect, the amendment substituted all new bill language in place of the House bill, while retaining the bill number of HB 2071. The alternate site testing language substituted was identical to the bill that had been considered in the Senate as SB 156, which, among other things, added subsection 483.051(9), relating to alternate site testing. This provision gave rulemaking authority to the Agency for Health Care Administration (ACHA) "in consultation with the Board of Clinical Laboratory Personnel." The Senate passed the amended bill and this version was returned to the House. The House then passed HB 2071 as it had been amended and passed in the Senate (with two amendments not related to alternate site testing). The Senate then concurred in the final House version. The amendment relating to subsection 483.051(9) (on alternate site testing) remained intact and eventually became the current Subsection 483.051(9), Florida Statutes. Subsection 483.051(9), as adopted, specifically delegates the rulemaking authority for alternate site testing to AHCA. That provision calls for "consultation" with the Board, but does not give the Board any rulemaking authority. The Board had a designated member, George Mavros, who represented the Board during the legislative session. Initially, the Board recognized ACHA's exclusive rulemaking authority in a report from its legislative liason and in discussions with affected public at its regularly scheduled meetings. That position was reiterated in an official letter to a representative of an affected organization from the Board's chairman. The chairman was specifically authorized to speak for the Board, and the letter reflected the official position of the Board at that time. In its discussions and letters, the Board specifically stated that the newly adopted statute did not give the Board rulemaking authority. Such public statements and letters are evidence of the Board's contemporaneous construction of the statute that it had no authority to adopt rules governing alternate site testing. Since that time, however, the Board has taken an opposing position, that is, that it has authority to adopt rules pertaining to alternate site testing requirements, and the rules under challenge are the end product of this changed position. The statute authorizing AHCA to adopt rules is clear on its face and unambiguous. Moreover, the legislative history reveals that during the 1993 session the legislature specifically considered the delegation of rulemaking authority to the Board in an early version of the bill. The provision giving specific rulemaking authority to the Board was deleted by later action of the same legislature. The final version of the bill contains a delegation of rulemaking authority to AHCA and omits any delegation to the Board. This is clear evidence that the legislature considered giving rulemaking authority to the Board, and instead evinced a clear intent to give exclusive rulemaking authority to AHCA. The legislature cannot be said to have simply forgotton the authority of the Board. Subsection 483.051(9) specifically sets forth the Board's role as a consultant. If the legislature had intended to "split" the rulemaking authority for alternate site testing between the Board and AHCA, it would not have specifically set out a different role in the statute. The legislative staff analyses of the bill support these findings. The staff analyses of subsection 483.051(9) refer solely to AHCA when referencing rulemaking authority for alternate site testing. Therefore, the Board did not have statutory authority to adopt the rules. For the reasons given in the conclusions of law portion of this order, the statutes which the Board relies upon for its rulemaking authority are not deemed to be controlling or relevant. Are the Challenged Rules Invalid for Other Reasons? Nothwithstanding the above findings, and solely for the sake of judicial economy in the event an appeal is taken by any party, additional findings are made relative to each of the challenged rules. In making these findings, it is noted that where new grounds for invalidating a rule have been raised for the first time in a party's proposed order, they have been disregarded as being untimely. Further, where a party has not addressed a previously raised ground in its proposed order, the undersigned has assumed that ground has been abandoned. Where a party speaks to a rule in general terms, and not a specific part thereof, and the undersigned is unable to discern which part of the rule is being attacked, that contention has been disregarded. a. Rule 59O-2.002(7) The first challenged rule is 59O-2.002(7), which defines the term "technician in the specialty of Alternate Site Testing" as follows: (7) Technician in the specialty of Alternate Site Testing means a person qualified to be a technician in the specialty of alternate site testing pursuant to the rules of the Board who under the general supervision of a laboratory director, supervisor or technologist may perform specific testing authorized by the Agency pursuant to rule chapter 59A-7 and the Board pursuant to rule chapter 59O-13 in a hospital based alternate site testing environ- ment approved by the Agency pursuant to section 483.051(9), F. S. and whose practice is limited to an alternate site testing environment. The Board