The Issue The issue in this case is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment as a caregiver with Dynamic Healthcare Providers, Inc. (“Dynamic Healthcare”), a service provider regulated by Respondent. Since Petitioner applied to be a caregiver, a position of special trust, with Dynamic Healthcare, he is required to undergo a Level 2 background screening. The Department of Children and Families (“Department” or “DCF”) conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a history of involvement with law enforcement, as Petitioner admitted in both the paperwork he filed with the Agency and in his testimony at hearing. On September 27, 1994, Petitioner entered a plea of guilty to cocaine possession, a third-degree felony, and to possession of drug paraphernalia, a first-degree misdemeanor. The cocaine possession conviction is a disqualifying offense for employment in a position of trust. He was ordered to pay court fees and costs, and sentenced to 14 days’ confinement in county jail. In the course of that same arrest, Petitioner also was charged with battery on his pregnant girlfriend, a misdemeanor offense, but that charge was later abandoned. In his response to the Exemption Questionnaire, Petitioner explained the incident as follows: A lady whom I was getting high with on a daily basis and shared my residence with[,] we got into an argument. I refused to share my drugs with her that particular day[.] She then became irate and called the police and told them I assaulted her. I was searched by the officer[s.] [T]hey found a crack pipe on my person with residue. I was charged with cocaine possession[.] At the hearing, when asked if he had another prior arrest for domestic violence, Petitioner admitted he had been arrested previously, and charged with domestic violence in a separate incident, regarding a dispute he had with a previous girlfriend. Petitioner also explained his other previous arrests. Concerning his January 22, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While standing on the corner in the Miami Over Town area[,] I was suddenly approached by [a] Miami Dade Police Officer. I was in possession [of] what appeared to be crack cocaine. I was arrested and charged with possession. No action was taken because it was not cocaine. It gave the appearance of an illegal substance. Concerning his March 31, 1995, arrest for cocaine possession, a third-degree felony, Petitioner explained in his Exemption Questionnaire: While traveling south on Biscayne Blvd and NW 69[th] Street[,] I was involved in an accident[.] I had a crack pipe and approximately two crack rocks in the vehicle. A search was conducted by Miami Dade Police, I was subsequently charged with possession and DWLS [;] no action was taken. Concerning his April 24, 1998, arrest for driving while license suspended/habitual offender, a felony, Petitioner explained in the Exemption Questionnaire: I was driving a young lady home who was feeling ill at the time. I was pulled over at a DUI check point on 175st [sic] NW 27th Avenue in Miami Gardens. My license was suspended during that time[.] [C]onsequently; [sic] I was arrested for DWLS and for a bench warrant[.] I really cannot remember what it was for. Eventually; [sic] I got my licenses [sic] reinstated. Concerning his May 29, 2008, arrest for failure to appear [capias] regarding a traffic offense, Petitioner explained in his Exemption Questionnaire: I was pulled over by Miramar police while going to the store. The officer informed me that there was an outstanding bench warrant for failing to appear. The charge was DWLS which was a 22 year old case. The charges [sic] was eventually dropped [;] case was dismissed. Petitioner also was questioned concerning a June 13, 1992, charge of homicide-willful kill with a weapon, which the Agency had originally listed as a disqualifying offense to employment in a position of trust. In an addendum to his Exemption Questionnaire, Petitioner explained: A guy I was hanging out with got into an argument with another individual, [sic] he produced a firearm. Consequently; [sic] he shot the guy in the leg and the guy feel [sic] to the ground. The shooter then pointed the gun at the guy’s head in an attempt to shot [sic] him in the head area. I then grabbed the shooter to stop him from shooting the other guy in the head. We then left the area in the shooter’s car. Metro Dade Police gave chase, the gun was thrown out the car [sic] consequently, the shooter pulled over. We were both taken into custody. The charged [sic] was eventually dropped down to a misdemeanor. The Agency reviewed all of Petitioner’s criminal records and determined that his 1992 charge of homicide-willful kill with a weapon had been reduced to accessory after the fact, a