The Issue The issues are whether the Respondent should be prohibited or restricted from practicing as a licensed registered nurse and as a licensed massage therapist, or be otherwise disciplined, for allegedly being unable to practice nursing and massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition, in violation of sections 464.018(1)(j) and 480.046(1)(h), Florida Statutes (2016).1/
Findings Of Fact The Respondent is a Florida licensed registered nurse (RN 9295784) and licensed massage therapist (MA 46128). She has been working as an RN in Florida since 2009. Neither her nursing nor her massage therapist license had been disciplined before the charges filed in this case. In January 2016, the Respondent was working three 12- hour night shifts as a nurse in a hospital that admitted mentally ill patients. After being assaulted by a violent patient, she decided to change specialties. In May 2016, the Respondent applied for a job at Moffitt Cancer Center in Tampa. Moffitt made an offer, contingent on passing a health screening, which included a drug screening. During the screening on May 10, the Respondent appeared to be drowsy, which seemed odd and suspicious to the Moffitt staff who conducted the health screening. The Respondent’s urine sample was corrupted, and she returned two days later to provide another sample. The second sample tested positive for butalbital, oxazepam, morphine, codeine, temazepam, and alprazolam. The Respondent had prescriptions for all these drugs, but the one for butalbital was not current. Butalbital is a Schedule III controlled substance under section 893.03(3), Florida Statutes, and is found in Fiorinal and Fioricet, which are prescribed to treat migraine headaches. As a result of the pre-employment screening, Moffitt would not clear the Respondent to work there. The Respondent testified that she appeared to be drowsy at the time of the Moffitt pre-employment screening because she was tired from working three consecutive 12-hour night shifts at Hospital Corporation of America’s West Pasco Hospital in Trinity. In addition to working at the hospital, she was acting as a union delegate, plus going to school full-time to earn a bachelor’s degree in nursing, and she was up late studying the night before her screening at Moffitt. The Respondent denied abusing or misusing her prescriptions and explained that she was taking the out-of-date prescription to save money on a prescription she used infrequently, as needed, for migraines. In July 2016, the Respondent was recruited for a nursing job at Bayshore Health System’s St. Joseph’s Hospital in Tampa. She was hired and participated in a pre-employment screening there. Her drug screening tests were negative, and she was cleared to begin work starting on July 18. At St. Joseph’s, the Respondent passed her skills tests and worked three 12-hour shifts a week from 7:00 p.m. to 7:00 a.m. She took her new job seriously. Since she previously worked on a mental health unit, she was first assigned work with a preceptor in the neurological stroke unit to refresh general nursing skills. In September 2016, the Respondent received a letter from Moffitt saying that “recent events” had come to Moffitt’s attention that could constitute a violation of the Nurse Practice Act and advising that Moffitt would have to report the Respondent to DOH and the Board of Nursing if she did not consult with the Intervention Project for Nurses (IPN), within two days, as an alternative to disciplinary action for nurses who are in violation because of the use drugs or alcohol, or because of physical or psychological impairment. The Respondent did not think she was in violation and declined to consult IPN. Moffitt filed a complaint with DOH, which began the process of compelling the Respondent to be evaluated by an expert in addiction medicine. In October 2016, the Respondent’s supervisor, Laura Robidoux, talked to her because she thought the Respondent failed to recognize a patient’s subnormal temperature as a sign of sepsis. Seventeen hours after the Respondent’s shift ended, the patient went into medical distress, and the hospital staff recognized sepsis as the cause. Although several other nurses and doctors were involved in the patient’s care both during and after the Respondent’s shift, the Respondent was counseled about it. St. Joseph’s terminated the Respondent from her employment in early December 2016. The Respondent’s supervisor believed the Respondent missed a shift on Saturday, December 3, because of excessive drinking. Actually, the Respondent reasonably believed that she was not scheduled to work the shift in question. She already had satisfied her 36 hours of work that week, between actual work and paid time off; she was not expecting to have to work a fourth shift on Saturday; and she was unaware that she had been scheduled to work. The Respondent had dinner and a glass of wine with her mother, who resided with her. After dinner, she took a shower. At about 6:30 p.m., the unit secretary at St. Joseph’s called to say the Respondent was supposed to be at work. Her mother took the message and relayed it to the Respondent, who immediately called back to explain that she did not think she was scheduled to work and did not think she should go to work because she just had a glass of wine with dinner. The Respondent’s supervisor received a “zone report” on the supposed missed shift on Monday, December 5. She was very upset with the Respondent and did not accept her explanation of what happened. She informed the Respondent that, as a probationary employee, she was going to be terminated from her employment. The Respondent chose to resign instead. On the form used by Nurse Robidoux to document the reasons for terminating the Respondent, she added that the Respondent did not get the flu shot that was required by December 1, 2016. That ground for termination was false. Actually, as the Respondent tried to explain to her supervisor, she got her flu shot at CVS on November 28. Although the Respondent had proof, her supervisor maintained the alleged flu shot failure as a ground for termination. The termination documentation did not mention the incident in October regarding the patient with sepsis. It also did not mention any other grounds for termination. In her deposition on July 31, 2017, Nurse Robidoux talked about another supposed patient care issue, which she thought was a medication error, but she was not sure and was unable to recall any details. There was no evidence of any other patient care or attendance issues during the Respondent’s employment at St. Joseph Hospital. There was no evidence of any other incidents that could raise any concern that the Respondent was impaired in any way while working as a nurse at St. Joseph’s Hospital. The addiction medicine expert retained by DOH to evaluate