had cited Subsections 483.805(4) and 483.811(3) and (4), Florida Statutes, as the specific authority for adopting the rule while Subsections 483.803 and 483.811(3) and (4), Florida Statutes, are cited as the laws being implemented. Besides leveling the broad charge that the Board lacks statutory authority to adopt the rule, a contention already decided in their favor, petitioners FPS and FHA contend that the rule is arbitrary and capricious because it sets up an impossible condition for qualifying as an alternate site technician since necessary related rules in Chapter 59A-7 have never been adopted by AHCA. In order for the proposed rule to become operable, AHCA must first adopt amendments to its Chapter 59A-7, which pertain to alternate site testing laboratories. Also, AHCA must approve a "hospital based alternative site testing environment" in which such tests can take place. At the time of hearing, a draft of new proposed rules 59A-7.034 and 59A-7.035 was being circulated by AHCA, but had not yet been adopted. Even so, the fact that the Board's rule is contingent on further rules being adopted by another agency does not render the rule arbitrary or capricious. The contention is accordingly rejected. (b) Rule 59O-3.003(3)(e) This rule sets out the proposed requirements for training for individuals performing specific alternate site tests. As modified by the notice of change published in the Florida Administrative Weekly on November 10, 1994, the challenged portion of the rule now provides the following training requirements: (e) Notwithstanding all other provisions of rule chapter 59O-3.003, the only require- ments for training in the specialty of Alternate Site Testing shall be 4 contact hours of instruction per test system with an additional 0.5 contact hour of instruction for each analyte above 8 analytes performed on the same test system. The contact hours of instruction shall be by a Board approved continuing education provider approved pursuant to rule chapter 59O-11 which shall include as a minimum instruction in the tasks defined as follows: * * * The terms "analyte" and "test system," which are the guages on which training is measured, are not defined anywhere in the Board's rules. Besides the argument that the Board lacks statutory authority to adopt the rule, petitioners FPS and FHA contend the proposed rule is arbitrary and capricious in that the requirements are excessive and inflexible. They also contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which prohibits a regulatory board from adopting "unreasonably restrictive and extraordinary standards" for a given profession. In proposing the number of hours of training for alternate site testing, the Board relied mainly upon its own members' expertise and judgment. It also relied on public comment given at a Board meeting on August 7, 1993, including testimony from a manufacturer's representative. Finally, it relied upon a training and certification program manual by i-Stat Corporation, a manufacturer of equipment used in clinical laboratories, and on other unspecified "documents and manuals." It did not conduct any surveys of professional literature or other outside services, nor did its staff conduct any research on the subject. Initially, it is noted that the proposed rule gives no consideration to the relative levels of medical training and education in the various professions regulated by the rules, even though that can affect how much training time is needed. For some professionals, such as an ICU nurse or emergency physician nurse, four hours of training is excessive, based on approved manufacturer's training protocol. By providing uniform instruction for all professionals, regardless of their prior training, and without any factual basis for doing so, the Board acted in an arbitrary manner. In arriving at the number of hours of instruction required for each test system, the Board relied in part on the testimony of a manufacturer's representative (Mallinckrodt) given at the August 7, 1993 meeting. A review of his comments, however, reveals that the representative recommended far fewer hours of instruction than is provided for in the rule. Moreover, in prescribing four hours training per test system, the Board relied primarily on its own judgment rather than on technical material submitted by other affected persons. Likewise, the basis for the additional 0.5 hours per analyte over eight analytes was not grounded on empirical data. Indeed, analytes and test systems are not even defined in the rule. Given these shortcomings, it cannot be said that the requirements of the rule are based on facts or logic. The rule is accordingly deemed to be arbitrary and capricious. Given this finding, it is unnecessary to reach the issue of whether the rule contravenes Subsection 455.201(4), Florida Statutes, by providing unreasonable and restrictive standards. (c) Rule 59O-5.001(1)(b), (2)(a), and (2)(b) This rule prescribes the educational requirements for the director of a clinical laboratory. Under current standards (rule 10D-41.067), a director must be a physician or a doctoral scientist. By its rule, the Board proposes to allow a person with a master's degree to become licensed as a clinical laboratory director. The challenged portions of the rule read as follows: Education. An applicant shall