The Issue Whether, in evaluating the responses to an Invitation to Bid and in making a preliminary decision to award the subject contract for drug screening services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact At all times relevant to these proceedings, Respondent has been the duly-constituted school board for Miami-Dade County, Florida. Respondent issued the subject ITB to obtain the services of an organization to screen applicants for employment and existing employees for drug use. Screening of employees subject to the Omnibus Transportation Employee Testing Act (OTETA) was included in the subject ITB. The purpose of the subject ITB was stated as follows in paragraph 1 of the section styled “Special Conditions”: The purpose of this bid is to obtain the services of an organization to conduct applicant and employee specimen collection and drug screening services, both to meet the general requirements for collection and drug screening services and the Omnibus Transportation Employee Testing Act (OTETA) requirements for collection and drug screening services. These professional services are described in the Miami-Dade County Public Schools (M-DCPS) Drug-Free Workplace Technical Guide. [1] Petitioner and Mercy timely filed responses to the ITB. Following the bid opening on May 23, 2006, Respondent determined that the bid award should go to Mercy, which was the low bidder. After Mercy, Petitioner was the next low bidder.2 Petitioner thereafter timely filed its notice of intent to file a bid protest, which was followed by a timely filed bid protest. Paragraph 4 of the Special Conditions Section of the ITB (paragraph 4) pertained to technical requirements and provided, in part, as follows: TECHNICAL REQUIREMENTS: The following items, which shall constitute proof of technical competency, are requested to be submitted with the bid, or within three (3) days of request: * * * Copies of the certifications/licenses of all collection site staff and laboratory staff who will be handling specimens in the chain of custody as indicated in Attachment B. A copy of the quality assurance program of the testing laboratories, which must encompass all aspects of the testing process as indicated in Attachment B and Attachment E. List all collection sites, which must include the site address and copy of the certification of each site to be considered for this bid. Number of mobile sites available and proof of compliance and/or certification of mobile sites, if applicable. When it submitted its initial response to the ITB, Mercy did not specifically respond to the items listed in subparagraphs b., c., d., and e. of paragraph 4. On May 24, 2006, Respondent wrote to Mr. Rey, Mercy’s, laboratory director and the person responsible for Mercy’s response to the ITB, requesting copies of documents responsive to subparagraphs b., c., d., and e. of paragraph 4. Mercy thereafter timely supplied the requested information. CERTIFICATION Attachment B to the ITB contained the following pertaining to certification: A laboratory must be certified by the United States Department of Health and Human Services (DHHS). DHHS has established comprehensive standards for laboratory policies, procedures, and personnel, which provide quality assurance and performance testing specific to urine testing. To be certified, a laboratory must be capable of testing for, at a minimum, the following classes of drugs: Alcohol, Marijuana, Cocaine, Opiates, Amphetamines, Barbiturates, Benodiazepines, Methaqualone, and Phencyclidines, as listed in Attachment E. There was a dispute between the parties as to whether Mercy demonstrated it had the requisite certification. That dispute is resolved by finding that Mercy demonstrated that it had the requisite certification to perform all testing other than the OTETA testing.3 Mr. Rey testified, credibly, that Mercy intended to subcontract out the OTETA testing to a laboratory certified to perform such testing. Mercy did not identify the entity that would conduct the OTETA testing, however, there is nothing in the ITB to prohibit such subcontracting and there is nothing in the ITB that would require a bidder to have such a subcontract in place at the time it submitted its response to the ITB. Further, there is no requirement in the ITB that the bidder identify the entity that would serve as the subcontractor for the OTETA testing.4 There was also a dispute as to whether the certifications provided by Mercy would suffice as certification for the contemplated collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. Mr. Rey testified, credibly, that the collection sites could be operated by Mercy pursuant to its existing certifications. MEDICAL REVIEW OFFICER Attachment B contained the following in paragraph 17 under the heading of “Compliance”: 17. Reporting and Review of Results. (The service of a Medical Review Officer (MRO) is required to review ALL [sic] test results. The MRO may NOT [sic] be an employee of the laboratory. Mercy did not identify the person or organization that would serve as the MRO in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non- responsive because Paragraph 17 is merely a statement of industry practice. The ITB did not require bidders to identify the person or organization that would serve as the MRO for the winning bidder. THIRD PARTY ADMINISTRATOR A laboratory performing the type screening contemplated by the ITB must have a third party administrator (TPA) to administer the drug testing program. As with the MRO, a TPA must be independent of the laboratory to avoid conflicts of interest. Mercy’s response did not identify the person or organization that would serve as the TPA in the event it was awarded the contract. That omission did not make Mercy’s response to the ITB non-responsive because the ITB did not require bidders to identify the person or organization that would serve as the TPA for the winning bidder. IDENTIFICATION OF COLLECTION SITES Under the heading of Collection and Screening Site Parameters in Attachment B, Technical Requirements, the ITB provides, in part, as follows: Collection and screening sites shall be accessible Monday through Friday from 8:00 to 4:30 p.m., at a minimum, and shall meet the following parameters: The following locations [sic] parameters are examples of locations, which shall comprise the areas for collection and drug screening to insure convenience for applicants and employees: Area 1. East of 27th Ave. from Flagler St. North to 215th St. Area 2. West of 27th Ave. from Flagler St. North to 215th St. Area 3. East of State Road 836, south to intersection of US 1, then south to 392nd St. Area 4. West of State Road 836, south to intersection of US 1, then south to 394th St. * * * 4. At least one site in the North end of Miami-Dade County and one site in the South end of Miami-Dade County must be available to perform reasonable suspicion testing of employees. The hours of operation of these facilities must be from 8:00 a.m. to 12:00 midnight. Mercy’s response to the foregoing was to provide specific addresses to two locations that were presently available as collection sites, to advise that it had a mobile collection site, and to provide three approximate locations where it would establish collection sites if awarded the bid. There was a dispute between the parties as to whether Mercy was responsive to the foregoing item pertaining to collection sites. The greater weight of the credible evidence resolved that dispute in the affirmative. The ITB did not require bidders to provide specific addresses for collection sites, nor did it require bidders to specify the hours of operation of each proposed collection site. The testimony of Ms. Fahmy and Ms. Jones established that Mercy adequately responded to this item of the ITB. BREATH ALCOHOL TESTING Mercy’s response to the ITB did not separately address breath alcohol testing or certification for such testing. Mercy’s response did include bid prices on specified breath alcohol testing procedures as required by the ITB. There was no requirement that Mercy provide a separate certification for breath alcohol testing. Petitioner is a TPA, not a laboratory, and is the existing provider for the drug screening services contemplated by the ITB. Petitioner intended to subcontract all laboratory work required by the ITB. Petitioner’s response to the ITB was responsive. Mercy’s response to the ITB was also responsive. Mercy committed to comply with all requirements of the ITB and it established by its responses that it had the wherewithal to meet that commitment. Mercy was the low, responsive, responsible bidder on the ITB.
Conclusions For Petitioner: Holiday Hunt Russell, Esquire The Law Offices of Holiday Hunt Russell, Chartered 1930 Harrison Street, Suite 309 Hollywood, Florida 33020 For Respondent: Stephen L. Shochet, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s bid protest and awarding the ITB to Mercy. RESERVATION OF JURISDICTION Jurisdiction is reserved to rule on Petitioner’s Motion for Attorney’s Fees and Costs following Respondent’s entry of a Final Order in this matter. DONE AND ORDERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 18th day of December, 2006.