the Respondent was Dr. Lawrence Wilson. Dr. Wilson was a urologist until substance abuse impaired his ability to practice medicine, and he entered the Professional Resource Network (PRN) program. Instead of remaining in urology after successful completion of the program, he decided to pursue addiction medicine. He completed a two-year fellowship in addiction medicine at the Drug Abuse Comprehensive Coordinating Office (DACCO) at the University of Florida in Tampa from 2010 to 2012 and is board-certified in the field. After his fellowship, he went to work at DACCO in Tampa and eventually became its associate medical director. He also serves as medical director at a private treatment facility in Tampa called Seven Summit Pathways, which is a residential and outpatient medication- assisted treatment facility. He also is a certified medical review officer, meaning he is qualified to determine whether there are legal and valid reasons for substances detected by laboratories testing samples from a drug screening program. Coincidentally, Dr. Wilson arranged to examine and interview the Respondent on December 14, 2016, shortly after her termination by St. Joseph’s Hospital. His evaluation was based on the examination and interview, the reports on three drug tests he had done on the Respondent, the report from Moffitt, and a telephone interview with Laura Robidoux. Dr. Wilson understood from Nurse Robidoux that the Respondent had “major performance issues” involving her failure to “pick up on clinical symptoms of her patients.” In fact, only one patient was involved. The Respondent was in the process of been retrained under the supervision of a preceptor at the time, and it was not clear from the evidence who was responsible for not recognizing the patient’s symptoms. Dr. Wilson also understood from Nurse Robidoux that the Respondent missed her shift on December 3 “because she had been drinking with friends” and “didn’t call that she was not coming to work and then didn’t show up [a]nd called, ‘after the fact’ – according to Ms. Robidoux – after her shift already started.” His understanding was incorrect. The Respondent’s explanation of what actually happened is accepted. The Moffitt drug screen was positive for several drugs. The Respondent had valid prescriptions for all of them except butalbital, which is a barbiturate and a Schedule III controlled substance under section 893.03(3). It can lead to moderate or low physical dependence or high psychological dependence. The Respondent’s primary care physician had prescribed Fiorinal, which contains butalbital and codeine, to treat the Respondent’s migraine headaches, which is a common use for it. However, the prescription was five years out-of-date. The Respondent conceded to Dr. Wilson that she should have asked her doctor to update the prescription, but she tried to explain that she did not use the prescription much and was trying to save money. The Moffitt drug screen also was positive for five other drugs, or their metabolites, for which the Respondent had valid, current prescriptions. These included alaprazam (generic for Xanax) and temazepam (generic for Restoril). In her interview on December 14, the Respondent told Dr. Wilson she was taking: Lisinopril; Zyrtac (an antihistamine used for allergies); Tylenol with codeine; Fiorinal; metoprolol (a beta blocker for blood pressure); Zofran (an antiemetic for nausea); Protonix (for gastroesophageal reflux); Ativan (generic for lorazepam, a long-acting benzodiazepine sedative); and Vistaril (a sedating antihistamine, typically used for anxiety). The Respondent told Dr. Wilson that she was “on and off” Xanax, a short-acting (two to four hours) benzodiazepine, for 20 years. She had been using it on an almost nightly basis for approximately five years, but stopped using it in approximately June 2016. She decided to stop taking it because she had to increase its dose to achieve the desired therapeutic effect (as her body habituated to the drug, and her tolerance for it increased). She had some withdrawal symptoms when she stopped taking it, including feeling sick, having trouble sleeping, and getting tremors or shakes for about three days. Dr. Wilson opined that the Respondent had become dependent on benzodiazepines. At some point in the year or so before Dr. Wilson evaluated her, the Respondent went to a second physician, who prescribed Restoril, a medium-acting benzodiazepine (temazepam). She was taking Restoril, 30 milligrams, “on and off” for about a year. Before she stopped the Xanax, there were times when the Respondent would take both Xanax and Restoril (which would explain the positive results from the Moffitt drug screening). It was a concern to Dr. Wilson that the Respondent might have been taking Xanax and Restoril together because they would have a synergistic effect and produce a higher level of sedation. The concurrent use of multiple benzodiazepines can cause cognitive impairment, including slow reactions and difficulty with problem-solving, which are critical to the practice of nursing and, to some lesser extent, massage therapy. However, the evidence was not clear and convincing that the Respondent used multiple benzodiazepines concurrently or that she ever was impaired when practicing nursing or massage therapy. As part of his evaluation on December 14, Dr. Wilson had the Respondent submit to a hair test and a urine test. A hair test typically records two to three months of substance or medication ingestion. A positive hair test indicates multiple, repeated uses of a substance or medication (at least four to five uses) over a two or three week period. A one-time use would not show up on a hair test. The Respondent’s hair test was positive for butalbital, codeine, hydrocodone (a metabolite of codeine), and Tramadol. The Respondent had valid prescriptions for the Fiorinal, which would explain the positive results for butalbital and codeine. Hydrocodone is a metabolite of codeine, which probably explains its presence along with codeine. The Respondent also had a prescription for Tylenol with codeine, which she was taking approximately three to five days a month for various musculoskeletal aches and pains in her hips, back and knees, and for premenstrual discomfort. The prescription was for one pill twice a day, but the Respondent admitted she would use between three and four tablets a day, which concerned Dr. Wilson. In general, Dr. Wilson was concerned with the Respondent taking opiates and benzodiazepines together. Both cause significant depression or slowing of the central nervous system, and using them together can lead to cognitive impairments, including slow thought processes; and taking too much could cause the Respondent to fall asleep or pass out, which obviously would affect her ability to practice nursing and massage therapy with reasonable skill and safety. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the concurrent use of these two drugs. The positive result for Tramadol was very significant to Dr. Wilson because the Respondent did not mention it or produce a prescription for it during her interview, and the test showed a high level, which correlated to a significant use. Tramadol is a “non-opiate opiate,” meaning it mimics the effect of an opiate but is not made from opium poppy seed and has a different chemical structure. It is a strong analgesic used for pain management and, depending on the dose, can cause significant central nervous system depression. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the use of Tramadol, alone or in combination with any other drug. Dr. Wilson did not think it likely that the Respondent had a plausible reason for not mentioning the Tramadol, and he believed she was trying to hide it from him. The Respondent’s explanation was that she had been taking it for menstrual cramps for about three months instead of Tylenol with codeine because it gave her enough pain relief without promoting menstrual bleeding; that it allowed her to remain clear-headed; and that she did not consider it to be an opiate or non-opiate opiate. Similar to the Xanax detected by the Moffitt pre-employment screening, the Respondent was using what remained from an out-of-date prescription. During the interview on December 14, Dr. Wilson asked the Respondent about alcohol. She told him that she would drink weekly during college, about three to five drinks, until becoming fairly intoxicated; that she drank socially in her thirties, about twice a week, between three and five ounces; and that her drinking decreased during her thirties and forties; and that she currently drinks one or two alcoholic beverages about four to five times a year. She said her most recent drinks were a large Bailey’s after dinner two days before the interview, and a large drink about ten days before that. As part of her examination by Dr. Wilson on December 14, the Respondent submitted to a phosphatidyl ethanol (PEth) blood spot test. This test measures ethanol in the blood stream and is used to detect heavy, frequent use of alcohol and/or binge drinking on less request occasions, as opposed to social drinking. The standard cut-off of the PEth test is set at 20 nanograms per milliliter (ng/ml), which requires, at a minimum, approximately seven to eight ounces of alcohol in a week. The Respondent’s PEth test was positive at 63 ng/ml, which was inconsistent with what she reported to Dr. Wilson. Dr. Wilson diagnosed the Respondent with alcohol use disorder of mild to moderate severity because he thought she used alcohol in larger amounts over a longer period of time than intended; her alcohol use resulted in a failure to fulfil a major obligation at work; and there was recurrent alcohol use in situations in which it was hazardous. He opined that her alcohol use put her at risk for being unable to practice with reasonable skill and safety to patients. During the interview on December 14, Dr. Wilson also asked the Respondent about cannabis use. She told him she used it a lot during high school, decreased its use in her twenties to episodic, and that she had not used it in four years. Dr. Wilson conceded that it did not seem to be an issue anymore and was insignificant, but he still diagnosed cannabis use disorder, moderate severity, in remission, based on her use of large amounts over a long period of time (in high school) and a general presumption that she spent “a great deal of time . . . in activities under the influence or to use or obtain, or recover from its effects.” After completing the evaluation of the Respondent, Dr. Wilson diagnosed: opioid use disorder, moderate severity; sedative/hypnotic use disorder, moderate severity; cannabis use disorder, moderate severity, in remission; alcohol use disorder, mild to moderate severity; chronic pain syndrome related to degenerative joint disease and chronic migraine headaches; hypertension; anxiety disorder, NOS; and chronic insomnia, NOS. Dr. Wilson opined that the Respondent was unable to continue her practice of nursing with the required skill and safety due to untreated substance use disorders and risk of impairment. He recommended that she enter treatment for substance abuse disorders, at a partial hospitalization level, at an IPN-approved treatment facility (which happens to be the kind of care provided for $5,000 a month at the substance abuse treatment facility operated by him in Tampa), and that she be monitored by IPN after completion of treatment. The Respondent disagreed, did not think referral to IPN was necessary, and declined IPN. Based on Dr. Wilson’s opinion and recommendation, DOH filed charges that the Respondent was unable to practice nursing or massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition, in violation of sections 464.018(1)(j) and 480.046(1)(h). Emergency orders were entered restricting her practice of those professions pending disposition of the charges. At the hearing, Dr. Wilson testified in support of his opinions. However, his ultimate opinions on whether the Respondent was “safe to practice nursing or massage therapy” were based on “suspicions” and the “possibility” or “risk” of impairment. In addition, they were based in part on factual assumptions that were not proven by clear and convincing evidence at the hearing. The Respondent called her own expert, Dr. James Edgar, to dispute Dr. Wilson’s opinions. Dr. Edgar is a board-certified psychiatrist. He is not board-certified in addiction medicine or addiction psychiatry; does not complete continuing education or self-study related to substance use disorders; and does not hold the kinds of certifications Dr. Wilson has. However, he has performed evaluations of licensed health care providers for PRN and IPN, which are Florida’s programs for impaired physicians and nurses, and for private attorneys who represented licensees, for over 42 years. Dr. Edgar based his opinion on a review of Dr. Wilson’s work, an interview of the Respondent, and psychological testing using the Minnesota Multiphasic Personality Inventory (MMPI-2), which is considered the “Gold Standard.” He accepted the Respondent’s explanations of her sleepiness during the Moffitt pre-employment screening interview and her use of her prescription drugs. As a result, he questioned some of the factual basis for Dr. Wilson’s opinions. He did not concur with Dr. Wilson that taking Xanax and Restoril (“an anti-anxiety medication and sleeping medication”) at the same time was necessarily dangerous, depending on the dose (which Dr. Wilson did not know), the patient’s age, the patient’s weight, and other factors. Dr. Edgar did not concur with any of Dr. Wilson’s Axis I diagnoses (opioid