meet one of the following education requirements: * * * (b) Have a master's degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Experience. An applicant who qualifies pursuant to rule 59O-5.001(1) shall meet one of the following requirements: (a) Have full time pertinent clinical laboratory experience in an approved laboratory subsequent to receipt of the relevant degree as follows: * * * If qualifying under rule 59O-5.001(b), 8 years of experience. * * * Petitioners FSP and Dr. McCann generally contend the foregoing rule contravenes Section 483.800, Florida Statutes, and is arbitrary and capricious in that it allows untrained persons to become laboratory directors. All state clinical laboratories and their personnel are subject to federal regulation under the federal Clinical Laboratory Improvement Act (CLIA). Regulations promulgated thereunder classify clinical laboratories based on the complexity of the tests performed. The three category of tests are waived, moderately complex and highly complex. Laboratories performing waived tests, or those that are simple and pose no risk to the public, are not regulated by CLIA while those performing moderate to highly complex testing must meet CLIA's minimum requirements for quality control, quality assurance and personnel. CLIA regulations link personnel requirements with the complexity of testing. The requirements for moderate and highly complex testing personnel are defined separately and are significantly different. Those facilities providing only moderately complex testing may use directors having both master's level and bachelor's level degrees. In recognition of both the sophistication of highly complex tests and the broad scope of a laboratory director's duties and responsibilities, however, CLIA regulations require directors of clinical laboratories performing any highly complex testing whatsoever to be either physicians or doctoral scientists. It is noted that hospital laboratories and independent laboratories perform highly complex testing, and that any hospital laboratory, including rural hospitals, providing full service functions will perform highly complex testing. Under CLIA regulations, laboratories which perform highly complex testing allow the director to reapportion performance of responsibilities to persons having less qualifications. The overall responsibility, however, rests with the director, and the regulations do not allow a master's level individual to direct the clinical laboratory performing highly complex testing, or to delegate responsibilities to a more qualified individual. The proposed rule would allow master's degree scientists to direct laboratories performing highly complex testing so long as that individual hired a "co-director" who was a physician or a doctoral scientist. Under this arrangement, the co-director would be left with only those responsibilities that the lesser qualified master's level director called upon him or her to perform. In this respect, the proposed rule is at variance with federal regulations. While the Board justifies this change on the ground a study shows a shortage of various professionals in the rural hospital setting, the study itself was not introduced into evidence. Moreover, the rule would apply to all hospitals, whether rural or not. Even though the proposed rule is inconsistent with CLIA, in its filing with the Joint Administrative Procedures Committee, the Board represented that "(t)here is no ascertainable parallel federal rule or standard with which to make a comparison." It is reasonable to infer that this response was given so that the Board would not have to give an explanation of the rule's inconsistency with CLIA. Although the Board had a wide range of input regarding this rule, it failed to address a number of valid concerns raised by the opponents. Because of the nature of the testing involved in laboratories performing highly complex testing, severe injury or even death can result from an incorrect test result being reported by one of the clinical laboratory personnel. It is esential, therefore, that clinical laboratories performing highly complex testing be directed by the most competent and trained personnel. This goal is not attained in the proposed rule. The appointment of a lesser qualified person would also mean that a director would not be able to perform all work functions in the laboratory, something current directors can now perform. Further, the proposed allocation of responsibilities would place virtually all of the professional liability on the "co-director" (physician or doctoral scientist) even though the co-director does not "direct" the laboratory. Finally, even though a laboratory can be licensed by specialty, this does not eliminate the above concerns since a specialty is not limited to moderately complex testing. Given the lack of a factual basis or logic to support the rule as presently proposed, subsections (1)(b), (2)(a) and (2)(b) of rule 59O-5.001 are deemed to be arbitrary and capricious and are thus invalid. These portions of the rule also contravene Section 483.800, Florida Statutes, which requires, among other things, the "licensure of clinical laboratory personnel who meet minimum requirements for safe practice." (d) Rule 590-5.006 This rule sets forth the educational requirements necessary for the