misdemeanor, for which adjudication of guilt was withheld on June 13, 1992. The Agency did not consider this conviction to be a disqualifying offense, but did consider it in the totality of the evidence it reviewed concerning Petitioner’s exemption from disqualification. Mr. Gerry Driscoll, the regional operations manager for the Agency’s Southeast Region, credibly testified that the Agency has a significant responsibility to a vulnerable population, many of whom lack competency, and are unable to communicate to others any negative or improper actions carried out by their caregivers. These individuals are often solely dependent on their caregivers, and are thus susceptible to exploitation. Mr. Driscoll noted that the Agency considers any prior criminal conduct involving violence or aggression with particular care when exercising its authority and discretion to grant exemptions for employment in positions of trust. In his written submission to the Agency, Petitioner did not specifically admit to causing any harm or injury to any victim. However, at the hearing, he admitted that he had caused injury to others with whom he associated during his period of addiction, especially his family, girlfriends, and children. Academically, Petitioner has accomplished a great deal. He has received the following post-secondary school degrees: an associate of arts degree from Miami Dade College (2010), a bachelor degree in Liberal Studies from Barry University (2013), and a masters in Social Work (“MSW”) (2016) from Barry University. He has been a lifetime member of the Delta Epsilon Iota Academic Honor Society since 2013. Petitioner’s résumé demonstrates an uninterrupted work history since 1997, with experience in the fields of social services, mental health, and substance abuse counseling, primarily involving individuals with mental illness and substance addictions. He was most recently employed with Dynamic Healthcare and has been providing substance abuse counseling and support to non-Agency clients with addiction issues. Petitioner submitted letters of reference and recommendations from: his current employer, Samuel E. Kelly, director of Dynamic Healthcare; Justice for Life, a psycho- education provider for the Misdemeanor Drug Court Program in Broward County; Better Way of Miami, Inc., an inpatient facility for drug and alcohol addiction; and Overtown Youth Center and John F. King, Attorney at Law, from 2008. Petitioner submitted additional training certificates that were considered by the Agency, including: The McShin Foundation Leadership Training Institute Peer Addiction Recovery Training; The Broward House HIV/AIDS Continuing Education (2014); HIPAA Basics Training (2013); Aggressive Control Training (2014); and Ethics Training (2014). Mr. Driscoll testified that the Agency also considered the following exemptions previously granted to Petitioner by other agencies: an employment waiver granted by DCF on October 10, 2008, to work with adults in mental health and substance abuse; an exemption from disqualification from employment under section 435.07, Florida Statutes, granted by the Agency for Health Care Administration on January 23, 2015; and another more recent exemption from DCF granted on April 29, 2016. At the hearing, Petitioner admitted he had suffered a “22-year addiction to a controlled substance.” He started drinking alcohol at age ten, and ended with crack cocaine. He received substance abuse counseling from two different providers: Better Way of Miami in 1995-1996, and Spectrum Programs in 2002- 2003. Moreover, he offered credible testimony that he has been clean from this addiction for 20 years and attends regular meetings of Narcotics Anonymous (“N.A.”) or Alcoholics Anonymous (“A.A.”) to this day. Mr. Driscoll’s position was that, despite there being some evidence of rehabilitation submitted with the Application for Exemption, and the subsequent request for hearing, and even the sincere testimony given by Petitioner at hearing concerning his addiction, this did not amount to sufficient evidence for him to recommend an exemption from disqualification. When considering all the evidence in its totality, he testified, the Agency did not conclude Petitioner had met his burden by the standard of clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s Application for Exemption from Disqualification. DONE AND ENTERED this 1st day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2017. COPIES FURNISHED: Curtis A. Jackson 2860 Northwest 187th Street Miami Gardens, Florida 33056-3131 Llamilys Maria Bello, Esquire Agency for Persons with Disabilities 201 West Broward Boulevard, Suite 305 Fort Lauderdale, Florida 33301 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Michele