Findings Of Fact Bell holds license no. ME 0008297 issued by the State of Florida. His license was active from January 7, 1959, until December 31, 1991, at which time Bell's license became inactive because of his failure to pay the renewal fee. Bell is a board certified child and adult psychiatrist. In addition to his practice of psychiatry, Bell practiced general medicine for a year in 1979, worked as a contract physician in several emergency room in Georgia during 1986 and 1987, and worked as a parts warehouseman for an automobile dealership between February and September, 1989. Bell has a long history of alcohol related problems, beginning in August, 1982, when Bell was charged in South Carolina with driving under the influence of alcohol and was later convicted of reckless driving, which Bell acknowledges to have been alcohol related. In 1987, Bell called Roger A. Goetz, M.D., Director of the Florida Physicians Recovery Network (PRN), because he could not find employment in Georgia. He told Goetz that he was an alcoholic and agreed to enter the South Miami Hospital's addiction treatment program. This was not the first alcohol treatment program from which Bell had received treatment. Lynn A. Hankes, M.D., evaluated and observed Bell during his treatment at South Miami Hospital. Dr. Hankes also saw Bell in August, 1988, for a reevaluation. When Bell entered South Miami Hospital, he gave an extensive history of alcohol abuse and he acknowledged that he was an alcoholic. Alcoholism is a primary disease characterized by continuous or periodic impaired control, drinking to excess, preoccupation with the drug of alcohol, the use of alcohol despite adverse consequences, and distortions in thinking, most notably, denial. The disease of alcoholism is progressive, causing multi- system impairment. The alcoholic is impaired and cannot predict or control when his drinking is going to be out of control. Denial is an integral part of the illness and a major obstacle to recovery. According to Dr. Hankes, at the time of his evaluations of Bell, Bell suffered from the disease of alcoholism. Despite the treatment and a period of abstinence after his release, Bell's attitude, awareness, and belief system, as manifested by his denial and lack of insight, indicated to Dr. Hankes that Bell would be unable to change his behavior, vis-a-vis alcohol. In his testimony, Dr. Hankes expressed an opinion that Bell is unable to practice with reasonable skill and safety due to his alcoholism and use of alcohol. However, Dr. Hankes' opinion was based only on his personal knowledge from 1988 and on his review of the reports of the other experts and the interviews with Bell. On August 23, 1988, Bell entered into a five-year contract with PRN in which he agreed to abstain from use of alcohol, to have Dr. Hankes as his monitoring physician, to attend AA three times per week, to attend aftercare, to notify PRN in case of a relapse, to contact PRN two times per month, to withdraw from practice on evaluation at the request of PRN, and to be reported to DPR by PRN if he failed to comply with the contract. Bell claims to have unilaterally "cancelled" his contract about two weeks after signing it, but he failed to advise PRN or anyone else about this cancellation. He cancelled the contract because Dr. Goetz did not find him a job which Bell believed Dr. Goetz had agreed to do if he went to treatment and signed a contract. PRN and Bell corresponded in 1989 and 1991 regarding the contract and Bell's alcohol usage. In August, 1991, Bell advised Dr. Goetz and PRN that he had no problem with alcohol. In May, 1991, Bell was arrested after an alcohol-related incident. The events leading up to this arrest involved a drinking binge Bell had with a lady friend who lived in a trailer next to him. Bell believed that the friend had stolen his carton of cigarettes and bottle of vodka while Bell was "asleep." He went to retrieve these items and entered the friend's trailer through the floor air duct. An altercation ensued involving a butcher knife. On August 22, 1991, Bell pled no contest to the charge of trespass in an occupied structure. At the time of the arrest, Bell's trailer was unkempt and strewn with empty liquor bottles. In December, 1991, at the request of DPR, Bell was examined by two physicians, John E. Perchalski, a family practitioner, and Ernest C. Miller, a psychiatrist and expert in addiction medicine. Bell reported to Dr. Perchalski and acknowledged at hearing that his average daily alcohol intake was 14.5 ounces and that his alcohol intake had remained at that level for many years. Dr. Perchalski assessed this information and determined that Bell had a history of chronic excessive alcohol intake. Additionally, Bell had a high corpuscular volume which can be indicative of excessive alcohol intake. According to Dr. Perchalski, while Bell has no physical disability that would prevent him from practicing medicine, his long history of maladaptive behavior and excessive, regular alcohol intake would make it very difficult for Bell to be able to perform in a completely rational and safe way in his care for his patients. Bell told Dr. Miller that he consumed an average of 14.5 ounces of alcohol per day and that he suffered from occasional blackouts and hangovers. Bell's further discussions with Dr. Miller supported Dr. Miller's opinion that Bell has no insight into his problem with dealing with, relating to, and controlling the use of alcohol and that treatment programs have thus far been unsuccessful. Bell's refusal to admit that he is an alcoholic is consistent with the level of Bell's denial regarding his problems with alcohol. The history given by Bell, the physical examination results, and the evaluation and assessment of Dr. Miller support Dr. Miller's diagnosis of chronic alcoholism, alcohol abuse, alcohol dependency, and gamma alcoholism. Dr. Miller's opinion is that in light of the progressive dysfunctional aspects of the disease, Bell will become incapable of sustaining an effective clinical role. As Bell drinks, which is inevitable without treatment, he will not function effectively and his functioning will become less effective as the disease asserts itself on the various aspects of Bell's being. While Dr. Miller acknowledges that Bell may be able to practice currently, the probability is that he will be or will become unable to practice safely until his disease of alcoholism and its disease process are successfully treated. Bell is not currently practicing so no immediate evidence of impaired practice exists. Additionally, Miller indicated that the ingestion of 14.5 ounces of alcohol would take 20 hours to dissipate from Bell's system and any work with patients before the alcohol dissipated would be affected. Bell maintains that he has no problem with alcohol and that at no time has there been any allegation that he treated any patient while under the influence of alcohol.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein: Suspend the medical license of Robert E. Bell, Jr., M.D., for a period of one year or until he appears before the Board of Medicine and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety. If or when the terms of the suspension have been satisfied, place Dr. Bell on probation for five (5) years with terms and conditions to be set by the Board to insure his continued ability to practice with reasonable skill and safety. At a minimum, the demonstration of skill and safety should be supported by satisfactory mental and physical examinations by Board approved experts and by evidence of successful completion of an acceptable alcohol rehabilitation program. DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2204 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(3); 7(4); 8(12); 9(13); 10(16); 12(6); 13(5); 14(6 & 7); 15(7); 18(9 & 10); 20(15); 21(16); 22(18); 23(19); 24(19); 25(20); 26(21); and 27(23). Proposed findings of fact 2, 3, and 17 are unnecessary. Proposed findings of fact 6, 11, and 16 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 19 is unsupported by the credible, competent and substantial evidence in that Goetz's opinions were based on the evaluations and opinions of other experts and have insufficient support to stand alone. Proposed finding of fact 28 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert E. Bell, Jr., M.D. Proposed findings of fact 1a, 1b, 1d, 1e, 1f, 1g, 2a, and 2b are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1c, 1h, and 1i are irrelevant. Proposed finding of fact 2c is unnecessary. COPIES FURNISHED: Larry G. McPherson, Jr. Barbara W. Makant Attorneys at Law Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert E. Bell, Jr., M.D. Route 3, Box 503 Starke, FL 32091 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether cause exists for Petitioner's proposed termination of the Respondent's employment as a school bus driver for the alleged violation of the Drug-Free and Alcohol-Free Workplace policy.
Findings Of Fact At all times material to this case, Respondent Burley Brinkley (Respondent) was employed as a bus driver by the Pinellas County School Board. Respondent's responsibility as an employee of the School Board included transporting students to and from certain public schools in the Pinellas County School District. On April 25, 1995, the Respondent reported for work at the Highpoint Bus Compound at 5:31 a.m. After completing his morning run, Respondent reported to the Walter Pownall Service Center (WPSC) to fuel buses. Respondent arrived at WPSC between 8:00 a.m. and 9:00 a.m. and worked there approximately two hours. On April 25, 1995, Betty Henry, a school bus driver for Pinellas County School Board, observed Respondent at a fuel pump at WPSC between 9:10 a.m. and 9:30 a.m. While she was four or five feet from Respondent, Ms. Henry spoke to Respondent. At that time, Ms. Henry smelled beer on Respondent's breath. Following her encounter with Respondent that morning, Ms. Henry went to her supervisor, and told her that "someone needed to check on" Respondent. Ms. Henry did not indicate to Ms. Reust that Respondent had "beer breath" or had been drinking. Ms. Henry has known Respondent for two or three years and considers him a friend. Often in the past when Ms. Henry and Respondent saw each other, she greeted him with a hug. However, prior to April 25, 1995, Ms. Henry had never smelled "beer breath" coming from Respondent. On April 25, 1995, between 9:00 a.m. and 9:30 a.m., Robert Wilhoite, a school bus driver for Pinellas County School District, observed the Respondent at the WPSC at the fuel pump island. At the time the Respondent was standing near a yellow post talking with another person. Mr. Wilhoite walked past Respondent and the other person and exchanged greetings. At this time Mr. Wilhoite, who was approximately three feet away from the Respondent and the other person, smelled the odor of an alcoholic beverage, "like beer." Mr. Wilhoite could not tell whether the odor was emanating from the Respondent or the other person. However, Mr. Wilhoite did observe that Respondent's face was red. A short time later Mr. Wilhoite reported his observation to Joe Minshall, bus service coordinator at WPSC. On April 25, 1995, Randy Kuester, a school bus driver for the Pinellas County School District, arrived at the fuel dock between 9:00 a.m. and 9:30 a.m. Between 9:30 a.m. and 10:30 a.m., Mr. Kuester went into the coffee room to get a cup of coffee. At that time, the Respondent was the only other person in the coffee