specific types of licensure and certification for clinical laboratory personnel. As modified by the Board on November 10, 1994, the rule now reads as follows: 59O-5.006 Technician in the Specialty of Alternate Site Testing. Those persons licensed as a director, supervisor, technologist or technician pursuant to part IV of chapter 483, F.S., can work in the specialty of alternate site testing without additional licensure or certification. Persons only performing waived tests as defined in section 483.041(9), F. S. in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements. Persons certified only under this rule shall not perform testing beyond that defined in rule 590-13.006. Persons who perform testing defined in rule 590-13.006 at alternate testing sites as defined in section 483.051(9), F.S., shall meet the requirements of rule 590-5.006(1), (2) and (3) as follows: Education. Have a high school diploma or its equivalent and Have completed 4 contact hours of HIV/AIDS continuing education pursuant to rule chapter 59O-11. Training. For purposes of this rule the term "licensed" requires a full permanent license not a temporary license. An applicant who qualifies under the education requirements of rule 59O-5.006(1) shall in addition meet one of the following requirements: Is licensed as a registered nurse pursuant to chapter 464, F. S. Is licensed as a radiologic technologist pursuant to chapter 468, part IV, F. S. Is licensed as a respiratory therapist or as a respiratory care practitioner certified to perform critical care services pursuant to chapter 468, part V, F. S. Is a perfusionist certified by the American Board of Cardiovascular Perfusion-ists. Additional Training. An applicant who qualifies under the education requirements of rule 590-5.066(1) and the training requirements of rule 590.006(2) shall in addition meet one of the following requirements: Have successfully completed a Board approved Clinical Laboratory Personnel Technician training program in general laboratory practice principles pursuant to rule 590-3.003(3)(d). Have successfully completed alternate site testing training for each test the applicant will be performing which provides instruction in all subject matter areas of rule 590-3.003(3)(e). After completing the training, the applicant shall submit verification from the laboratory director that the applicant has successfully completed the alternate site testing training. Have received instruction in all subject matter areas of rule 590-3.003(3)(d) or (e) while enrolled in a program leading to licensure under chapters 464, 468, part IV, or 468, part V, F. S., or certification by the Board of Cardiovascular Perfusionists and shall submit verification from the program director of such instruction. Although a number of grounds for invalidating the rule were raised in the initial petitions, in their joint proposed order, the FPS, FHA and FLH have limited their grounds to four: (a) the Board was arbitrary and capricious in limiting the application of the rule to five professions; (b) the Board did not comply with Section 455.201, Florida Statutes; (c) the proposed rule contravenes Section 468.351(2), Florida Statutes, by making the terms of the rule applicable to respiratory therapists and respiratory care practitioners, and (d) the Board was arbitrary and capricious by requiring training for waived tests. The allegation regarding the validity of the requirement in subsection (1)(b) for HIV/AIDS continuing education training has been disregarded as being untimely. The rule applies to respiratory therapists and respiratory care practitioners even though Subsection 468.351(2), Florida Statutes, which governs the practice of those professions, clearly provides that "it is the intent of the Legislature that personnel certified or registered pursuant to this part shall be exempt from the licensure provisions of chapter 483." There is no basis in the record for the Board's contention that the exemption in subsection 468.351(2) applies only to blood gas testing, and no others. Given this lack of support for that limitation, the rule contravenes the provisions of the cited statute, and paragraph (2)(c) is deemed to be invalid. The contention is also made that the Board selected the remaining three classes of professions (registered nurses, radiologic technologists and perfusionists) without any justification. Although the Board contended it studied the type of training and education received by these professions, there is no evidence of such a discussion in the Board records, nor is there evidence that rules regarding education and training of other professions were ever presented to all of the Board members. Further, there is no evidence that the Board ever considered other professionals of equal medical educational background. While the Board did receive information from the American Board of Cardiovascular Perfusionists regarding the certification requirements for that organization, that by itself is an insufficient factual basis to justify the limitation imposed by the rule. Under these circumstances, it cannot be said that the remainder of the rule is supported by facts or logic. Petitioners further contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which makes it unlawful for the Board to "create unreasonably restrictive and