use disorder, sedative/hypnotic use disorder, cannabis use disorder, or alcohol use disorder). He also did not think the Respondent had an Axis II personality disorder. He agreed with Dr. Wilson that the Respondent has Axis III medical illnesses and conditions and Axis IV stressors that made her level of anxiety and irritation understandable. On Axis V, Dr. Edgar rated the Respondent at a “global assessment of functioning” (GAF) of 85. Dr. Edgar explained that a GAF of 90 represents: Absent or minimal symptoms (e.g. mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasionally argument with family members). A GAF of 80 represents: If symptoms are present, they are transient and expectable reactions to psychological stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Dr. Edgar explained that he does not think the Respondent has opioid use disorder because: (a) all opioids she took were prescribed by her doctor; (b) there is no indication that she has increased the use of these medications; and (c) there is no indication that the use of these medications has impaired her ability to function as a nurse. He reviewed a note from the Respondent’s physician stating that he thought she was safe to practice in nursing, and there was no history of any employer or fellow employee expressing concern about the Respondent’s ability to function as a nurse as a result of her medications. Former co-worker, John Ault, R.N., testified that she was very capable, in his opinion. Dr. Edgar explained that he does not think the Respondent has sedative/hypnotic use disorder because: (a) her medications were all prescribed by physicians; (b) she does not have what he would call a history of taking more of these medications than prescribed; and (c) she may have increased the dosage of Xanax, but that was “perfectly within the realm” because some people need more for the drug to be effective. He does not think her taking more of the medication is a sign or symptom of any substance use disorder. He also noted that, as a nurse, she is capable of making that kind of decision. Dr. Edgar explained that he does not think the Respondent has cannabis use disorder because: (a) there is no history of cannabis affecting Respondent’s behavior, her social situation, her schooling, or her work; and (b) her use of cannabis was more than 20 years ago. He also disagreed with Dr. Wilson that the Respondent has a “lifetime [cannabis] disorder.” Dr. Edgar disagreed with Dr. Wilson’s basing a diagnosis of alcohol use disorder on Respondent’s PEth test result. He believes the test is unreliable and insufficient to support such a diagnosis by itself. He thought the other evidence of alcohol use was lacking and minimal. Dr. Edgar said the “chronic pain syndrome” diagnosed by Dr. Wilson was unwarranted and was another example of his making more out of something than was warranted. Having pain and taking prescribed medication does not mean the Respondent has a syndrome. If she did, he says you would expect to see that diagnosis by her primary care physician. Instead, he says she has a history of migraine headaches, and as an older nurse has aches and pains from stooping and bending and picking up patients, and is appropriately treating both with physician- prescribed medications. Dr. Edgar does not believe taking expired medications is an indication of a syndrome, of drug abuse, or of a disorder. It could well be related to the cost of the medicine. Regarding Dr. Wilson’s diagnosis of anxiety disorder, Dr. Edgar referred to the result of the Respondent’s MMPI-2 testing and explained that it is perfectly reasonable for somebody in the Respondent’s very stressful situation to have anxiety. Regarding Dr. Wilson’s diagnosis of chronic insomnia, Dr. Edgar noted that nurses who have consecutive night shifts are more apt to have trouble sleeping. He did not believe there was enough information to call it chronic insomnia. He would leave any diagnosis regarding insomnia up to the Respondent’s primary care physician. The Respondent tried different medications to deal with her insomnia, and Dr. Edgar did not think that was necessarily dangerous, even if she used Restoril and Xanax together. Dr. Edgar’s evaluation of the Respondent included the information that the IPN program requires. He ruled out substance abuse and other mental health problems that might interfere with the Respondent’s ability to provide safe nursing care. He saw no pertinent chemical dependency history, no history of diversion of patient medications, and no history of misusing prescription medication. The question in his “IPN template” regarding “status and stability of recovery” was inapplicable because the Respondent had no history of drug abuse or dependency, was not in a recovery program, and was only taking medications prescribed by her doctor. Dr. Edgar observed no impairment in the Respondent’s problem-solving ability, cognitive functioning, judgment, ability to cope with stressful situations, decision-making in a crisis, or mental status. He found no cravings on the part of the Respondent for drugs or alcohol. Dr. Edgar concluded that the Respondent does not suffer from any kind of impairment or disease that has resulted in an inability to practice nursing with reasonable skill and safety. He does not believe she needs to be referred to IPN for a program like the one Dr. Wilson recommended. According to the DSM-V, a diagnosis of substance use disorder is based on a “pathological pattern of behaviors” related to substance abuse. A person who has opioid use disorder, sedative/hypnotic use disorder, and/or alcohol use disorder will have behavioral issues and/or impairment that is obvious to other people. These typically would include a lack of motivation and a failure to meet school or work responsibilities. The Respondent has not demonstrated these behavioral patterns. Quite to the contrary, she was pursuing her bachelor’s degree in nursing while working full-time when she applied for the job at Moffitt; and she started a computer systems technician program at Erwin Technical College when her licenses were suspended, and was maintaining a straight “A” average. Dr. Edgar did not think it was likely that an impaired person would be able to perform like that. Dr. Edgar acknowledged that the Respondent had high scores on the addiction proneness indicator in her MMPI-2 psychological test results, but he explained that score is a mere indicator, and is insufficient to support a diagnosis. While it is possible that a problem could arise from being prescribed these medications, Dr. Edgar does not believe problems have arisen to date in the Respondent’s case. He believes it is telling that there has never been a complaint or a concern about the Respondent’s work as a nurse or her ability to practice nursing safely, except for those of Ms. Robidoux. As he observed, “that is usually where it starts.” Dr. Wilson’s opinions appeared to be influenced by his honest and genuine belief as a physician that the Respondent would benefit from the care and treatment she could receive as a participant in IPN. He may well be correct. He also may be correct that there is some risk that problems might arise in the future. However, the evidence taken as a whole was not clear and convincing that the Respondent is now unable to practice nursing and massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final orders be entered by the Board of Nursing and the Board of Massage Therapy dismissing the charges against the Respondent. If this recommendation is followed, jurisdiction is reserved for 30 days after the rendition of the final order to rule on the Respondent’s Motion for Sanctions under section 57.105(1), if it is renewed within those 30 days. DONE AND ENTERED this 3rd day of November, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of November, 2017.