room. While in the coffee room, Mr. Kuester detected the smell of alcohol. Although Mr. Kuester was unsure of the source of the alcohol odor, the closer he got to Respondent, the stronger the odor got. Mr. Kuester was in the coffee room for two or three minutes and during that time talked to Respondent briefly. During this period, Mr. Kuester observed that Respondent's eyes appeared glassy and bloodshot. Later that morning while still at the fuel dock, Mr. Kuester observed Respondent boarding the steps to Respondent's bus, and noticed that the Respondent climbed the steps very carefully as though "stepping on ice." Mr. Kuester was with Respondent a total of fifteen to thirty minutes at the service center. Based on Mr. Kuester's observations, Respondent appeared to be intoxicated. Joseph Minshall, the bus service coordinator at WPSC, is responsible for supervising Respondent while he works at the WPSC. On the morning of April 25, 1995, Mr. Minshall saw the Respondent in his office. Mr. Minshall and Respondent spoke briefly to one another. As they spoke, Mr. Minshall detected the smell of alcohol on Respondent's breath. During the conversation, Respondent was approximately two to three feet from Mr. Minshall. Mr. Minshall also observed that Respondent's eyes were glassy. Shortly after Mr. Minshall's personal observation of Respondent on the morning of April 25, 1995, Mr. Wilhoite and Mr. Kuester informed him that earlier that morning they had smelled alcohol or "booze" on the Respondent. After Mr. Kuester and Mr. Wilhoite reported their observations to him, Mr. Minshall spoke to Henry Perry, the vehicle maintenance coordinator at the WPSC. Mr. Minshall informed Mr. Perry that he and two bus drivers detected the smell of alcohol on Respondent. After receiving the above information from Mr. Minshall regarding the alcohol odor on Respondent, Mr. Perry immediately telephoned the transportation office. Mr. Perry attempted to speak to Susan Collins, acting transportation director, Richard Rothberg, acting assistant transportation director, and Al Glenn, transportation supervisor for Area II and Respondent's immediate supervisor. After being informed that all three of these individuals were in a meeting, Mr. Perry left a message about the reason for his call. Later that morning, Mr. Rothberg, who was then supervisor of routing, returned Mr. Perry's telephone call. At that time, Mr. Perry informed Mr. Rothberg of the observations regarding Respondent that were noted by Mr. Minshall, Mr. Kuester, and Mr. Wilhoite. After his conversation with Mr. Perry, about 11:00 a.m., Mr. Rothberg notified Mr. Glenn of the concern regarding Respondent's smelling like alcohol. At approximately 11:10 a.m. on April 25, 1995, Mr. Glenn and Mr. Rothberg drove together to an address which they believed to be the residence of Respondent in an effort to locate Respondent. When they arrived at the apartment, there was no answer. Mr. Glenn and Mr. Rothberg then proceeded to the High- point Bus Compound in an attempt to find Respondent. After arriving at the Highpoint Bus Compound, Mr. Glenn and Mr. Rothberg determined that Respondent was not there. Mr. Glenn then drove to WPSC, where he dropped off Mr. Rothberg. Mr. Glenn then returned to Highpoint Bus Compound to continue his search for Respondent. Between 11:00 and 11:15 a.m. on April 25, 1995, Respondent left the WPSC and drove to his apartment where he changed his shirt. While at his apartment, he used no mouthwash and consumed no cold medication. After leaving his apartment, Respondent drove to the home of a friend, Kay Caldwell, where he ate lunch. During his lunch, Respondent drank ice tea. While at Ms. Caldwell's for lunch, Respondent used mouthwash, but did not consume any cold medication. At approximately 1:05 p.m. on April 25, 1995, after eating lunch, Respondent left Ms. Caldwell's house and began his afternoon route to Lakewood High School. While Respondent was in route to Lakewood High School, he was called on the wireless radio by Ray Wise, the bus service recorder at the Highpoint Bus Compound, who directed him to return to the Highpoint Bus Compound. Respondent indicated that he would be late picking up students at Lakewood High School that afternoon if he returned to the Highpoint Bus Compound. At the time Respondent received the initial radio transmission, he was driving his bus in the vicinity of Ulmerton Road and Highway 19. At some point during the radio transmission, Respondent lost radio contact with Ray Wise, after-which another school bus driver began relaying messages between Mr. Wise or Mr. Glenn and Respondent. The message relayed to Respondent from the other bus driver was that the Respondent was to return to the Highpoint Compound. Although he remained concerned about being late for his afternoon run, when instructed by Mr. Glenn to return to the Highpoint Compound, Respondent complied. Respondent returned to the Highpoint Bus Compound between 1:15 and 1:30 p.m. Upon his arrival, Respondent was told by Ray Wise that Al Glenn wanted to see him. Respondent then proceeded to Mr. Glenn's office where both Mr. Glenn and Henry Perry were present. Al Glenn had previously requested that Mr. Perry sit in the meeting as an observer. When Respondent entered Mr. Glenn's office, Mr. Glenn observed that the Respondent smelled like alcohol and was "red-faced." Mr. Perry also noticed that Respondent "smelled like he had been drinking alcohol." During this meeting in Mr. Glenn's office, Respondent was informed of the reason he was directed to return to the Highpoint Bus Compound. The reason was that several individuals at the WPSC had reported smelling alcohol on the Respondent's breath and/or about his person. Initially, Respondent indicated that Mr. Glenn must be joking. However, during his discussion with Mr. Glenn, Respondent explained that he had been out with Kaye Caldwell and other friends until approximately 10:30 p.m. the night before. Respondent admitted that while out with his friends the night before, he drank between five and six beers, but denied drinking any alcoholic beverages on April 25, 1995. Neither Mr. Wilhoite, Ms. Henry, Mr. Kuester, Mr. Minshall, Mr. Perry nor Mr. Glenn noted or observed any cold symptoms with respect to Respondent. The Respondent did not inform any of the above persons that he had taken any type of cold medication on April 25, 1995. Both Mr. Glenn and Mr. Perry completed an Incident Report Form regarding the Respondent. These forms were completed by Mr. Glenn and Mr. Perry on April 25, 1995, after they met with Respondent, but prior to taking him to the testing center. According to the form, it is "to be completed by each supervisor as a guideline for the determination to order a drug and/or alcohol test for an employee when probable cause exists to test...." One part of the Incident Report Form, entitled Observations of Employee's Physical Condition," contains a list of several specific and observable conditions. Individuals completing the form are to "check any and all" conditions that apply to the employee who is the subject of the Incident Report Form. On the Incident Report Form completed by Mr. Perry, he noted that his observations of the Respondent's physical condition were 1) odor of alcohol on breath or person and 2) glassy eyes. The form completed by Mr. Glenn indicated that his observations of Respondent's condition were that Respondent had slurred speech and the odor of alcohol on breath or person. After observing the Respondent and meeting with him, both Mr. Glenn and Mr. Perry determined that there was reasonable suspicion that Respondent was under the influence of a drug or alcohol while on duty and needed to be tested. Respondent was a safety sensitive employee pursuant to School Board Policy 5.27, and as such was subject to drug screening and confirmation tests upon a determination of reasonable suspicion Mr. Glenn completed and signed a Notification of Testing Form indicating that he had presented the notification of testing to Respondent. The same form was signed by Respondent in the space provided to indicate that "notification has been received and I consent to participate in this testing as required." The date and time indicated next to each signature was April 25, 1995, and 1:45 p.m. Mr. Glenn and Mr. Perry escorted Respondent to the testing site located at Corning Clinical Laboratories (Corning Laboratories), 2150 49th Street North, St. Petersburg, Florida. Mr. Glenn and Mr. Perry waited in the lobby while Respondent underwent a breath alcohol test and a drug urinalysis. On April 25, 1995, Nasser Montavasseli was employed as a supervisor/technician at Corning Laboratories. Eileen Knight was as a technician at Corning Laboratories. Prior to that date, both Mr. Montavasseli and Ms. Knight received certification of completion of training on the Alco- Analyzer 2100 operations and the procedures outlined in 49 CFR Part 40. Ms. Knight began working at Corning Laboratories on February 28, 1995, as a laboratory technician. Ms. Knight was trained as a breath alcohol technician (BAT) on April 4, 1995. Having completed the training, Ms. Knight was certified to perform breath alcohol tests. Nasser Montavasseli has been employed by Corning Laboratories for 8 years and currently serves as a supervisor/technician. Mr. Montavasseli has twenty years of experience working in laboratories performing various kinds of tests. The course he took to qualify as a breath analysis technician included how to put the machine together, how to perform calibration and how to perform the breath alcohol test. One of Mr. Montavasseli responsibilities at Corning Laboratories was to inspect the Alco-Analyzer 2100 every morning to ensure that it was calibrated. He personally performed all calibrations to make sure that it was done correctly. The machine is not used if it is not calibrated. On the morning of April 25, 1995, Mr. Montavasseli inspected the Alco-Analyzer 2100 and determined that it was properly calibrated. At Corning Laboratories, the Alco-Analyzer 2100 is the machine used to conduct the breath alcohol testing. The Alco-Analyzer 2100 meets the requirements of 49 CFR Part 40 of providing quantitative data of alcohol concentration. The Alco-Analyzer 2100 uses a closed system and uses helium as its internal standard carrier gas to continuously purge its sample loop. As a result, the Alco-Analyzer 2100 operates in a manner that is consistent with the intent of conducting an "air blank" in conjunction with the confirmation breath alcohol test. Prior to April 25, 1995, the Alco-Analyzer 2100 was last externally calibrated on February 22, 1995. At that time the calibration of the Alco- Analyzer 2100 was valid. The next external calibration performed after April 25, 1995, was also valid. On April 25, 1995, at approximately 2:32 p.m., Eileen Knight performed the initial screening breath alcohol test on Respondent. In performing the test, Ms. Knight followed the procedures prescribed for performing a breath alcohol analysis on the Alco-Analyzer 2100 and in accordance with 49 CFR Part 40. The screening test result was .217. 