The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Since July 1993, and at all times material to this case, the Respondent has been licensed as a registered nurse holding Florida license number RN-2711762. On April 27, 1999, the Respondent was employed as a nurse by "Qwest, Inc." On April 27, 1999, the Respondent submitted to an employer-ordered drug screening at her workplace. The drug screen was conducted by use of a urine sample collected by Kenneth Stanley. Mr. Stanley owns and operates a business that specializes in collection of urine samples for purposes of drug screens. Mr. Stanley utilized the sample collection guidelines adopted by the "Florida Drug Free Workplace" program and the Florida Department of Transportation. Upon arriving at "Qwest, Inc." Mr. Stanley secured the rest room where the urine samples would be taken by placing blue dye in the toilet water and covering the faucet with a surgical glove secured with tape. Apparently, the purpose of the process is to prohibit the contamination of a urine sample by dilution. Mr. Stanley set up a table in the area outside the rest room to permit the processing of the samples and the completion of paperwork. Mr. Stanley called the Respondent into the area and verified her identification. He began to complete paperwork identifying the Respondent. Mr. Stanley removed a plastic cup from a sealed package that was opened for use in obtaining the sample from her. He provided the cup to her and asked her to enter the rest room, fill the cup to the proper level, set the cup on the sink counter, and then exit the rest room without washing her hands or flushing the toilet. Mr. Stanley retrieved the cup immediately after the Respondent notified him that she had completed the process and brought it back to his table. He placed the sample into a sealed tube and completed the paperwork identifying the sample as having been provided by the Respondent. The protocol utilized by Mr. Stanley requires the sample-provider to remain in the room until all paperwork is completed and the sample is properly sealed and packaged for shipment. The Respondent asserts that she left the room after providing the sample to Mr. Stanley and that Mr. Stanley failed to maintain appropriate security for her sample, permitting it to be contaminated by another employee. The evidence establishes that the Respondent remained in the area and was in the presence of the sample at all times during the collection, sealing and identification process. The Respondent was present when her sample was identified, processed, and packaged for shipment. There is no credible evidence that another employee of "Qwest, Inc." contaminated the Respondent's urine sample or that Mr. Stanley failed to maintain the proper identification of the Respondent's sample from the point of collection through the point of shipment. Mr. Stanley shipped the Respondent's sealed urine sample to Clinical Reference Laboratory (CRL) in Lenexa, Kansas. The sealed sample was received and processed by CRL, which similarly receives and processes approximately one million samples annually for purposes of drug screen testing. In performing urinalysis drug screen tests, CRL initially performs a preliminary test called an "enzyme immunoassay" on a portion of the sample. If the results of the preliminary test indicate the presence of a substance, CRL tests a second portion of the sample using a gas chromatography mass spectrometer to confirm the results of the first test and to quantify the specific amount of drug present in the urine sample. The enzyme immunoassay performed on the Respondent's urine sample indicated the presence of marijuana metabolites. Marijuana metabolites are a chemical substance contained in the Cannabis plant. Cannabis is a controlled substance pursuant to Chapter 893, Florida Statutes. The gas chromatography mass spectrometer test performed on the Respondent's urine sample confirmed the presence of marijuana metabolites and indicated the specific amount of drug present in the urine sample as 28 nanograms of marijuana metabolites per milliliter of urine. Based on the results of the testing at CRL, the evidence establishes that the Respondent's urine sample taken on April 27, 1999 tested positive for marijuana. There is no evidence that the Respondent had a prescription or a valid medical reason for using marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a Final Order reprimanding the Respondent, imposing a fine of $250 and requiring the completion of an appropriate continuing education course related to substance abuse in health professions. The continuing education course shall be in addition to those continuing education requirements otherwise required for licensure. Further, the Final Order should further require that the Respondent participate in an evaluation by the Intervention Project for Nurses (IPN) within 60 days of the issuance of the Final Order, and comply with the treatment recommendations, if any, made by the IPN, or suffer suspension of licensure until compliance with this requirement is established. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Elizabeth A. Hathaway, Esquire Reginald D. Dixon, Esquire Agency for Health Care Administration General Counsel's Office 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Annie Scotto Downs 8708 52nd Street North Tampa, Florida 33617