The Issue The issue to be determined is whether Respondent, Emily Randall, is guilty of violating section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed for the violations proven.
Findings Of Fact Respondent holds Florida Educator’s Certificate 701488, covering the area of school psychologist, which is valid through June 30, 2018. The Brevard County School Board (BCSB) is the entity charged with governing and administering the school district and is responsible for the supervision of the employees of the school district. The Commissioner of Education, as Petitioner in this case, is the state agency charged with the licensing and regulation of educators in the State of Florida. At all times relevant to these proceedings, Respondent was employed as an itinerant school psychologist for BCSB. Employment in an itinerant position means that Respondent was not assigned to a particular school, but rather worked at multiple worksites within the District. Respondent had an office at the north area office complex and also would report to three schools, including Coquina Elementary School (Coquina Elementary) in Titusville. BCSB employed Respondent as a school psychologist in 1992. Since that time, Respondent performed her responsibilities in an acceptable manner until the 2013-2014 school year. In practical terms, Respondent’s duties included performing student evaluations; designing intervention strategies with teachers, administrators, and parents; and attending meetings with those involved. Dr. Maggie Balado became the coordinator of psychological services in August of 2013. As the coordinator, she became Respondent’s supervisor. At the beginning of both the 2013-2014 and the 2014-2015 school years, Dr. Balado provided to the school psychologists, including Respondent, her personal contact information and that of her assistant, Ms. Beyer, so that absences from work could be reported. On October 30, 2014, Respondent was assigned to be at Coquina Elementary in Titusville. Coquina Elementary is located approximately 40 miles from Respondent’s home, and Respondent was scheduled to be there to watch a meeting with Enas Messick, Coquina Elementary’s guidance counselor. After the meeting with Ms. Messick, Respondent had planned to evaluate a student. Due to technical difficulties unknown to Respondent, the meeting with Ms. Messick was canceled. Respondent did not timely report to work at Coquina Elementary on October 30, 2014. She also did not timely report her absence from work on October 30, 2014, to Dr. Balado or Ms. Beyer. On Thursday, October 30, 2014, Respondent drove to Coquina Elementary in Titusville, Florida, at approximately 7:30 a.m. After sitting in the parking lot at Coquina Elementary for approximately an hour doing paperwork, Respondent drove home. Respondent had adequate leave available to her to be absent from work that day. Failure to report her absence from work was a violation of a reasonable directive. During the afternoon of October 30, 2014, Dr. Laura Rhinehardt, north area superintendent, contacted Dr. Balado regarding an evaluation for a child at Coquina Elementary. During the conversation, Dr. Rhinehardt mentioned that Respondent was not at Coquina Elementary that day. Dr. Balado then telephoned Respondent to ask where she was. Respondent told Dr. Balado that she was in the parking lot at Coquina Elementary when she was not. Respondent reported to Dr. Balado that she was performing her duties at Coquina Elementary that day, when in fact she was at home. Dr. Balado was suspicious of this statement and directed that Respondent go into the school office and call her back on the landline at the school. Although Respondent stated that she would do so, she did not. She told Dr. Balado that she went into the school’s office as directed, but did not feel comfortable using the school’s telephone to call Dr. Balado back. Respondent did not go into the school’s office. Respondent lied to Dr. Balado when she told Dr. Balado she was at Coquina Elementary when she was not. Dr. Balado then contacted Dr. Elizabeth Thedy, the assistant superintendent for student services, and related to her the events of the day. Dr. Thedy placed Respondent on paid administrative leave on October 31, 2014. On November 4, 2014, Respondent, Dr. Thedy, and Jim Hickey, director of Human Resources and Labor Relations, attended a meeting to discuss the events of October 30, 2014. Respondent told Dr. Thedy and Mr. Hickey that she was at Coquina Elementary on October 30 and that she could prove it. She indicated that Ms. Messick would verify that she had been at Coquina Elementary. Ms. Messick did not see Respondent at Coquina Elementary on October 30, 2014, but did corroborate that Respondent had telephoned her to advise that she would not be at the school. Respondent later stated that she sat in her car in the parking lot at Coquina Elementary all day on October 30, 2014. Mr. Hickey asked Respondent to provide a written statement setting forth the events of October 30, 2014. At that point, Respondent admitted that she had not stayed at Coquina Elementary all day as she previously stated. Following Respondent’s admission and Mr. Hickey’s further consideration of her behavior, a pre-termination meeting was scheduled for November 12, 2014, to discuss Respondent’s conduct. Dr. Balado, Respondent’s supervisor, recommended termination for Respondent, because she felt she could no longer trust Respondent to be truthful with respect to either her whereabouts or her work product. Because of her status as an itinerant employee, Dr. Balado needed to be able to trust that she was where she was supposed to be and performing her assigned tasks, which are often time-sensitive. Dr. Balado no longer trusted Respondent. A second meeting was scheduled for November 21, 