33. Ms. Knight informed Respondent that the initial screening test was greater than 0.020 and that he needed to complete a confirmation test. At approximately 2:52 p.m., Ms. Knight performed the confirmation breath alcohol test according to the prescribed procedures. The confirmation test result was .222. After Ms. Knight concluded the breath alcohol testing, she advised Respondent to that he needed to provide a urine sample. He left the testing area and went to the men's room on two separate occasions. After several minutes, Respondent returned to the testing area with a urine sample. Ms. Knight did not accompany Respondent to the men's room and did not personally observe where the sample came from. Eventually, the urine sample provided by Respondent tested negative for drugs. Ms. Knight gave Respondent a copy of the two breath alcohol test results and informed him that he was over the legal limit. A copy of the test results was faxed to Max Loden, Supervisor of Supporting Personnel and Coordinator of the Drug-Free and Alcohol-Free Program of the Pinellas County School Board. Respondent informed Mr. Glenn and Mr. Perry that he failed the breath alcohol test and showed them the test results. After leaving the Corning Laboratories, Respondent, Mr. Glenn, and Mr. Perry went to Richard Rothberg's office. When Respondent entered Mr. Rothberg's office, the smell of alcohol was prevalent. Mr. Rothberg determined the odor of alcohol was coming from Respondent. Respondent provided Mr. Rothberg a copy of the breath alcohol test results. As Respondent was leaving Mr. Rothberg's office, he stated that he was sorry to have put everyone through this and that he had "really screwed up." On March 14, 1995, the Pinellas County School Board adopted School Board Policy 6GX52 -5.27, entitled Drug-Free and Alcohol-Free Workplace. That policy states that Title 49 of the Code of Federal Regulations (CFR) Part 40 requires all employees of the Pinellas County School District as of January 1, 1995, who are required to hold a commercial driver's license and who perform safety sensitive functions shall be subject to drug urinalysis testing and breath alcohol testing, including "reasonable suspicion testing." Reasonable suspicion testing occurs when a covered employee's conduct or appearance is directly observed as indicative of being under the influence of a drug or alcohol during on-duty time. Covered employees include persons who operate vehicles designed to transport more than 15 persons. Respondent, as a school bus driver, is a covered employee. On January 1995, Respondent received educational materials explaining the requirements of the Drug-Free Workplace Act and the Pinellas County School Board's policies and procedures with respect to meeting these requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order terminating the employment of Burley Brinkley. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2722 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted and incorporated. Accepted but subordinate and unnecessary. 3-4. Accepted and incorporated. 5-8. Accepted. 9-18. Accepted and incorporated to the extent not subordinate or unnecessary. 19. Accepted. 20-44. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary, except last sentence rejected as not supported by competent and substantial evidence. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Last sentence rejected not supported by competent and substantial evidence. Rejected as argument. 7-10. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. Rejected as contrary to facts found and the greater weight of the evidence. 13-17. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary except the fifth sentence is rejected as not supported by competent and substantial evidence. Accepted and incorporated to the extent not subordinate or unnecessary except the last sentence is rejected as argument. Accepted but subordinate to result reached. Rejected as argument. 22-23. Accepted. 24-31. Accepted and incorporated to extent not subordinate or unnecessary. 32-33. Subordinate to result reached. 34-37. Accepted and incorporated to the extent not subordinate or unnecessary. Subordinate to result reached. Accepted and incorporated to the extent not subordinate or unnecessary; last sentence rejected as not supported by competent and substantial evidence. 40-41. Accepted and incorporated. Rejected as not supported by competent and substantial evidence. Subordinate to result reached. Rejected as contrary to facts found and the greater weight of the evidence. Accepted, except second sentence is rejected as subordinate to result reached. Accepted and incorporated to the extent notsubordinate or unnecessary, except reference to "screening" test rejected as not supported by facts and weight of evidence, and reference to violation of rules is rejected as argument and not supported by competent and substantial evidence. Accepted and incorporated except last sentence rejected as argument. 48-49. Subordinate to result reached. 50-51. Rejected as contrary to the facts and weight of evidence. 52. Accepted. 53-55. Subordinate to result reached. Rejected as argument. Rejected as contrary to facts and weight of evidence. Accepted and incorporated to the extent not subordinate or unnecessary; last two sentences rejected as argument and contrary to facts and weight of evidence. 59-71. Subordinate to result reached. 72-73. Rejected as contrary to facts and weight of evidence. Rejected as argument. Rejected as contrary to facts and weight of evidence. 76-77. Rejected as not supported by competent and substantial evidence. 78. Rejected as contrary to facts; last sentence rejected as argument. 79-81. Subordinate to result reached. Rejected as argument and contrary to facts as to reference to Mr. Motavasseli; rejected as subordinate to result reached as to reference to Ms. Knight. Subordinate to result reached. Accepted as to first sentence; remainder ofparagraph rejected as argument or not supported by competent and substantial evidence. 85-87. Accepted and incorporated to the extent not subordinate or unnecessary. 88-93. Rejected as argument. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2940 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue, Suite C Clearwater, Florida 34616 Dr. J. Howard Hinesley School Board of Pinellas County 301 Fourth Street SW Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida Barbara J. Staros General Counsel 32399-0400 The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner had just cause to terminate Respondent's employment for being under the influence of alcohol while on duty.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent as a facilities maintenance technician at Pathways Elementary School. Respondent's job required him to maintain the school's heating and air conditioning equipment and all electrical equipment. Respondent's position was safety-sensitive because his work occasionally exposed him to as much as 220 volts of electricity. Respondent was aware of Petitioner's personnel policy regarding illegal drug or alcohol abuse. This policy is set forth in policy No. 415, which states as follows in relevant part: It is the intention of the School Board of Volusia County to maintain a drug-free workplace and school environment for its employees and students . . . . An employee of the school board shall not manufacture, distribute, dispense, possess or use alcoholic beverages on school grounds, on school board property, or at school board activities (on or off school board property) at which students are present . . . . * * * Disciplinary action, including, but not limited to termination of employment and referral for prosecution, if appropriate will be taken against any employee who violates this policy. . . . Procedures shall be developed to effectuate the intent of this policy. The procedures shall include provisions for drug testing applicants for employment and employees. Employee testing may be part of a routinely scheduled fitness-for-duty medical examination or based upon reasonable suspicion that an employee is violating the terms of this policy. . . . Respondent signed a document on October 12, 1998, acknowledging his receipt of policy No. 415. Respondent admits he had a responsibility to make sure that he was not under the influence of alcohol at work. On July 20, 2000, the school's secretary was making photo identification badges for school staff members. The secretary radioed Respondent and requested that he come to the office to have his picture taken. During this conversation, the secretary noticed that Respondent's speech was slurred. Because Respondent's voice did not sound right, the secretary asked the school's resource teacher to be present when Respondent arrived. In order to take the picture, the secretary had to place the camera fairly close to Respondent's face. The secretary smelled alcohol on Respondent's breath. She also observed that Respondent was sweating profusely and that his complexion was very pale. Upon Respondent's arrival at the office, the resource teacher smelled a strong odor of alcohol in the room. The resource teacher noticed Respondent's slurred speech. She also observed that Respondent appeared ill because he was pale and sweating profusely. The school secretary called the assistant principal to tell him that she had observed Respondent in an intoxicated state. The assistant principal, in turn, telephoned Respondent's immediate supervisor regarding Respondent's observable intoxication. The assistant principal made this call around 1:00 p.m. Subsequently, the assistant principal observed two bottles of vodka and several bottles of mouthwash in Respondent's vehicle. The vehicle was parked in the school's parking lot. Respondent's immediate supervisor first called Petitioner's professional standards investigator who agreed to meet the supervisor at Pathways Elementary School. The supervisor and the investigator wanted to observe Respondent's behavior firsthand. Arriving at the school, the supervisor noted that Respondent's speech was slurred. Upon her subsequent arrival, the investigator noted Respondent's disheveled clothing, his confused conversation, and the smell of alcohol about his person. Based on her training and experience and her observations of Respondent, the investigator concluded that Respondent was under the influence of alcohol. Respondent freely agreed to submit to a sobriety test. The supervisor transported Respondent to Deland, Florida, for a breath alcohol test. They arrived at the testing center about 3:00 p.m. After taking two breath alcohol tests, Respondent signed a document setting forth the numerical results. As a result of Respondent's intoxication on the job, and in light of Petitioner's drug-free workplace policy, Petitioner gave Respondent another work assignment pending completion of an investigation. After the investigation was complete, Petitioner voted to terminate Respondent's employment. Petitioner's decision was consistent with its policy of terminating employees upon their first violation of the prohibition against using alcoholic beverages on school property. Respondent presented testimony that he is now enrolled in an intensive alcohol-treatment program. He admits that he "has a problem with alcohol." Respondent's testimony that he was not intoxicated from using alcohol while at work on July 20, 2000, is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding just cause for terminating Respondent's employment. DONE AND ENTERED this 9th day of April, 2001, 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 (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 9th day of April, 2001.
The Issue The issue to be determined is whether Petitioner, St. Lucie County School Board (Petitioner or the School Board), has just cause to terminate the employment of Respondent, Renya Jones (Respondent or Ms. Jones).