extraordinary standards that deter qualified persons from entering the various professions." Since the Board acted arbitrarily and capriciously in limiting the approved professions that are subject to the rule, it is found that the proposed rule creates unreasonably restrictive and extraordinary standards for the profession. Finally, by modification to the rule on November 10, 1994, the Board added the following sentence in the first paragraph: "Persons only performing waived tests as defined in section 483.041(9), F. S., in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements." In order to obtain a certificate of exemption, a laboratory must be engaged only in waived tests. These are tests that are relatively simple and pose little risk of harm to the public. Petitioners complain that, while providing this exception to training for waived tests at laboratories holding a certificate of exemption, the Board did not remove the requirement for training for waived tests performed at alternate site testing facilities, and thus the rule is arbitrary. Under the proposed rule, any person performing waived tests, who later becomes certified to perform a moderately complex test, must receive additional training in the waived test as well. While the Board suggests that a hospital can avoid this double training by setting up multiple laboratories in the same location, it failed to provide any justification for this excessive testing. The challenged sentence is accordingly deemed to be arbitrary. (e) Rules 59O-9.002(4) 59O-9.004(7) These two proposed rules levy a $20 fee for the initial and renewal certification of alternate site testing technicians, respectively. In its petition, the FLH contended that the Board lacked statutory authority to adopt both rules, a contention already resolved in petitioner's favor. In its posthearing filing, however, it argues for the first time that the rules are arbitrary and capricious. This contention has accordingly been rejected as not being timely. The FPS and FHA have similarly contended that rule 59O-9.004(7) is invalid on the ground the agency lacks statutory authority to adopt the rule. They also contend for the first time that the rule is arbitrary. This untimely allegation has been disregarded. (f) Rule 59O-10.004 This proposed rule sets forth minimum standards that all laboratory professionals must meet. At issue here are the requirements that all clinical laboratory personnel provide the following services: (14) Process aliquots or components of specimens for analysis according to the type of specimen and procedure to be performed. * * * (18) Recognize output signals and observations and convert them to prescribed units for recording and reporting. * * * In their initial petition, as clarified by a more definite statement, FPS and FHA contended the Board exceeded its rulemaking authority by including professionals engaged in alternate site testing as clinical laboratory personnel subject to Board regulations, a ground already discussed. In their proposed order, petitioners have added the contention that the rule is vague because it contradicts the terms of another rule. Because this newly raised ground is untimely, it has been disregarded. (g) Rule 59O-13.006 The final rule being challenged describes the responsibilities of alternate site testing technicians. Among other things, the rule prescribes the tests that the technicians can perform. The specific portions of the rule which are being challenged read as follows: Alternate Site Testing Technican shall: * * * (b) Perform only tests from the following list provided the requirements of Rule 59O-13.006 have been met: 1. Tests designated as waived pursuant to 42 CFR 493.15, incorporated by reference. * * * 3. Tests designated as moderately complex pursuant to 42 CFR 493.10 and 42 CFR 493.17 which employ whole blood and require no pre- analytical, analytical or post-analytical specimen or reagent manipulation, treatment, extraction, separation or other processing of any kind and must employ an automated single, closed, dry or electrochemical sensor reagent system. The instrumentation shall provide for instrument calibration without any operator adjustment. Post analytical instrument output signals must be directly reportable in the correct units of measure- measure without need for data conversion or other manipulation. Electronic instrumen- tation must have a mechanism whereby the operator is alerted when patient results exceed reportable limits and when internal or external quality control or calibration is not acceptable. Such results shall not be used for the diagnosis, treatment, management or monitoring of patients and shall be validated through the central laboratory. Validation shall be documented at the alternate test site. * * * (j) When affixing the name or signature to any laboratory record or patient report, indicate the professional status by adding the designation "ASTT" to designate Alternate Site Testing Technician immediately following the name or signature if holding a current Florida certificate. The holder of temporary certification must use the designation "GASTT" to designate Graduate Alternate Site Testing Technician until such time as certification is granted by the Board. * * * The specific authority for adopting the rule is Subsection 483.805(4), Florida