2014, to discuss Respondent’s future employment with the school district. Respondent remained on paid administrative leave throughout the procedure of reviewing the allegations and concerns regarding her performance and behavior. In anticipation of the November 21, 2014, meeting, BCSB staff conferred and decided to offer Respondent the opportunity to be placed on a performance improvement plan, with a freeze on her salary for the next school year, and an unpaid five-day suspension. Had the meeting gone as BCSB staff hoped, Respondent’s disciplinary action would have been resolved with Respondent’s acceptance of these terms. Respondent, on the other hand, believed that BCSB staff would be informing her that she was being terminated. There was no documentation provided to Respondent that would have indicated to her that termination was the only solution. Nor was there anything provided to Respondent that would have alerted her to the solution staff planned to propose. On the morning of November 21, 2014, Respondent drank two to three glasses of wine before leaving her home to attend the meeting. She then went to the meeting with Mr. Hickey, Dr. Thedy, and Dr. Balado. She was accompanied by her husband and her attorney. Respondent was very emotional during the meeting. She cried and at times appeared to be angry. She asked to be excused within minutes of the beginning of the meeting, and then returned. Meeting participants also described her as being disheveled, having flushed skin and red and watery eyes, and shaking hands. Most importantly, Mr. Hickey, Dr. Thedy, and Dr. Balado all believed that Respondent was emitting the strong odor of alcohol, giving them reasonable cause to believe that she was under the influence of alcohol. After conferring with one another, Dr. Thedy and Mr. Hickey completed a reasonable suspicion observation form and expressed concern that Respondent was intoxicated. Respondent submitted to a breathalyzer examination conducted by Kathy Krell, the Drug and Alcohol Program Administrator for the school district, after being directed to do so. There was no evidence presented to indicate that she objected to taking the test or to the manner in which it was administered.1/ Her attorney was present at the time she was asked to submit to the test. Ms. Krell, who is now retired, had conducted breathalyzer tests for the school district for over 20 years. She was certified by Intoxicators, the company that produces the breathalyzer machine used by the school district, to administer the breathalyzer test. The test was performed in accordance with her standard procedure and was completed in the regular course of business for BCSB, and included the statement signed by Respondent that “I certify that I have submitted to the alcohol test, the results of which are accurately recorded on this form. I understand that I must not drive, perform safety-sensitive duties, or operate heavy equipment because the results are positive.” Respondent also admitted in her letter to the Office of Professional Practice (Petitioner’s Exhibit 32) that “the results confirmed I was under the influence.” The results of the breathalyzer test indicate that, as of approximately 2:45 p.m. on November 21, 2014, Respondent’s alcohol level as measured by the breathalyzer test was .104. Based upon Respondent’s appearance, behavior, and blood test results from the breathalyzer test administered immediately after the meeting, Respondent was under the influence of alcohol at the time she met with Dr. Balado, Dr. Thedy, and Mr. Hickey. Upon receiving the results of the breathalyzer test, BCSB withdrew the disciplinary offer it had presented to Respondent. BCSB staff testified that when someone is on administrative leave, they should be prepared to report to work at any time, and be prepared to adhere to the behavioral standards required in the workplace: in other words, to comply with the zero-tolerance policy observed by the school district in terms of drug and alcohol use while on duty. The letter placing Ms. Randall on administrative leave did not state and Dr. Thedy, who wrote the letter, acknowledged that Respondent was not advised to be prepared to work while on administrative leave. The letter simply instructed Respondent “not to be on school board property while on administrative leave.” While the notice provided to Respondent placing her on administrative leave did not expressly state that she should not drink before attending her pre-termination meeting, it is inconceivable that she would think that to do so was appropriate. Moreover, BCSB’s Drug-Free Workplace Technical Guide states in pertinent part: Alcohol, prescription, and over-the-counter drugs are generally safe and acceptable when used according to proper instruction. Abuse of legal drugs over time or used in combination with another substance can result in chemical dependency or poly-drug addiction. Employees will be free of alcoholic or drug intoxication when on duty or on Board property. Employees are prohibited from the manufacture or use of alcoholic beverages while on Board property or while on duty with the Board. Subsequent to the November 21, 2014, meeting, Dr. Balado gave Respondent a referral to the school district’s employment assistance program (EAP). The EAP is available to employees with problems that adversely impact their ability to perform their work assignments. When an employee in EAP acknowledges his or her issue, participates, and agrees to seek help for his or her problem, the employer typically works to return the employee to the work environment. That did not happen here. On November 22, 2014, the day after the meeting to discuss her employment, Respondent was arrested in Seminole County, Florida, for driving under the influence, with a blood alcohol level of .15 or higher, in violation of section 316.193, Florida Statutes. On December 16, 2014, Respondent entered a plea of nolo contendere in State of Florida v. Emily Martin Randall, Case No. 592014MM010473AXXXXX (18th Jud. Cir., in and for Seminole Cnty.) to the amended charge of driving under the influence with a blood alcohol level of below .15, a misdemeanor. The trial court accepted the plea, found a factual basis for the plea, and adjudicated her guilty of the amended charge. Dr. Binggeli recommended that BCSB terminate Respondent’s employment on December 9, 2014. At hearing, Respondent testified that on the evening of October 29, 2014, her adult son was arrested. Respondent believed that the arrest was indicative of a more serious, long- standing issue that her son battled. The news of her son’s arrest devastated her, and she did not sleep because of her emotional turmoil. She has, since the events described above, participated in the EAP and sought independent counseling to deal with the emotional issues present in her