Findings Of Fact Respondent, Renya Jones, is employed by the School Board of St. Lucie County, Florida. She has been employed by the School Board since the 2004-2005 school year, most recently as a music teacher at Village Green Environmental Studies School. Respondent has a professional services contract pursuant to section 1012.33, Florida Statutes. As a classroom teacher, she is covered by the Collective Bargaining Agreement between the School Board and the Classroom Teachers Association. When Respondent was hired by the School Board, she participated in an orientation process whereby she received training on a variety of School Board policies, including the Code of Ethics/Professional Competency and the Drug-Free Workplace Policy. On July 28, 2004, she signed a New Employee Orientation Verification of Training form indicating that she had received training in the areas listed (including those named above), and that she had received a copy of the St. Lucie County School Board New Employee Handbook. Respondent also submitted to pre-employment drug screening on July 30, 2004. On May 8, 2017, Respondent was a music teacher at Village Green Environmental Studies School, also referred to as Village Green Elementary (Village Green). The contractual hours for teachers at Village Green during the 2016-2017 school year were from 7:45 a.m. to 3:20 p.m. There were clubs that met in the morning before classes began at approximately 8:30 a.m., and those teachers working with clubs were required to report earlier so that they were present when the clubs were to start. Respondent was the teacher working with the chorus club, which would require her to be present early. When teachers arrive at school, they normally sign in at the front desk. Cynthia Garcia is the executive secretary to the principal at Village Green. During the 2016-2017 school year, the principal was Ucola Barrett-Baxter. Ms. Garcia typically arrives at school before anyone else and sits at the front desk as teachers sign in, as opposed to sitting in her office, adjacent to Ms. Barrett-Baxter’s. On May 8, 2017, Ms. Garcia was present when Respondent signed in at sometime between 7:30 and 7:50 a.m. Ms. Garcia asked Respondent if she was alright, because her appearance was different than normal. While Respondent was usually dressed professionally and wore make-up, that morning she was wearing no make-up and her wig was not on straight. Respondent replied that she was running a little behind and was a little messed up, and still needed to put on her make-up. Ms. Garcia testified that Respondent was different than when she usually signed in, and described her as a bit “giddy,” flailing her arms and laughing. Actavis McQueen is a fourth-grade teacher at Village Green. As she approached her classroom on May 8, 2017, Respondent called to her in the hallway a little after 8:00 a.m. Ms. McQueen described Respondent as giggly and loud, and when Ms. McQueen approached Respondent, she noticed that Respondent was not properly dressed for work. For example, her wig was twisted, she was not wearing make-up as she usually does, her stomach was showing under the tank top she was wearing, and she was wearing flip flops or slides instead of shoes. Most importantly, Ms. McQueen could smell the strong odor of alcohol. Respondent was loud and laughing, saying that the children would not recognize her without her make-up. Students were starting to come in for practice on the school play, and Ms. McQueen did not want the students to see Respondent in her current condition, so Ms. McQueen told students that there would not be a rehearsal that day. She told Respondent to go to her office in the back of her classroom and fix herself up. Ms. McQueen was shocked by Respondent’s appearance, and after telling Respondent to go to her office, Ms. McQueen headed toward the school office. On her way, she ran into Verna Brown at the cafeteria. The chorus room that served as Respondent’s classroom is adjacent to or behind the cafeteria, and can be entered from the cafeteria area by way of the stage. Verna Brown2/ is a health paraprofessional employed at Village Green. On this particular morning, she was on duty in the cafeteria for those students eating breakfast. Ms. McQueen approached her and told Verna Brown that she had spoken to Respondent, and it appeared that Respondent had been drinking. Ms. McQueen reported that Respondent smelled of alcohol and asked Verna Brown to go check on Respondent, because Ms. McQueen was uncertain what to do. Verna Brown went to Respondent’s class, and when she arrived, two other staff members were in Respondent’s room, so she closed the door and said she would come back, which she did once the others left the room. Like Ms. McQueen, Verna Brown could smell alcohol and observed that Respondent’s eyes were swollen and red, her hair was “wild,” and her stomach was showing. Respondent indicated that she had been to a party. Verna Brown was concerned for Respondent’s well-being and told Respondent she needed to get herself together. While she was talking to Respondent, students were trying to come into the room through the stage, and were asking Respondent questions about rehearsal. Respondent told them there would be no rehearsal that morning and to come back at 3:00 p.m. Verna Brown was trying to keep the students from seeing Respondent because she did not want them to see her in that condition. Verna Brown asked Respondent if Respondent needed her to call someone to come get her, but Respondent indicated that she had a rental car, and left out the back door.3/ Despite having signed in upon her arrival at Village Green, Respondent did not sign out when she left. Verna Brown was not authorized to arrange for a substitute for Respondent, but told her she would speak with Ms. Garcia about one. No substitute was ever procured. Verna Brown returned to the cafeteria and confirmed to Ms. McQueen that she also smelled alcohol on Respondent. Ms. McQueen went to the office accompanied by Sherri Brown, the media specialist, in search of the principal, Ucola Barrett- Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett-Baxter was at student drop-off duty, and Ms. McQueen told Ms. Garcia that she needed to speak to her about a staff member. Ms. Garcia asked if it was Respondent, and went to the drop-off area to advise Ms. Barrett-Baxter of Ms. McQueen’s need to see her. Ms. Garcia believed that Ms. McQueen was very upset about Respondent and took over Ms. Baxter-Barrett’s duties at the student drop-off area so that Ms. Barrett-Baxter could speak with Ms. McQueen. Ms. Barrett-Baxter found Ms. McQueen at the media center, where Ms. McQueen advised her that she had seen Respondent and that Respondent appeared to be drunk and smelled like alcohol. Ms. Barrett-Baxter asked where Respondent could be located, and was told that she had already left the campus. Ms. Barrett-Baxter immediately called Aaron Clements, the director of Employee Relations, and explained the situation. Upon learning that Ms. Barrett-Baxter had not seen Respondent personally and that Respondent was no longer at the school, Mr. Clements advised Ms. Barrett-Baxter that at that point, there was nothing that could be done. As noted above, Sherri Brown is a media specialist at Village Green. At Ms. McQueen’s request, she accompanied Ms. McQueen to the office to find Ms. Barrett-Baxter. She and Verna Brown were both concerned about whether Respondent made it home safely, and she tried to call Respondent. Respondent did not answer her phone when Sherri Brown called, and she and Verna Brown received permission from Ms. Barrett-Baxter to leave campus and drive by Respondent’s home to make sure she had arrived. Once they saw the rental car Respondent had been driving parked at her home, they returned to campus. Respondent returned Sherri Brown’s call at about 10:17 a.m., and stated that she had left early due to an unidentified emergency. Sherri Brown told Respondent to contact Ms. Barrett-Baxter before she came back to work, and not to come back to the school. Sherri Brown relayed the telephone conversation with Respondent to her media assistant, Mary Bergerman, and told Ms. Bergerman that she needed to go to the office and report the contact with Respondent. Ms. Bergerman had heard Sherri Brown’s side of the telephone conversation and confirmed that Sherri Brown had told Respondent not to return to the school, as opposed to advising her that she needed to come back. When Sherri Brown arrived at the office, Ms. Barrett- Baxter was in a meeting with a parent. She stepped into Ms. Garcia’s office to relay the message that Respondent was going to contact the principal, and while she was there, Respondent entered the office behind her. Sherri Brown said hello to Respondent and returned to the library. She covered Respondent’s classes for the day, and she and a co-worker covered the rehearsal that afternoon. While Ms. Barrett-Baxter was in the parent conference, at approximately 10:24 a.m., she received a text from a number she did not recognize. She responded, “I’m in a meeting. Who’s calling,” to which Respondent responded, “Jones I’m there in 5 minutes.” Respondent arrived in the office while Ms. Barrett- Baxter was still in the parent conference, so she went in Ms. Garcia’s office to wait. After somewhere between ten and 30 minutes, the parent conference concluded, and Respondent went in Ms. Barrett-Baxter’s office. Ms. Barrett-Baxter testified that Respondent is normally well put together in terms of make-up and hair, but when she came in the office she looked disheveled, and noticeably different from her normal appearance. She could detect the smell of alcohol and her eyes were puffy and red. Respondent told her she had gone home to clean up a little bit, and Ms. Barrett-Baxter replied that it did not work, because she could smell the alcohol from across the desk. She told Respondent that she would have to contact the district office, and left Respondent in her office while she went to Ms. Garcia’s office to call Mr. Clements. Sometime that day, she also completed a Human Resources Reporting Form and emailed it to Mr. Clements. The Reporting Form summarized the reports she had received regarding Respondent’s apparent intoxication and what she had observed when meeting with Respondent before calling Mr. Clements. Reasonable suspicion existed to warrant testing for drugs and alcohol based upon Respondent’s appearance, behavior, and the smell of alcohol emanating from her person and noted by nearly every person with whom she came in contact. Mr. Clements advised that he would send someone from security to transport Respondent for testing. Ms. Barrett-Baxter had Respondent go sit in the conference room in the office area to wait for transport, and resumed her other duties. Ken Rodriguez is a security officer for the St. Lucie County School District (School District) and a retired police officer from New York City, and he has worked at the School District for the last nine years. He arrived at Village Green between 11:00 and 11:30 a.m. Once he arrived, he went to the conference room where Respondent was waiting. He identified himself to Respondent and explained that he would be transporting her to the district office where she would meet with Aaron Clements, who would explain to her the procedures that were going to take place. Mr. Rodriguez asked Respondent about any personal affects she might have, and then asked someone in the office to retrieve her purse for her. Upon receiving the purse, Respondent placed it on the table and started looking for something. From his vantage point