The Issue The issue for consideration in this case is whether the Respondent's license as a certified respiratory therapy technician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was the state agency in Florida responsible for the licensing and regulation of the respiratory therapy profession in this state, and Respondent was licensed as a respiratory therapy technician under license number TT 0004476. On January 17, 1990, the Advisory Council on Respiratory Care of the Board of Medicine entered an Order granting Respondent licensure as a respiratory therapy technician conditioned upon his passage of the licensure examination and, as pertinent here, "contingent upon his entering into and successfully participating in the Physicians Recovery Network (PRN) program." The Order also provided, "Successful participation shall require fulfillment of any requirements set by the PRN program." A copy of this Order was furnished to the Respondent shortly thereafter and he interposed no objection to the terms thereof. Just previous to that Order, Respondent had entered into an Advocacy Contract with the Impaired Practitioner Program of Florida, administered by the PRN, by which he agreed, inter alia, to participate in random urine drug and or blood screen programs through Dr. Krone within twenty-four hours of notification, and to contact the office of the PRN by monthly letter. It must be noted that the requirement to participate in random urine testing was not limited as to the number of tests Respondent would be required to undergo, and it also must be noted that the requirement to contact the PRN by monthly letter did not specify the content of the letter. However, Dr. Goetz, the Director of the program, indicates that in a conversation he had with Respondent at the time the contract was signed, he indicated to Respondent that he should advise the Network he had abstained from drug use during the period and was experiencing no difficulties in his work because of drugs. Respondent claims not to recall such a conversation, but it is found such conversation was likely in light of the purpose of the program. Nonetheless, Respondent did not file the required monthly letters with the Network though there is some evidence he did participate in the random testing required. The file maintained on Respondent by the Network, however, reveals he was somewhat "testy and obnoxious" in his dealing with Network personnel. In that regard, however, Respondent indicates he had what appears to be a personality clash with a Network representative, Mr. Westmoreland, and his attitude toward Network personnel may well be the result of Westmoreland's approach to Respondent. This does not excuse Respondent's use of gutter language and profanity in some of the oral and written communications he had with the Network, but there was, originally, no requirement in the contract for politeness. In September, 1990, when Respondent had not submitted the required written communications, he was contacted and reminded of his obligation. At that time, he gave some vague explanation for not complying, and as a result, the Network, on October 2, 1990, entered into a new contract with Respondent which, back dated to December 1, 1989, the date of the original contract, again included the requirement for random urine testing and monthly letters - identical to the requirements in the original contract. Thereafter, Respondent still failed to file the written communications until, in June, 1991, he sent in a short, caustic letter. Thereafter, in July, August and September, 1991, Respondent filed short one or two sentence letters which merely indicated the note was full compliance with the contract terms. In the letter sent in by Respondent in October, 1991, he added the comment he had never been chemically dependent on any substance. On November 19, 1991, Ms. King, for Dr. Goetz, advised Respondent in writing of his responsibility to enter and successfully participate in the program of the PRN, and that unless he contacted the Network within seven days to present his proposal to cooperate in meeting the terms of the contract, it would be reported to the Respiratory Council that he had not successfully cooperated in their program. The letter does not tell Respondent wherein he has been delinquent, however, and only by implication asserts his lack of successful cooperation. In response to that letter, on December 4, 1991, Respondent wrote a scathing indictment of the tactics employed against him by Network personnel, specifically Mr. Westmore [sic]. After reiterating his contention that he has never taken drugs for any purpose and that his conviction on the possession charge was, at least in part, because of his race, in sometimes gross language he indicated his frustration with the program and his desire to be taken off it if it was the Council's intention to keep him on it for the rest of his life. Upon receipt of that letter, Dr. Goetz, on behalf of the Network, advised the Respiratory Council by letter that the Network had been unable to successfully monitor Respondent in its program, and offered to forward background information to support that conclusion. It would appear that upon the receipt of that information, the Council contacted the Department's legal section and, after a review of the file by that agency, was advised that Respondent had not violated his contract. Therefore, in an effort to salvage the relationship with Respondent, the Network prepared another contract for Respondent which included a reiteration of the requirement for random urinalysis and for the monthly contact, though this time, the contact was to be by telephone to Dr. Goetz only or, in his absence, his designee. This was to obviate the potential of Respondent getting into any dispute with other staff members. In addition, however, a requirement was added that Respondent be courteous and cooperative in all contacts with the PRN staff and representatives. Respondent refused to sign that contract even though it, too, was back dated to December 1, 1989, and his signature would not have added any time to the period of observation. Instead, on August 17, 1992, Respondent wrote to Dr. Goetz, again outlining his position that he was in full compliance with the PRN requirements and complaining of what he saw as the unfairness of the requirements placed upon him. After fully describing what he considered to be the inappropriateness of the requirements, he outlined his position on the various paragraphs of the proposed contract and indicated he would sign it only if he were guaranteed he would