Lucas, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a practical nurse, knowingly misrepresented a material fact by denying prior participation in an alcohol recovery program for treatment of alcohol abuse, and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact On December 10, 2014, Petitioner Stephanie DeCelestino ("DeCelestino") submitted an Initial Application for Licensure to Respondent Board of Nursing (the "Board"). Because DeCelestino is a licensed practical nurse ("LPN") in another state, she applied for a Florida LPN license by endorsement (a process which allows an applicant to avoid sitting for another examination). The Board is responsible for reviewing such applications and determining which should be certified for licensure to the Department of Health ("Department"), and which denied. Under the heading "Criminal History," the application which DeCelestino completed asked a single question: "Have you EVER been convicted of, or entered a plea of guilty, nolo contendre, or no contest to, a crime in any jurisdiction other than a minor traffic offense?" DeCelestino answered, "NO." Under the heading "Health History," the application which DeCelestino completed contained five questions, as follows: In the last five years, have you been enrolled in, required to enter into, or participated in any drug or alcohol recovery program or impaired practitioner program for treatment of drug or alcohol abuse that occurred within the past five years? In the last five years, have you been admitted or referred to a hospital, facility or impaired practitioner program for treatment of a diagnosed mental disorder or impairment? During the last five years, have you been treated for or had a recurrence of a diagnosed mental disorder that has impaired your ability to practice nursing within the past five years? In the last five years, were you admitted or directed into a program for the treatment of a diagnosed substance- related (alcohol/drug) disorder or, if you were previously in such a program, did you suffer a relapse in the last five years? During the last five years, have you been treated for or had a recurrence of a diagnosed substance-related (alcohol/drug) that has impaired your ability to practice nursing within the past five years? DeCelestino answered "NO" to all five questions. The Department orders a criminal background check on all applicants. The results for DeCelestino suggested that she had an undisclosed criminal history. Accordingly, by letter dated December 23, 2014, the Department notified DeCelestino that her application might contain false information and invited her to "modify [her] response to the criminal history question" and provide "a typed self explanation of each charge" together with "all available court dispositions" among other items. DeCelestino complied. By letter dated February 7, 2015, DeCelestino informed the Department (as she would later testify credibly at hearing) that she had been arrested in Tennessee on February 14, 2014, for committing a crime after "consuming large amounts of alcohol." For this offense, DeCelestino had been sentenced, on April 22, 2014, to six months' probation on the conditions that she "continue counseling" and have no contact with the victim. The mandatory "counseling" consisted of attending Alcoholics Anonymous ("AA") meetings, which DeCelestino did from April to September 2014. Later, DeCelestino voluntarily received group counseling through ADAP Counseling Services ("ADAP") in Florida, which she completed on November 9, 2014. DeCelestino disclosed these facts to the Department in her February 7, 2015, correspondence, writing: "I attended AA meetings and a strict counseling group here in Florida called Adap." Together with her letter, DeCelestino furnished the Department with a copy of the Order for the Expungement of Criminal Offender Record dated November 20, 2014, by which the Tennessee court having jurisdiction over her criminal offense had dismissed the charge and ordered "that all PUBLIC RECORDS relating to such offense . . . be expunged and immediately destroyed." She also submitted an Application Update on which she switched her answer to "Yes" in response to the criminal history question. The Board accepted DeCelestino's explanation of the criminal charge and does not currently allege that she knowingly misrepresented a material fact by denying the arrest in Tennessee, given that the record thereof had been expunged. On June 30, 2015, however, the Board executed a Notice of Intent to Deny DeCelestino's application for certification as a practical nurse by endorsement, relying upon other grounds in support of such proposed action. In the notice, the Board alleged: As part of a pretrial intervention agreement, the applicant was required to attend