standing by the table, he could see a large ziplock bag of capsules in her purse, as well as a box of box cutters. He did not search her purse, but asked her about the bag of capsules, and Respondent told Mr. Rodriguez that they were vitamins. Mr. Rodriguez took her explanation at face value, but advised her that he was going to hold onto both the bag of capsules and the box cutters as a safety measure while she was transported, and return them to her when they were finished. Mr. Rodriguez and Respondent arrived at the School District offices sometime after noon. Mr. Rodriguez directed Respondent to sit in the reception area while he went in to see Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had taken possession of the capsules and the box cutter as a safety measure and gave them to Mr. Clements, and then brought Respondent in to meet with him. Mr. Rodriguez did not sit in on the meeting between Mr. Clements and Respondent. Mr. Clements advised Respondent that she was going to be taken to the lab for drug/alcohol testing, and now would be the time for her to tell him if the pills were something illegal or would cause her to have a negative result from the test, and she again stated that they were vitamins. Mr. Clements reiterated that they were sending her for drug and alcohol testing, and she indicated that she understood. She was provided with the standard forms related to testing that are used for all employees being tested, and she signed them. Respondent did not ask Mr. Clements any questions, and appeared to understand what she was told. Mr. Clements is not the medical resource officer for St. Lucie County Schools. The medical resource officer is identified on the form for drug testing, along with his telephone number. No evidence was presented to indicate that Respondent asked to speak to the medical resource officer or was prohibited from doing so. The School District typically tests for both drugs and alcohol on a reasonable suspicion test. While there may be reasonable suspicion that someone is under the influence of either drugs or alcohol, without the testing, it is difficult to know for sure the source of the influence. After meeting with Mr. Clements, Respondent was provided with a St. Lucie Public Schools Drug & Alcohol Testing notification form that identifies the time Respondent left the School District and instructs her to report to the identified testing location no later than 30 minutes from receiving the form. Respondent and Mr. Clements both signed this form at 1:10 p.m. Mr. Rodriguez drove Respondent to Absolute Testing/Consulting (Absolute Testing), where he provided the paperwork to a technician, Gina Dinello, who took her back for testing while he waited in the reception area. Absolute Testing provides alcohol testing to St. Lucie County using a breathalyzer, and provides drug testing using a urine sample. Ms. Dinello holds the appropriate certifications to conduct the breathalyzer test and to collect the urine sample for the drug test. The sample for the urine test is obtained on premises and then transported to a laboratory for processing. The breathalyzer that Absolute Testing uses is DOT- certified, and is calibrated in accordance with DOT standards. Ms. Dinello took Respondent into the back room at Absolute Testing, and explained how the procedure for the breathalyzer works. She showed Respondent the documents related to the test, and Respondent signed them. With breathalyzer tests, where there is a positive test result, it is standard procedure to wait 15 minutes and then have the person being tested blow into the breathalyzer a second time. The theory is that, by waiting the 15 minutes, any extraneous influence, such as mouthwash, that might have affected the first test would have dissipated by the second test. Respondent cooperated with the first administration of the breathalyzer test, which resulted in a reading of .186 at 1:40 p.m. Once she learned the results of the first test, however, she did not want to wait for the second administration. Ms. Dinello asked Mr. Rodriguez to help explain the process to her, and he did so, telling her that a second test was a standard part of the process. Both Mr. Rodriguez and Ms. Dinello explained to Respondent that she had a right to refuse the test, but her refusal would be documented. Respondent then consented to the second administration, which resulted in a reading of .191 at 1:56 p.m. After the breathalyzer test was complete, Ms. Dinello explained that Respondent needed to provide a urine sample for the drug test. Respondent declined to do so, saying she had already blown the breathalyzer test, so there was no point to proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello explained again that if she chose to refuse the test, the refusal would be documented and reported to the School District. Respondent refused to submit, and Ms. Dinello submitted paperwork to that effect. Mr. Rodriguez was not informed of the results of the breathalyzer test. When the testing was finished, he took Respondent to her home, returned her belongings to her, and she walked into her home. He did not allow her to drive her car home, which remained at Village Green, because he believed that she could still be under the influence of alcohol. He testified that when he transported her to the testing facility, he could smell the heavy odor of alcohol on her, and he did not believe she was physically capable of driving home. Respondent was paid a salary for May 8, 2017, and had not requested annual or sick leave. She was on duty when she arrived at the school that morning, and she remained on duty, despite the fact that she chose to go home without signing out for the day. On May 9, 2017, Respondent received a letter by hand- delivery notifying her that she was under investigation for having a breath alcohol level of .186 and .191 while at her work location, and for refusing the drug test. She was placed on temporary duty assignment. While on temporary duty, Respondent received all of her pay and benefits. Moreover, Respondent was paid for the entire term of her contract for the 2016-2017 school year, from August 12, 2016, through June 30, 2017. On May 10, 2017, Mr. Clements provided to Respondent a Meeting Notice, scheduling a meeting regarding the charges that she refused the drug test and had unacceptable breath alcohol test results. Respondent acknowledged receiving the notice in writing and attended the meeting with her union representative. The purpose of the meeting was to provide Respondent with “due process” and give her the opportunity to provide any information she might choose regarding the allegations against her. On May 15, 2017, Respondent received written notice of a second meeting, to be held on May 22, 2017. The purpose of this meeting was to provide Respondent the results of the School District’s investigation. Respondent and her representative attended this meeting as well. On May 22, 2017, Rafaal Sanchez, Jr., Mr. Clements’ supervisor and executive director of Human Resources for the School District, recommended to Superintendent Gent that Respondent’s employment be terminated. Superintendent Gent accepted Mr. Sanchez’s recommendation and by letter dated May 22, 2017, notified Respondent of his intent to recommend to the School Board that her employment be terminated, as well as the procedure available to her to contest that recommendation. The letter also advised Respondent that if she chose to request a hearing, the superintendent would recommend that she be suspended without pay pending the outcome of the hearing. That same day, counsel for Respondent wrote to Superintendent Gent regarding the allegations against Respondent. He advised the superintendent that Respondent was relieved of duty on May 8, 2017, and was later called and told to return to Village Green, and that she voluntarily complied with this directive. He also contended that she was not presented with any drug testing policies and she had no knowledge of the consequences of failing to submit to the drug test at that time. As a result of this letter, Mr. Clements opened a second investigation to see whether anyone had told Respondent to return to school. At that time, he gathered statements from staff members, who had seen Respondent at school on the morning of May 8, 2017, and ultimately closed the investigation as unsubstantiated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the School Board finding that Respondent’s conduct as identified in the Findings of Fact constitute just cause for terminating her position as a teacher. DONE AND ENTERED this 22nd day of February, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 22nd day of February, 2018.
The Issue The issues in this case are whether Respondent violated Subsection 464.018(1)(j), Florida Statutes (2006),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Penansky has been licensed as an A.R.N.P. in Florida, having been issued license number ARNP1302962 in 1982. From 1993 through August 2006, Ms. Penansky was employed as an A.R.N.P. at the Dover Clinic of Suncoast Community Health Centers, Inc. (Suncoast). She was the primary certified nurse midwife at the facility and saw the obstetric/gynecology patients. During 2004, Carmen Laguerra, who was the office manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s breath at work and observed Ms. Penansky’s hands trembling. A couple of times, Ms. Laguerra observed that Ms. Penansky was having trouble walking at work and would put her hand on the walls to support herself. Ms. Penansky came to work at times with bruises on her arms and face. In the fall of 2004, the coordinator of medical records at the Dover Clinic asked Ms. Laguerra to observe Ms. Penansky in the medical records room. Ms. Laguerra observed Ms. Penansky murmuring to herself. Prior to 2004, Ms. Penansky had demonstrated a quiet demeanor. In 2004, Ms. Laguerra observed a change in Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and opinionated. In 2004, Yolanda Guzman, the supervisor of nurses at the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s breath and body while at work. Ms. Guzman also noticed that Ms. Penansky’s hands were trembling and that Ms. Penansky’s speech was not clear. Ms. Guzman observed bruises on Ms. Penansky’s arms and face. Ms. Guzman reported her observations to Ms. Laguerra and to Subhakrarao Medidi, M.D., who was the associate medical director at the Dover Clinic. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one time in 2004. On multiple occasions, he observed Ms. Penansky’s hands shaking. After receiving patient complaints, Dr. Medidi confronted Ms. Penansky about the smell of alcohol. Ms. Penansky denied the use of alcohol, claiming that the smell resulted from the use of mouthwash. Dr. Medidi also recalled one time, in particular, when Ms. Penansky came to work with bruises. George Hammond, the chief administrative officer at Suncoast, met with Ms. Penansky to discuss the observations of employees at the Dover Clinic. Ms. Penansky denied the use of alcohol at work. He directed Ms. Penansky to get a blood- alcohol test. She did as directed, and the result of the test was negative. Mr. Hammond directed Ms. Penansky to contact the Intervention Project for Nurses (IPN), which is the impaired practitioner program for the Board of Nursing. IPN is an independent program that monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department. Ms. Penansky contacted IPN and was referred to Martha E. Brown, M.D., for an evaluation. As part of the evaluation, Ms. Penansky underwent a drug test, which was negative for drugs and alcohol, but was considered dilute. When a drug test is dilute, it usually means that the individual tested consumed a significant amount of fluids prior to the test. Ms. Penansky advised Dr. Brown that she averaged drinking almost every day, but had stopped drinking about ten days prior to the evaluation. As a result of abstinence, Ms. Penansky told Dr. Brown that she felt better and was able to stay up later and get up earlier. Ms. Penansky advised Dr. Brown that her brother had a problem with alcohol and had not had a drink in 20 years. In a report dated November 8, 2004, Dr. Brown opined that there was suspicion for Ms. Penansky having a substance abuse problem. She recommended that Ms. Penansky enter into an abuse contract with IPN for two years with a one-year review. Ms. Penansky entered into an IPN contract in December 2004. Her participation in the program included random drug screening, joining a support group, attending Alcoholics Anonymous meetings, and being evaluated by her supervisor. During her participation in the program, she was tested for alcohol 17 times, and each time the test was negative. Ms. Penansky completed the program in one year. While Ms. Penansky was participating in the IPN program, employees at Suncoast observed positive changes in her. Ms. Penansky’s appearance and mood improved, and the tremors in her hands disappeared. On July 31, 2006, Ms. Penansky was involved in an automobile accident. As a result of the accident, she sustained some bruises to her body, which were visible to employees at the Dover Clinic. In August 2006, while Ms. Penansky was at work, Ms. Guzman again smelled alcohol on Ms. Penansky’s breath and noticed Ms. Penansky’s hands were shaky, and her speech was not normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while Ms. Penansky was at work during the same time period. In August 2006, Dr. Medidi noticed that Ms. Penansky’s hands were shaking again. Ms. Penansky denies that she had alcohol on her breath at work in either 2004 or 2006. However, both Ms. Guzman and Ms. Laguerra testified credibly that they smelled alcohol on Ms. Penansky’s breath and that the smell was different from the smell that would come from the use of mouthwash, which has a medicinal smell. Additionally, Ms. Penansky testified that in 2006 she was not using the mouthwash prior to going to work because she felt that in 2004 her fellow employees had mistaken the smell of the mouthwash for the smell of alcohol. Thus, the smell could not have come from mouthwash in 2006 because Ms. Penansky was not using it. Ms. Penansky commenced a change in her eating habits in which she had lost 50 pounds. In 2006, she was still losing weight, but not at a very rapid pace. At the final hearing, there were some allegations that the odor that Ms. Guzman and Ms. Laguerra smelled was a result of a release of ketones due to Ms. Penansky’s diet. However, the smell caused by ketones is a “sweet smell,” which is different from the smell of alcohol. Another allegation at the final hearing was that the smell could be a result of Ms. Penansky’s periodontal disease, but the smell that would result from a periodontal disease would be different from the smell of alcohol. Neither Ms. Guzman nor Ms. Laguerra had any conflict with Ms. Penansky that would cause them to make false allegations against her. In fact, both Ms. Guzman and Ms. Laguerra were highly complementary of Ms. Penansky’s work, aside from the use of alcohol and the hand tremors. The evidence is clear and convincing that in 2004 and in 2006, Ms. Penansky came to work at the Dover Clinic with alcohol on her breath while she was practicing as the primary midwife at the facility. In August 2006, the observations of Ms. Guzman and Ms. Laguerra were made known to the management at Suncoast. Suncoast elected not to require Ms. Penansky to undergo a drug screening to determine whether she had ingested alcohol. On August 3, 2006, Ms. Penansky was terminated from her position with Suncoast for her use of alcohol and directed to contact IPN. After Ms. Penansky was terminated from Suncoast, she went to work for a private physician. Her employment was uneventful, and she continued in his employ until the Department suspended her license by emergency order. Ms. Penansky did not contact IPN, and Suncoast filed a complaint with the Department. An investigation ensued. The Department required Ms. Penansky to be evaluated. In January 2007, Ms. Penansky was again evaluated by Dr. Brown. Ms. Penansky advised Dr. Brown that she had returned to drinking occasionally after she completed her program with IPN, but denied drinking on the job or drinking in large amounts. A drug screen was performed on Ms. Penansky, and the result was negative. Dr. Brown diagnosed Ms. Penansky with alcohol abuse, "rule out alcohol dependency." Credibly, Dr. Brown opined that Ms. Penansky appeared “to be either in denial or minimizing the impact alcohol has had on her life and the problems she has had at work with others smelling alcohol on her breathe [sic] multiple time [sic].” It was Dr. Brown’s opinion that in order for Ms. Penansky to be able to practice with reasonable safety and skill that she should minimally complete an intensive outpatient program and have monitoring through IPN. Ms. Penansky was also evaluated by Raymond A. Johnson, M.D., who came to the conclusion that Ms. Penansky did not have an addiction and alcohol problem. He felt that she was safe to practice nursing without treatment or monitoring by IPN. In his report dated January 22, 2007, he stated that Ms. Penansky used mouthwash multiple times a day because of periodontal disease, and he concluded that the use of the mouthwash was the reason for the smell of alcohol on her breath. His argument loses plausibility based on Ms. Penansky’s testimony at final hearing that she was not using the mouthwash in 2006 prior to going to work so that people would not mistake the smell of mouthwash for the smell of alcohol. Dr. Johnson had a psychological evaluation performed on Ms. Penansky by Nicholas Anthony, Ph.D. In his report, Dr. Anthony stated that Ms. Penansky told him that her brother was no longer allowed to use alcohol because he had been diagnosed with diabetes. Based on Ms. Penansky’s representations, he concluded that she did not have a family history for addiction. Ms. Penansky’s account of her brother’s abstinence differed when she related her family history to Dr. Brown. She did not tell Dr. Brown that her brother had stopped drinking because he was a diabetic. At the final hearing, she did not mention that her brother refrained from drinking because of diabetes. At the final hearing, Ms. Penansky testified: Well, what he [her brother] told me, in fact, what he told the whole family was, at one point he said he just felt like he was drinking too much and decided to stop. That was it. He never said anything about being an alcoholic. He never said he was diagnosed by a physician. He made a personal choice. Dr. Anthony tested Ms. Penansky using the Minnesota Multiphasic Personality Inventory-II (MMPI), The Rorschach, and the Million Clinical Multiaxial Inventory-III (MCMI). The Rorschach, otherwise known as the “ink blot” test, is not commonly used in the field of addiction psychiatry to look at substance abuse diagnoses. In the field of psychiatry, alcohol abuse and alcohol dependency are considered Axis I, or primary, diagnoses. The MMPI and the MCMI are more accurate and effective in diagnosing other Axis I disorders such as psychosis than in diagnosing substance abuse or dependency. This is due to the fact that individuals with substance abuse or dependency problems often attempt to present themselves in the best possible light when answering the test questions. The test results themselves for these individuals are often invalid because the test either misses the substance abuse or dependency diagnosis or identifies the individual’s denial or minimization tendencies. The Adult Clinical Interpretive Report for Ms. Penansky’s MMPI test states: [Ms. Penansky] approached the test items in a somewhat defensive manner. Her overcautious approach to the items suggests that she is concerned with making a good impression and is reluctant to disclose much about her personal adjustment. Interpretations of the clinical and content scale profiles should allow for her possible minimization of problems. The Adult Clinical Interpretive Report for Ms. Penansky’s MCMI test states: Unless this patient is a well-functioning adult who is facing minor life stressors, her responses suggest an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, the patient may protectively deny any unseemly traits or symptoms. This probably reflects either a broad-based concern about being appraised unfavorably by others or an active suspicion of the arcane motives of psychological inquiry. Her MCMI-II scores have been adjusted to compensate for her defensiveness, but the overall profile may remain partially distorted. An interpretation based on standard interpretive procedures is likely to be reasonably valid but may fail to represent certain features of either the patient’s disorders or her character. The BR scores reported for this individual have been modified to account for the defensiveness suggested by the prominence of Personality Patterns Scale 7 (Compulsive). Dr. Anthony interpreted the results of Ms. Penansky’s test scores as being negative for a diagnosis of alcohol abuse or dependency. Dr. Johnson relied on Dr. Anthony’s interpretation of test results in forming his opinion that Ms. Penansky was negative for a diagnosis of alcohol abuse or dependency. Dr. Brown reviewed the Adult Clinical Interpretive Reports of the MMPI and the MCMI performed on Ms. Penansky by Dr. Anthony and opined that the tests are bordering on invalid and that, given Ms. Penansky’s defensiveness on the test in answering questions, she would not use the test results as a total basis for concluding that Ms. Penansky did not have a problem with alcohol. Given Dr. Johnson’s reliance on the use of mouthwash as the explanation for the smell on alcohol on Ms. Penansky’s breath, the lack of credibility in Ms. Penansky’s account of her family history, and the defensive answers given by Ms. Penansky on her psychological testing, Dr. Johnson’s opinion concerning Ms. Penansky’s alcohol abuse lacks credibility. Current and former employees of Suncoast highly regarded Ms. Penansky’s work. Her evaluations were very good. She worked very hard, and the quality of her work was excellent. However, alcohol abuse can affect a nurse’s judgment and ability to practice with reasonable skill and safety. Alcohol may slow concentration and thinking and thereby cause a nurse to miss a diagnosis or symptom while treating a patient. Alcohol abuse may cause tremors, such as those experienced by Ms. Penansky. Although Ms. Penansky’s alcohol abuse may not have resulted in patient harm, it does not mean that it will not result in harm in the future. It is not necessary to wait for a patient to be harmed to determine whether a nurse can practice with reasonable skill and safety by reason of use of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j), Florida Statutes; imposing an administrative fine of $250; requiring her to undergo an IPN evaluation; suspending her license until such time as she undergoes an IPN evaluation; requiring compliance with all IPN recommendations, if any; and placing her on probation for three years with direct supervision. DONE AND ENTERED this 25th day of September, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2007.