personal life. The news that Respondent received about her son was troubling, and it is understandable that she would be upset by this development. It does not, however, justify her failure to simply report to her supervisor that she would not be attending work on October 30, 2014. It was undisputed that she had adequate leave to cover the absence. Under no circumstances does her emotional state justify her repeated fabrications regarding her whereabouts when given numerous opportunities to tell the truth. Respondent was terminated by BCSB on or about December 16, 2014. She is not currently working in the education field, but is instead performing administrative tasks in her son’s landscaping business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated section 1012.795(1)(f), (g), and (j), Florida Statutes (2014), and Florida Administrative Code Rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent’s certificate for a period of 18 months; that it require Respondent to participate in the Network Recovery Program; that after the completion of her suspension, she be placed on probation for two employment years, subject to terms and conditions imposed by the Education Practices Commission; and impose an administrative fine of $1,000. DONE AND ENTERED this 28th day of March, 2017, 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 28th day of March, 2017.
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.
The Issue The issues are whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty, if any, should Petitioner impose on Respondent's teaching certificate.
Findings Of Fact Respondent is authorized to teach English, the mentally handicapped, and psychology in Florida pursuant to Florida Educator's Certificate No. 435635. The certificate is valid through June 30, 2008. Respondent was an outstanding teacher for the Manatee County School District (the District) for approximately 21 years. The District employed Respondent as a language arts teacher at Manatee High School (Manatee) in 2000. On November 4, 2000, Respondent drove a white Dodge van approximately 30 miles an hour on the wrong side of U.S. Highway 41 (Highway 41) toward a deputy sheriff who was directing traffic during an annual festival. The deputy was off duty, but was in uniform and wore an orange vest. Highway 41 contains six lanes where the deputy was directing traffic. Three northbound and three southbound lanes are divided by a landscaped median with a turning ramp. Oncoming vehicles pulled off the road to avoid the van. The left front tire of the van was flat. The deputy attempted to stop Respondent by waiving his arms, jumping up and down, and yelling and screaming for Respondent to stop. Respondent drove past the deputy, and the deputy pushed off the front window of the vehicle. The deputy's vehicle was approximately 15 feet away with blue lights and strobe lights already operating. The deputy drove his vehicle after Respondent with the siren on. Respondent stopped the van approximately 1.4 miles from the location where she drove past the deputy. Respondent pulled into a parking lot of a chain restaurant. The deputy arrested Respondent for aggravated assault on a police officer and fleeing to elude a police officer. Respondent subsequently pled guilty to both charges. The court withheld adjudication and sentenced Respondent to six months of community control, 25 hours of community service, imposed fines and costs, and placed Respondent on probation for one year. Respondent satisfactorily completed her sentence, paid her fines, and completed her probation. On November 10, 2000, Respondent was under the influence of alcohol at Manatee as students were arriving for school. Administrators at Manatee gave Respondent a Breathalyzer test. The test disclosed a positive reading of .23. The legal limit is .07. The District suspended Respondent without pay on November 10, 2000. Respondent resigned from her teaching position with the District on November 16, 2000. The acts committed by Respondent on November 4 and 10, 2000, constitute neither gross immorality nor moral turpitude within the meaning of Section 1012.795(1)(c), Florida Statutes (2003). The acts were not base, depraved, dishonest, or unprincipled. They were related to alcohol addiction and a long-term illness of Respondent's mother. Respondent did not violate Section 1012.795(1)(e), Florida Statutes (2003). Respondent was not convicted of a criminal charge. The court withheld adjudication. Petitioner acknowledges in its PRO that Petitioner could find no authority to support a conclusion that the withholding of adjudication is a conviction for the purpose of this alleged violation. Respondent did not violate Section 1012.795(1)(f), Florida Statutes (2003). The evidence is less than clear and convincing that the acts committed by Respondent seriously reduced her effectiveness as a teacher. The traffic incident occurred away from school. The second incident occurred before school began and did not harm students or their parents. Respondent was an outstanding teacher prior to her resignation. She resigned her position before her condition had any effect in the classroom. Respondent violated Section 1012.795(1)(i), Florida Statutes (2003), by committing acts prohibited by Principles of Professional Conduct for the Education Profession. Respondent violated Section 1012.795(2), Florida Statutes (2003), by pleading guilty to the criminal charges against her. Three aggravating factors support a significant penalty against Respondent's teaching certificate. First, the offenses on November 4 and 10, 2000, were severe within the meaning of Florida Administrative Code Rule 6B-11.007(3)(a). (References to rules are to rules promulgated in the Florida Administrative Code on February 27, 1994.) Second, both offenses created a danger to the public within the meaning of Florida Administrative Code Rule 6B-11.007(3)(b). Third, the offense on November 10, 2000, was a repetition of an alcohol- related problem. The District had previously transferred Respondent from another school to Manatee in an effort to help Respondent with problems associated with alcohol addiction. Numerous mitigating factors listed in Florida Administrative Code Rule 6B-11.007(3) justify a penalty less severe than the three-year revocation and probation that Petitioner proposes. The last offense occurred more than three years ago. Respondent practiced as an educator for over 21 years before the last incident, made significant contributions to students and the educational system in which she worked, and has no other disciplinary history. Fla. Admin. Code R. 6B-11.007(3)(d)-(f). Respondent caused no actual damage to any person or property. A penalty in this case has little, if any, deterrent effect and will have a significant adverse impact on Respondent's