substance abuse counseling sessions. The applicant was discharged from the sessions on or about November 9, 2014. The Board accused DeCelestino of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied, in response to the first health history question on the application, having participated in an alcohol recovery program for treatment of alcohol abuse that occurred within the past five years. The Board's factual allegations are not entirely accurate. The counseling provided by ADAP, which DeCelestino completed on November 9, 2014, was not court ordered, but rather involved services that DeCelestino sought on her own. There is no evidence in the record persuasively establishing that these services were provided as part of a "drug or alcohol recovery program" for the purpose of treating "drug or alcohol abuse."1/ Perhaps more important, there is no persuasive evidence supporting a finding that DeCelestino knew that the ADAP counseling services met these criteria, even assuming that they did, which to repeat was not proven. The undersigned accepts as credible DeCelestino's testimony that she did not interpret the health history question as an inquiry about such counseling as she received at ADAP. As for her court ordered attendance at AA meetings, which DeCelestino was "required to enter into," the undersigned accepts as credible her testimony that she did not consider AA to be an "alcohol recovery program . . . for treatment of drug or alcohol abuse." There is, to explain, no evidence in the record establishing the nature of AA meetings, and, although the undersigned has a general idea of what AA does given that it is a well-known organization with which most adults in the U.S. have at least a passing familiarity through common experience and exposure to the popular culture, it is not clear to the undersigned that AA constitutes an "alcohol recovery program" within the meaning of the health history question.2/ Because the question does not unambiguously inquire about AA, DeCelestino's conclusion that nondisclosure of her attendance at AA meetings was permissible is arguably correct and at worst an honest mistake. Based on DeCelestino's credible testimony, which the undersigned credits, it is found that DeCelestino had no intention of deceiving the Board in hopes her attendance at AA meetings or ADAP counseling sessions would not be discovered. She readily disclosed this information when asked for an explanation of her criminal background, even though no issue had been raised concerning her response to the health history question. Had she intended to conceal her participation in an "alcohol recovery program," DeCelestino surely would not have mentioned AA or ADAP in her February 7, 2015, letter to the Department because she could have responded truthfully to the inquiry about her criminal charge without doing so. The order sentencing her to probation, recall, required her to "continue counseling" but said nothing about attending an "alcohol recovery program." The fact that she volunteered the information while making no attempt to update her application to conform thereto persuasively corroborates her testimony that she did not understand the health history question to be asking about AA meetings or ADAP counseling. Determinations of Ultimate Fact DeCelestino is not guilty of attempting to procure an LPN license by knowing misrepresentations, which is a disciplinable offense and grounds for denial of licensure under section 464.018(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving DeCelestino's application for licensure by endorsement as a practical nurse unless it determines that she might be impaired as a result of alcohol abuse, in which case a referral should be made pursuant to section 456.076(3) with further proceedings to follow in accordance therewith. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
Findings Of Fact The Respondent, Robert Hurner, currently holds Florida teaching certificate 447579, covering the area of Mental Retardation, from the Florida Department of Education (DOE). At all times material, the Respondent was licensed by DOE and employed as an ESE teacher at Paxson Junior High School, in the Duval County School District. On October 31, 1988, the Respondent was cleared to be issued a teaching certificate by Professional Practices Services after he acknowledged a 1984 conviction for driving under the influence of alcohol. On January 7, 1990, the Respondent was arrested and charged with driving while under the influence of alcohol. On March 19, 1990, the Respondent pled nolo contendere to the charge of driving while under the influence of alcohol and was adjudicated guilty by the court. On March 19, 1990, the court sentenced the Respondent to three months' probation and