Findings Of Fact Valaria Alsina has been licensed as a medical physician in Florida since 1976 and was so licensed at all times here relevant. On August 19, 1980, Elsa Trujillo and her daughter Nancy, age 12, visited the office of Respondent for treatment. This was the initial visit to Respondent by these patients. Patient histories in Exhibit 3 for Elsa show the first entry to be October 7, 1980; however, the language used in this history clearly shows this to be not Elsa's first visit. Respondent's testimony and reports submitted by Respondent to Petitioner, Exhibit 3, reveal initial complaints by this patient to be dizziness, urinary tract infection, vomiting, vaginal discharge, headache, depression, burning sensation while voiding, and dark urine. Respondent did a urinalysis, took blood for testing, did a PAP smear and vaginal irrigation. Other treatment rendered this patient was not disclosed. The skin and blood tests performed constitute the gravamen of the charges here involved. In Exhibit 1 Respondent billed the insurance carrier for Elsa $359.50 for this visit of August 19, 1980. Those blood tests, the necessity for some of which is questioned by Petitioner, are for glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including sodium, potassium, chlorides, and carbon dioxide) total protein, bilirubin, and albumin. The reason the need for these tests is questioned is because they were billed to Prudential Insurance Company as individual tests for each of which Respondent billed from $10.00 to $20.00. These tests are normally performed by medical laboratories in groups, automatically, in which testing machines are programmed to do certain tests on one blood sample introduced into the testing machine. These automatic testing procedures are generically designated "SMA" and are known as SMAC-6, SMAC-16, SMAC-26, etc., with the number denoting the number of tests performed. Those blood tests performed on the Trujillos are all included in the SMAC-22 program for which a laboratory normally charges the doctor $10-$12. Had these tests been charged as SMAC-22, the fact that several were unnecessary would have been accepted because, as a SMAC-22 neither physical nor financial harm resulted to the patient from the unnecessary blood tests conducted. The SMAC-22 could have been performed as cheaply as or cheaper than two manual and individual tests. Since Petitioner's expert witnesses both agreed that some of the tests conducted on this patient were indicated from the symptoms presented, the only fault they found was in Respondent's performing, and charging the patient for, individual and manual blood tests for which there was no medical justification. Nancy Trujillo was seen by Respondent on August 19, 1980. For this visit Respondent billed Prudential Insurance Company $262.50. Clinical data prepared by Respondent for Nancy shows usual childhood diseases, tonsillectomy, adenoid-ectomy, fever, sore throat accompanied by ear pains and swelling, patient complaining of weakness, history of anemia, poor appetite, burning sensation when voiding, dark urine, and a skin rash on right leg. Patient's weight was recorded as 70 pounds, but neither height nor temperature was recorded. In addition to a complete physical examination, a urinalysis, skin culture, and sensitivity test were done, and blood chemistry tests included complete blood count, calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. These blood tests, all of which (except the cbc) are included in a SMAC-22, were billed as having been performed as individual tests at costs ranging from $10.00 to $17.50 each. Treatment prescribed for Nancy consisted of aspirin suppositories. Respondent testified that Nancy was under weight, although her height was not measured, and that she took Nancy's temperature but failed to record it. Jose Trujillo was seen by Respondent on February 4, 1981, as a patient. Clinical data recorded by Respondent on this visit (Exhibit 3) include ". . . history of diverticulitis of colon, states that have diet but feels like some abdominal discomfort accompanied by diarrhea and feels weak. Patient with history of admission in the hospital, admission Palmetto General Hospital. Some lower discomfort abdomen and dark urine." For this visit prudential Insurance Company was billed $340 for complete physical examination (genital exam omitted) complete blood count; urinalysis; blood tests including glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including calcium, potassium, chlorides, and carbon dioxide) total protein, cholesterol, triglycerides, SGOT, SGPT, and alkaline phosphates; urine culture; sensitivity test; and collection and handling. The blood tests were all included in a SMAC- 22 but were billed as individual and manually performed tests with costs ranging from $10.00 to $20.00 each. Petitioner's expert witnesses both testified that some of the tests performed on these three patients were indicated by the symptoms and complaints described. Other tests conducted were not appropriate for the symptoms given. They also agreed that had these tests been conducted and billed as a SMAC-22 they would not consider that that could be a violation of the Medical Practices Act because, even though some of these tests were not medically indicated, they "come with the package" and would not increase the cost to the patient. However, when conducted manually and individually and so billed, the practice of conducting blood tests for which there is no medical justification does not conform to the generally prevailing standards in the medical community. Because of the findings below, it is unnecessary to denote those tests performed on each of the Trujillos for which there was no medical justification. Although billed to Prudential Insurance Company as manually and individually performed, the blood tests on the three patients above-named were conducted as a SMAC-22 and were not performed manually and individually as testified to by Respondent. This determination is based on the following facts, circumstances, and rationalizations: Respondent sent the blood samples from these three patients to Central Medical Laboratory, Inc., for a SMAC-22 test. Respondent testified that she performed each of the series of 10 to 15 tests on the blood samples of these patients in 20 to 30 minutes; however, other medical witnesses testified it took a trained technician 20 minutes to perform one of these blood tests manually. The latter testimony is deemed more credible. Many of these tests have subjective characteristics, such as color comparisons, and identical results from the same blood sample tested by two technicians or run through the same automated process would be rare. The odds against a technician performing individual and manual tests on 16 blood samples and obtaining the identical result on all tests that is obtained from a commercial laboratory SMA test is astronomical. Yet, the one report obtained from Central Medical Laboratory for the SMAC-22 conducted on the blood sample from Jose Trujillo (Exhibit 7) is identical to the "manual and individual" test report maintained by Respondent for the same blood sample in Exhibit 3--with one exception. The laboratory found the triglyceride test to be 254 MG/DL, well outside the 30-175 range for this test. On Exhibit 3 Respondent recorded 175 for this test. She testified she sent blood samples from the three Trujillos to the laboratory to have a check on her tests but did not ask the laboratory to do a recheck on the triglycerides test on Jose or recheck her test for triglycerides after receiving the laboratory report. Only a small amount of blood (5 or 10 cc) is required for an automated procedure for up to 40 different tests, whereas at least three times this amount of serum would be required for 10 tests conducted manually or individually. Accordingly, manual testing would require the drawing of a lot more blood than would be required for automated testing in a commercial lab. Respondent testified that she sent one-half of the blood sample taken on each Trujillo to the laboratory and kept the other one-half to test in her office. Commercial medical laboratories are licensed by the state; are checked for compliance with proper procedures; equipment used is checked for proper calibration at frequent intervals; reagents used in the testing is frequently replaced; and, when compared to the equipment, procedures, calibration, and reagents used in a physician's office which are subject to no regulation, the former should provide the more reliable test in a much shorter time. The equipment in Respondent's office is capable of being used to conduct all of the tests on these three patients for which Respondent billed Prudential Insurance Company. No rational explanation was provided to justify having a SMAC-22 performed and duplicating these tests manually. Respondent's testimony that the SMAC-22 was ordered to check the results of the manual tests she performed is not credible. If a check on the manual tests conducted on blood samples of Nancy and Elsa Trujillo for the August 17, 1980, visit was desired, it would appear appropriate to check the office procedures by doing a SMAC-22 on only one of those blood samples, rather than have both of these samples checked as was done here. Repeating this "check" on the sample taken from Jose Trujillo on February 4, 1981, does not make sense. Either the laboratory test is trusted or it is not. The same applies to the individual tests conducted manually in the office. If confident of the procedures, there would be no reason for Respondent to check the manual tests conducted in the office by sending one-half of the serum to a commercial laboratory. Respondent testified that Central Medical Laboratory picks up blood samples at her office daily. This suggests that some tests are routinely ordered by Respondent and conducted by the laboratory, and no evidence was presented to rebut such a conclusion. On the other hand, Petitioner presented no evidence of the volume of tests conducted by Central Medical Laboratory for Respondent which would solidify this conclusion. Nor did Petitioner submit the SMAC-22 results obtained by Central Medical Laboratory for the blood test conducted on the serum taken from Elsa and Nancy Trujillo on August 17, 1980, to see if they too were identical to the results shown in Exhibit 3. The only rational explanation for having SMAC-22 tests performed in a commercial laboratory and reporting these tests as done individually and manually in Respondent's office is the amount the insurance company will pay for the latter is nearly ten times what they will pay for the former. Laboratory tests billed for Jose Trujillo for the February 4, 1981, visit amount to nearly $250. Charges submitted for these tests reported on the SMAC-22 (Exhibit 7) amount to $187. Respondent testified she paid for the SMAC-22 tests she ordered and did not bill the insurance company for these tests because "they won't pay for both" SMAC and manual tests performed on the same sample. Since the lab charged Respondent only $10-$12 for the SMAC-22 tests conducted, the insurance company would not pay $187 if these tests were charged as automated tests. Considerable evidence was submitted that there was no medical justification for certain of the tests performed on Nancy, Elsa, and Jose Trujillo. For Nancy, these unnecessary tests included tests for calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. For Elsa, these unnecessary tests were calcium, phosphorus, uric acid, total protein, bilirubin, with either BUN or creatinine justified, but not both. For Jose, no medical justification was shown for manually performed tests for glucose, calcium, phosphorus, electrolytes, SGDT and SGNT. In view of the finding above, that these tests were not manually done but were performed as a SMAC-22, the fact that they are not medically justified if done manually becomes immaterial.