livelihood. Respondent voluntarily resigned her position and successfully rehabilitated herself from alcohol addiction. Respondent candidly admitted actual knowledge of her offenses and their severity. Respondent pled guilty to the charges against her and voluntarily resigned her teaching position. No pecuniary gain inured to Respondent, and Respondent did not harm any student or child. Respondent is rehabilitated from her previous alcohol addiction. Fla. Admin. Code R. 6B-11.007(3)(g)-(k), (m), and (q)-(s). The evidence does not support a period of probation. Respondent's alcohol addiction was related to external circumstances involving Respondent's mother who was ill and in need of constant attention in 2000. Those external circumstances no longer exist. Respondent is rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c), (e), and (f), Florida Statutes (2003); guilty of violating Subsections 1012.795(1)(i) and (2), Florida Statutes; suspending Respondent's teaching certificate for one year beginning on November 10, 2000; and thereafter activating the certificate forthwith. DONE AND ENTERED this 7th day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2004. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Nina Ashenafi, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32301 Bruce P. Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731-0131 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006). Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473. The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals. Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse. Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor. On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week, to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN. Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals. In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status. Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear." The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992. On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001. Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder. On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification. On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004, Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife. Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret." On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol. In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that Dr. Driggers receive long-term residential treatment for his alcoholism. Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract. On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in 90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery. Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist." Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension. Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows: I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of .2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past. He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety. Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring. On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring. Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety. Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations. DONE AND ENTERED this 17th day of April, 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 17th day of April, 2007.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Department and the Board of Nursing have regulatory jurisdiction over licensed nurses such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On January 5, 1999, the Department issued Respondent license number RN3344322, which authorized her to practice as a registered nurse in the state of Florida. Respondent's address of record is 1720 Harrison Street, Apartment 11G, Hollywood, Florida. Though the record is less than explicit, it appears that, in or around July 2011, Respondent was suspected of misappropriating a small quantity of diazepam, a Schedule IV controlled substance. Although the administrative charges stemming from that allegation were ultimately dismissed, Respondent entered into an advocacy contract ("Contract") with the Intervention Project for Nurses ("IPN"), a program2/ which contracts with the Board of Nursing to monitor practitioners struggling with substance abuse issues or other problems. The Contract, which Respondent executed on October 5, 2011, mandated that she abstain from all mood-altering substances——including alcohol——for a period of two years; submit to random toxicology screens; and inform any potential employer of her participation in IPN. Further, by signing the Contract, Respondent acknowledged that she had reviewed the IPN Participant Manual ("Manual") and would abide by its terms. Significantly, the Manual provided that, upon a relapse,3/ Respondent would be required, as a condition of continued enrollment in IPN, to refrain from nursing until such time that an IPN-facilitated evaluation could be performed.4/ Subsequently, on or about December 20, 2011, Respondent obtained employment with Wound Technology Center as a "call-center nurse." In connection with this position, which required licensure as a registered nurse, Respondent provided consultation services to clinicians regarding wound treatment. Thereafter, on January 18, 2012, IPN requested that Respondent furnish a sample of her urine for testing. The results, which IPN received on January 24, 2012, revealed the presence of ethyl glucuronide (a metabolite of ethyl alcohol) and ethyl sulfate. That very afternoon, Patrice Ward, an IPN case manager, contacted Respondent by telephone to discuss the positive test result. During the ensuing conversation, Respondent admitted that she had consumed a glass of wine5/ with dinner, at which point Ms. Ward instructed Respondent to immediately refrain from nursing practice. Regrettably, Respondent failed to comply, without good cause, with Ms. Ward's directive to refrain from practice; indeed, the evidence demonstrates that Respondent continued to perform her regular nursing duties over the next two work days. Respondent's failure to refrain from nursing was quickly brought to the attention of IPN's executive director, who, consistent with the Contract's express provisions, terminated Respondent from IPN on January 26, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating section 456.072(1)(hh); suspending Respondent's nursing license until such time that an IPN-facilitated evaluation is completed and Respondent is deemed fit to return to practice; and ordering Respondent to enter into a monitoring agreement with IPN, should the IPN-coordinated evaluation demonstrate the need for further treatment. DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 8th day of April, 2014.