ordered him to pay $926.50 in court costs and fines. In addition, the Respondent's driver's license was revoked for five years, and he was referred to the North Florida Safety Council. On June 15, 1993, the Respondent applied for a renewal of his teaching certificate. On his application, the Respondent acknowledged his 1990 conviction for driving while under the influence of alcohol. Respondent has been a respected teacher with good evaluations from the Duval County School Board for seventeen years, despite his alcohol-related convictions. Neither of the arrests nor the underlying behaviors associated therewith occurred during school hours or in relation to any school sponsored events. No bodily harm or property damage was shown to be incident thereto. Respondent made no effort to hide his convictions from Petitioner agency and unrefuted testimony shows that his job performance and teaching reputation have not been affected thereby. The second event in 1990 occurred when Respondent was at a very low emotional ebb in his personal life. His mother was terminally ill. The North Florida Safety Council, in conjunction with the court and the Department of Highway Safety and Motor Vehicles, referred the Respondent to the Chemical Dependency Counselling Clinic. He successfully completed the requirements of all referring agencies. Although not required to do so, Respondent voluntarily increased his rehabilitation program with the Clinic to a full twelve weeks: five weeks awareness education and seven weeks of group and individual therapy. He did not use his personal problems as an excuse to fail, but was enthusiastic and made up any sessions he missed due to reasonable excused absences. On August 17, 1993, Respondent was discharged with such a good prognosis that no treatment recommendations were made by any of his three counsellors. Currently, he is diagnosed as "an alcoholic in recovery working on a lifestyle change." One of his former counsellors with the Chemical Dependency Counselling Clinic, Ms. Tibbett, testified on Respondent's behalf. She was trained by the U.S. Navy in the identification, treatment, prevention, and rehabilitation of drug and alcohol addiction. She has worked 16 years in the field and was certified by the Department of Highway Safety and Motor Vehicles in 1985 and as a Certified Addiction Associate Professional (CAAP) by the Department of Professional Regulation in 1989. She currently is completing the successor agency's requirements for the higher ranking Certified Addiction Professional (CAP) certification. She now teaches other addictionologists and drug/alcohol treatment personnel in both the public and private sectors in addition to her own clinical work. She volunteers to the Duval County School Board on occasion. As evidence of Respondent's dedication to his recovery as well as of his recovery itself, Ms. Tibbett pointed to Respondent's record of never failing a random alcohol test while he was in the Chemical Dependency Counselling Clinic program, even on a holiday Saturday morning at 6:00 a.m. and even after his mother died after a long illness in May, 1993. Ms. Tibbett believes Respondent's sobriety record on those occasions is good reason to believe he will never relapse into alcoholism. She opined that he is no risk to the public in general nor specifically to any school children in his care. She further testified that she gladly would have her own seventeen year old son taught by him. Although she explained that no alcoholic is ever "cured," in her opinion Respondent is rehabilitated. Her well-reasoned professional opinion is accepted. Upon the unrefuted testimony of Respondent; of Mark S. Kager, a colleague and professional teacher for fifteen years; of Albert George Day, Respondent's housemate; of William Dale Tackett, a colleague and another professional teacher for seventeen years; and of Angela Hornbeck, Respondent's steady girlfriend for four years; it is found that Respondent voluntarily has imbibed no alcoholic beverages since April 2, 1990.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency enter a final order finding Respondent guilty of violating Section 231.28(1)(e) F.S.; not guilty of violating Section 231.28(1)(c) F.S.; and ordering him to fulfill a one year probationary period including random drug and alcohol testing as prescribed by the Educational Practices Commission. RECOMMENDED this 29th day of November, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 29th day of November, 1994.
The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