get full credit for time already spent in the program, and the total time of enrollment is reduced below five years. Upon receipt of that letter, Dr. Goetz telephonically contacted the Department's legal section and was advised to obtain a psychiatric evaluation of the respondent. Attempts were made to contact Respondent through September, October and November, 1992, both by telephone and by certified letter. Phone messages were not returned and the certified letter was not accepted. In this regard, Respondent claims he did not receive the letter, possibly because of a residential move. However, he did not indicate when this move took place, and as a result, it is impossible to determine if that is the reason for the nondelivery of the letter or if Respondent merely refused to accept it. Thereafter, in December, 1992, a letter was sent to the Department's legal staff by the Network, forwarding a copy of the latest contract and Respondent's response thereto. In the following February, the Department counsel was advised by Network that it was unable to establish cooperative monitoring of the Respondent and that Respondent was in violation of paragraphs 1 and 4 of the contract, relating to random urinalysis and monthly communication. It would appear that Respondent neither submitted to urinalysis nor had any monthly contact with the Network subsequent to his letter to Dr. Goetz in August, 1992. Respondent admits it is not in his best interests not to comply with the terms of the contracts he executed with the Network, and he would like to comply with as little friction as possible. However, he claims, shortly after the execution of the original contract, he received a call from Mr. Westmoreland indicating he was not complying. When he asked for an explanation, he was brusquely told, "read the contract", without further explanation. It was only when he spoke with another Network representative, Ms. Crummy, that he was told wherein he was delinquent. At that time, he also got the second contract. Notwithstanding Dr. Goetz had discussed the terms of the contract with Respondent at or shortly after the signing, Respondent contends he was not aware of the requirements for monthly letters, claiming he believed he had only to submit to the random urinalysis. In light of the Respondent's educational level, and the extreme simplicity of the contract language, it is impossible to accept that Respondent didn't know what was expected of him, and it is so found. Respondent has always contended he was not a drug user and denied he had any dependency on drugs. Therefore, he claims, he did not see any reason to send in a monthly letter nor did he know what the letter should include. For that reason, he asserts, he merely used the short form letter utilized in the early responses. When he was advised that was not sufficient, he wrote a longer letter which said much the same. He claims not to know what more he could have said. Respondent relates an ongoing disagreement with Mr. Westmoreland, and was, because thereof, transferred to the monitoring of Mr. Fontaine. In November, 1991, he was called for a urinalysis but had no money to pay for it. In light of the fact that Dr. Krone, the physician performing the urinalysis, reportedly had changed his procedure to require cash in advance, Respondent indicated he would take the test when he got paid later in the month. Mr. Fontaine agreed to this, but shortly thereafter, Mr. Westmoreland called Respondent and directed that he take the test. According to Respondent, Westmoreland said he didn't care where Respondent got the money to do so. Though the discussion between the two men became heated, the test was done. In December, 1991, Respondent received the letter stating he was no longer enrolled under the supervision of the PRN and was being reported for noncompliance. He claims that when he called the Network about this, they would not discuss it with him, merely stating he was out. When the Department started its investigation, Respondent spoke with the investigator, Mr. Hannah, and requested he be informed of what was determined. He claims he never received any notice from either the Department or PRN. He subsequently found out it had been determined he had done nothing wrong, but the Network sent him a new contract anyway. This last contract included the requirement for courtesy. Because Respondent felt he had done nothing wrong, he refused to sign it and wrote the letter setting out what he would agree to do and what he would not agree to. He has not received any response to that letter and as far as he is concerned, is still waiting. He believes he has been cancelled from the program, and without the new contract, he is not a part of the Network and has no requirement to cooperate in a program in which he is no longer enrolled. Respondent claims he does not refuse to cooperate but wants a contract which incorporates his terms as he outlined them in his August, 1992 letter to Dr. Goetz. In addition, since he feels he did nothing wrong, he wants an apology from someone. He asserts he has complied with the terms of the Board's Order in that he passed the test and has successfully cooperated with and complied with the requirements of the network as he understood them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that The Board of Medicine enter a Final Order in this case finding that Respondent, Leonard T. Campbell, violated the provision of Section 468.365.(1)(i), Florida Statutes, by failing to successfully participate in the PRN program mandated by the Board's Order of January 23, 1990, imposing a reprimand, and revoking his certification as a respiratory therapist technician, such revocation being suspended for two years conditioned upon his execution of an advocacy contract with the PRN, successful compliance with the terms and conditions of that contract, and such other conditions as the Board deems appropriate to the circumstances. RECOMMENDED this 11th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of May, 1994. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211-7466 Leonard Campbell, R.T.T. 8215 North 9th Street Tampa, Florida 33604 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated sections 456.072(1)(q) and 456.072(1)(hh), Florida Statutes (2010),1 and, if so, what discipline should be imposed.
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 that Ms. Elwell violated sections 456.072(1)(q) and 456.072(1)(hh) and revoking her registered nursing license. DONE AND ENTERED this 6th day of March, 2012, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2012.