Statutes, while the laws being implemented are Sections 483.800, 483.813 and 483.825, Florida Statutes. Although a number of grounds for invalidating the rule were raised in the petitions filed by the FLH, FPS and FHA, these grounds have been narrowed in their joint proposed order. As to the newly raised contention that certain parts of the rule, including subparagraph (1)(b)3., are vague, this contention has been disregarded as not being timely. Similarly, the argument that subparagraph (1)(b)3. contravenes the provisions of Subsection 455.201(4), Florida Statutes, was not specifically pled by any party. Likewise, the assertion that paragraph (1)(a) is invalid because its effectiveness is dependent on other rules being enacted has been rejected as being untimely. Since no other viable claim has been raised, the rule is deemed to be invalid on the single ground that the agency has exceeded its rulemaking authority.
Findings Of Fact Based upon my observation of the witness and their demeanor while testifying, documentary evidence received, I make the following relevant factual findings: Petitioner was employed by Respondent in its utilities department for approximately 10 years and 10 months. Petitioner's initial employment commenced in 1974, where he was employed in the position of treatment supervisor and remained in that position for approximately 2 years. In 1975, Petitioner was promoted to treatment supervisor superintendent and worked in that position until July 30, 1984. Respondent admits, and it is undisputed, that Petitioner was a good employee. (TR 8). It is also undisputed that Petitioner was the oldest employee (70 years old) in Respondent's utilities department and he resigned from his duty after he was transferred to a plant designated as the 3 B water treatment plant (3B). On July 20, 1984, Henry J. Block, an employee at 3 B submitted his resignation. Respondent thereafter held a meeting on July 23, 1984, with its operations superintendent, John Hayes, its operations manager, Michael J. Scottie, and chief plant operator II, Ralph Piacente, to discuss its staffing requirements and its need to shift personnel to maintain operations at 3 B on an interim basis. Following that meeting, it was determined that based on Petitioner's qualifications and the duties that he was them performing, which primarily involved process control and the collection of statistical data for both water and wastewater treatment operations, Petitioner would best be able to fill the new position brought about by Block's resignation with the least disruption of staff. Petitioner was therefore advised, on July 27, 1984, that he was being transferred, on an interim-temporary basis to 3 B , effective July 30, 1984. Petitioner was advised that the transfer was temporary and that he would retain his existing pay and benefits while fulfilling his newly assigned temporary responsibilities at 3 B. Additionally, Petitioner was advised that when a permanent replacement was employed to fill the vacancy created by Block's resignation, Petitioner would return to his previous duties. Respondent's two available employees who were able to be temporarily assigned to 3 B, Petitioner's temporary assignment was least disruptive to the efficient and effective operation of Petitioner's operations inasmuch as the other available employee, Ralph Piacenti, was already employed as an operator, whereas Respondent was involved in routine daily gathering and analysis of data that could be compiled and analyzed at a later time. Age was not a factor in Respondent's deliberations and Petitioner was temporarily assigned to 3B based on his ability to step in and perform the duties of retiring employee (Block) with minimal disruption of Respondent's available staff. Respondent has, in the past, required temporary transfers of employees to fill positions vacated by employees who resign. These transfers have included employees of higher rank assigned to lower rank positions and once a replacement is found, the temporarily assigned employees are transferred to their former positions. (TR 125-126). The 3 B plant is situated in the extreme south end of Broward County. It is one of Respondent's older treatment plants and requires more mechanical operations, i.e. requires a greater degree of input by the treatment plant operators who must closely monitor the various functions that take place at the treatment plant such as backwashing filters, etc. Over the years, the plant has been modified and improvements have been made. The 3 B water treatment plant is safe, works properly, and is not obsolete. The working conditions at 3 B are not deplorable and while it does not have some of the automatic capabilities that are available at some of Respondent's more modern plants, this absence of features does not render the working conditions deplorable at 3B. (TR 135-138). Petitioner was provided office space at 3 B. The office was airconditioned with a telephone and had adequate clerical and other support staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Florida Commission on Human Relations enter a Final Order denying Petitioner's prayer for relief and dismiss the petition. RECOMMENDED this 25th day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1987.
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