Findings Of Fact Respondent Newell Jerome Griffith is a licensed physician and, at all times pertinent to this proceeding, was engaged in the practice of medicine at Winter Haven, Florida. (Testimony of Respondent) During the period 1979-1980, Respondent's investigator, Lawrence E. Dodd, Jr., conducted routine audits of pharmacies in the Winter Haven area. The purpose of his audits was to review prescriptions for controlled substances in order to determine if irregularities had taken place in the prescribing and dispensing of such substances by pharmacists and physicians. During the course of these audits, Dodd found that Respondent had issued a large number of prescriptions in preceding years for various controlled substances which fell into the category of Schedule II under Chapter 893, Florida Statutes. The prescriptions in questions were prescribed for and obtained by Gerald Cooney, Annette Groover, and Peggy Moore. (Testimony of Dodd, Petitioner's Exhibits 1- 9) The following facts relate to each of the above named individuals: Gerald Cooney Respondent has treated Gerald Cooney as a patient since approximately 1974. Medical records reflect that Respondent treated Cooney for a medullary sponge kidney or similar chronic urinary infection, and acute and chronic recurrent infection of the left knee area which originally had been caused by a bicycle injury and was aggravated by shrapnel wounds in the same area during wartime service in 1970. Since that time, he has had multiple problems with his left leg requiring hospitalizations and has had a chronic recurrent cellulitis. Be has never had full use of the extremity since that time and has had recurrent swelling and extreme pain requiring narcotics. To alleviate the pain, Respondent prescribed both oral and injectable Dilaudid. In 1977, Respondent referred Cooney to the University of Florida College of Medicine regarding his renal difficulty. On April 1, 1977, Respondent wrote the Chief, Division of Urology, at the College that Cooney continues to require, and receive oral Dilaudid in amounts greater than I am comfortable with, but see no alternative to prescribing." On April 7, 1977, the Division Chief wrote Respondent that he had been unable to find any reason for Cooney's protracted pain requiring narcotics. In July 1978, Cooney was admitted to the Veteran's Hospital in Tampa for urinary tract infection and underwent a cystoscopy. The patient was discharged with instructions to return to Respondent for treatment of his "narcotic dependency." Respondent's office notes on February 19, 1979, stated that Cooney had been taking from 14 to 24 Dilaudid tablets daily and was able to make a reduction in dosage for a day or two, but then exacerbation of all illnesses recurred. The medical records further reflect a letter written by Respondent on August 17, 1979, "To Concerned Treating Physician or Physicians" which stated that Respondent had been treating Cooney for Dilaudid abuse which had come about because of symptoms associated with his left knee and urinary problems. In September of 1978, Cooney was again admitted to a Veteran's Hospital for a urinary tract infection, sponge kidney, and Dilaudid addiction. The attending physician noted that since Cooney's dependency had not been treated by his private doctor in Winter Haven, after his last discharge, it was decided that it should be treated at that time by withdrawing Dilaudid. Cooney, however, disagreed and was discharged to be treated at a drug center in Orlando. He did not seek such treatment but obtained further prescriptions for Dilaudid from Respondent. During the period November 1976 to June 1979, Respondent prescribed over 12,500 tablets of Dilaudid 4 mg for Cooney. Additionally, Dilaudid was prescribed in injectable form in the amount of 2 mg./cc. 14 x 20 vials. Between July and December 1979, Respondent prescribed over 2500 tablets of Dilaudid 4 mg, and 24 tablets of Dilaudid 2 mg. Between December 1979 and January 1981, Respondent issued prescriptions to Cooney for almost 7500 tablets of Dilaudid 4 mg, and a prescription for 20 1 cc ampules of injectable Dilaudid. Dilaudid is a Schedule II controlled substance listed under Chapter 893, Florida Statutes. It is customarily used for pain and has addictive qualities. Respondent is of the opinion that there was no alternative to the treatment which he gave to Cooney. He recognized that the patient was addicted to Dilaudid and attempted to assist him with detoxification in 1976. At one time, Cooney was taking as many as 20 tablets per day and, although Respondent limited him to between 16 to 20 tablets per day, he acknowledged that this amount was excessive. Respondent had prescribed other drugs for the patient, but he had allergic reactions to them. (Testimony of Dodd, Deatsch, Respondent, Petitioner's Exhibits 5, 6, 9, Respondent's Exhibit 1) Annette Groover Annette Groover has been a patient of Respondent's for over 26 years and was once employed by him as a nurse's assistant and receptionist. During this period, Respondent treated her for severe migraine headaches and seizure disorder. During the course of treatment, Respondent referred the patient to neurologist for consultation at various times who placed her on anticonvulsive medication. Respondent had prescribed Talwin for the patient's headaches, but in 1970 he became aware that she had used the drug excessively and for feelings of depression at times rather than for headache relief. In September 1979, Respondent's office notes reflect that Groover had been using a Variety of medications including Talwin, and that she had revealed that if she did not take the drug "her legs start to tremble, nose starts running, and I get jittery." Respondent thereafter counseled the patient regarding drug habituation and she thereafter was successful in withdrawal from Talwin. He then placed her on a regime of injectable Demerol because other drugs did not provide headache relief. In 1977, a consulting neurologist examined the patient and characterized her headaches as a chronic problem which was most likely related to tension. Between November and June 1979, Respondent prescribed for the patient more than 1850 cc. of injectable Demerol, 50 mg./cc. In addition, 12 tablets of 50 mg. Demerol and 100 tablets of Dexedrin Sulphate, 5 mg., were prescribed. Between July 1980, and November 1980, Respondent prescribed 66 2 cc. vials of Demerol, 100 mg./cc. Although Respondent's patient records do not reflect that Respondent examined Mrs. Groover between October 7, 1977 and March 23, 1978, he issued 29 prescriptions for injectable Demerol to her during that period. Respondent maintained at the hearing that his treatment of Mrs. Groover was legitimate and that she has never shown any withdrawal symptoms during periods of several weeks when she has gone without the drug. Mrs. Groover's husband is a medical technician in the Naval Reserve and normally administers her Demerol injections. Although she has tried other drugs, most of them have conflicted with her seizure problem and Demerol does not affect her in that manner. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. It is a central nervous system depressant which relieves pain, but is addictive. (Testimony of Respondent, Groover, Dodd, Deatsch, Petitioner's Exhibits 1-2, 7) Mary E. (Peggy) Moore Mrs. Moore is a legal secretary who has been a patient of Respondent for over 20 years. Respondent has treated her primarily for diabetes and pancreatitis. Over a number of years, she was hospitalized several time after referrals by Respondent to gastroenterology specialists. Demerol was prescribed both by Respondent and specialists to control the pancreatitis attacks. Her medical records reflect that she has been subject to episodes of hypoglycemia-- insulin reaction, usually complicated by epigastric pain and vomiting. In December 1979, after Mrs. Moore had been admitted to the Winter Haven Hospital for insulin reaction, the gastroenterologist who treated her stated in his report that the patient takes an appropriate amount of properly monitored narcotics in the form of Demerol at intervals of one to three months when experiencing pain from pancreatitis. Respondent also prescribed Quaaludes for Mrs. Groover in order that she could sleep because she had been under extreme pressure and stress. She took two tablets at night off and on for two to three years. She needed Demerol in the past at particular times when she had pancreatitis attacks. In 1980, Respondent referred her to Emory University Diagnostic Clinic and it was discovered that diabetic neuropathy was causing pain rather than pancreatitis. She is not taking Demerol at the present time and no longer suffers from her former attacks. During the period when she took Demerol, her daughter who was a registered nurse administered the injections and later her husband performed this task. On one occasion in 1978, her Demerol supply was stolen when she was on a trip. During the period when she was using Demerol, her husband destroyed any that she did not use between attacks. Respondent testified at the hearing that Demerol did become a problem with her before she went to Emory University Clinic, but she has not used it since that time. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. Quaaludes are a sedative and also a Schedule II controlled substance which is suitable periodically for sleep, but the patient is subject to rapid tolerance of the drug. One-half tablet of 300 mg Quaalude is usually sufficient for infrequent users. Mrs. Moore terminated the use of Quaaludes in the summer of 1980. Respondent's medical records concerning Mrs. Moore reflect that he did not examine her during the period May 9, 1979 and October 1, 1979, but continued to issue prescriptions to her for Demerol and Quaalude. Between December 1976 to June 1979, Respondent prescribed for Mrs. Moore in excess of 1400 cc. of injectable Demerol, 50 mm./cc., and 1900 tablets of 300 mg. Qualudes. Between July 1979 through December 1979, he prescribed 400 tablets of Quaalude,300 mg., 277 cc. of Demerol 50 mg./cc., and 230 cc. of Demerol, 100 mg./cc. Between July and November 1980, Respondent prescribed 101 cc. of Demerol, 50 mg./cc., 46 cc of Demerol 100 mg./cc., and 172 cc. of Demerol, 75 mg./cc. (Testimony of Dodd, Deatsch, Respondent, Moore, Petitioner's Exhibits 3-4, 8, Respondent's Exhibit 2) In the opinion of physicians who are experts in the field of drug treatment and internal medicine who reviewed the medical records of Gerald Cooney, Annette Groover, and Peggy Moore, Respondent exercised poor judgment in prescribing known addictive medicine in excessive amounts for prolonged periods to those patients, without properly monitoring their course of treatment. They therefore are of the opinion that Respondent failed to treat those patients in conformity with recognized acceptable standards of medical practice. Specifically, they based their opinions in the case of Cooney upon the fact that Respondent was aware of the patient's addiction to Dilaudid, yet prescribed inordinate amounts of the drug over an extended period of time without taking definitive action to either cut off the patient's supply or to change the medication. A normal dose of Dilaudid would be from four to six 4 mg. tablets a day and never should exceed 12 or 14 during limited time periods for acute pain. Respondent's dosage of 16 to 20 tablets per day on a continuing basis resulted in perpetuation of the patient's addiction. As to Annette Groover's case, the expert testimony reflects the opinion that since the Respondent was aware of the patient's former dependency upon Talwin, he should have prescribed other addictive drugs, such as Demerol, in limited amounts and attempt to use non-addictive medication for the patient's migraine headaches, particularly where, as here, they result from periods of tension. They also are of the opinion that the use of Demerol by the patient reflects a pattern of abuse, but not necessarily addiction. Further, a patient with a history of drug abuse should not have been permitted to administer Demerol by injection at her home, but should have been required to have such treatment administered by a nurse or at a hospital emergency room. The basis of the expert opinion in the case of Peggy Moore is that Respondent prescribed excessive amounts of Demerol and Quaalude for the patient without adequate monitoring of the need for such drugs, and that he permitted home administration rather than at his office, or a hospital site in spite of his expressed concern over the possibility that the patient may have been abusing the use of such drugs. The above opinions are confirmed by the evidence and accepted as a basis for this finding of fact. Other opinions expressed by the expert witnesses during the course of their testimony are not considered to be supported by the evidence. (Testimony of Deatsch, Davenport) Dr. John Smythe, a Winter Haven physician who has known the Respondent for a period of 27 years, is of the opinion that although Respondent's treatment of the patients in question was perhaps "unorthodox," he was dealing with severe chronic patients and perhaps showed too much compassion in prescribing greater drug amounts than he (Smythe) might have prescribed under similar circumstances. Respondent's reputation in the Winter Haven medical community is that of an intelligent, sincere, and conscientious physician who does not hesitate to refer patients to specialists as necessary. (Testimony of Smythe) Dr. William T. Steele, a Winter Haven physician who has known Respondent since the latter has practiced in Winter Haven, is of the opinion that he is an outstanding physician with high moral character who conducts his practice as well as any physician in the community. (Testimony of Steele)
Recommendation That Petitioner suspend Respondent's privilege to prescribe Schedule II controlled substances as defined by Chapter 893, Florida Statutes, for a period of one year, but that the suspension be stayed and Respondent be placed on probation for a like period under appropriate terms and supervision established by the Board to protect the public against inappropriate prescribing of controlled substances. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1981. COPIES FURNISHED: Deborah J. Miller, Esquire Assistant General Counsel Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Robert A. Pyle, Esquire Post Office Box 557 Lake Alfred, Florida 33850