Findings Of Fact At all times relevant hereto, respondent, Mark C. Alsaker, was a registered nurse having been issued license number 1174892 by petitioner, Department of Professional Regulation, Board of Nursing (Board or DPR). He has been licensed since September 8, 1980. Respondent presently resides at 2972 Southwest 17th Street, Fort Lauderdale, Florida. On November 8, 1984 the Board entered an Order of Reinstatement which reinstated respondent's license and placed it on probation for three years, or to and including November 7, 1987. 1/ Among the terms and conditions contained therein was the prohibition against respondent consuming, injecting or otherwise self-medicating with any legend drug or controlled substance unless prescribed by a duly licensed practitioner. To enforce this condition of probation, the Board required that periodically respondent submit himself to a random urine test. On May 20, 1987 respondent visited DPR's Fort Lauderdale office to give a urine specimen. This was given in the presence of a DPR investigator. The specimen was capped in a container, sealed and placed in a bag. Respondent then initialed the bag and signed the chain of custody form. The bag was thereafter placed in a locked box for pickup by the testing laboratory, SmithKline BioScience Laboratories, Ltd. (SmithKline). SmithKline is an organization that tests urine samples for the presence or absence of various substances. The laboratory performed a qualitative drug profile and an Emit 10 profile on Alsaker's specimen. The former test determines the presence of certain substances in the urine but does not measure the quantity. The latter test is much the same as qualitative testing but is done by automation and is more precise. The testing results reflected a presumptive positive for cannabinoids (marijuana or opiates), a controlled substance. This was confirmed by a gas chromatography mass specimen (GGMS) test, a procedure employing an instrument to confirm the presence or absence of a substance. The GGMS test is considered to be the state of the art in terms of reliability. On September 22, 1987, and under the same conditions as were present on May 20, respondent gave another urine specimen in the presence of a DPR investigator. Using the same testing procedures, SmithKline confirmed the presence of cannabinoids (marijuana or opiates) in respondent's urine. Respondent was advised of both test results. However, he did not ask for a retest although he stated he was not aware of his right to do so. At hearing, respondent contended the tests were not 100 percent accurate and that some error or mix-up must have occurred when his samples were given to the laboratory. He also stated it would be foolish for him to use drugs just before giving a urine sample knowing that the results could violate the terms of probation. However, the contentions as to the unreliability of the testing procedures and the probability of a mix-up occurring were not supported by any independent proof and are contrary to the more persuasive evidence. Respondent is presently employed at a Broward County rehabilitation hospital where he uses his license as a registered nurse. There is no evidence of any complaint by his employer or that he has not adequately performed his job. Other than the two cited instances, there were no other positive test results during the three year probation period. There was no evidence that, by virtue of his using drugs on these two occasions, Alsaker was unable to practice nursing with reasonable skill and safety. Finally, the record is silent as to whether his use of drugs equated to unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 464.018(1)(j), Florida Statutes (1987), and that all other charges be dismissed. It is further recommended that respondent's license be placed on two years' probation, that he regularly attend Alcoholics Anonymous or Narcotics Anonymous meetings during that two year period, and that he submit to random urine tests under such terms and conditions as the Board deems necessary. DONE AND ORDERED this 13th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1988.
The Issue The issues are whether Respondent violated Section 550.2415(1)(a), Florida Statutes, by racing an animal that had Benzoylecgonine, a metabolite of Cocaine, in its body, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating pari-mutuel wagering. At all times material to this proceeding, Respondent held a pari-mutuel wagering occupational license. His current license, No. 20713-1021, is effective until June 30, 2003. Orange Park Kennel Club is located in Duval County, Florida. Petitioner has authorized Orange Park Kennel Club to conduct greyhound racing and pari-mutuel wagering. At all times material to this proceeding, Respondent was the trainer of record for a racing greyhound named "WP's Wrangler." On Wednesday, March 13, 2002, Respondent entered "WP's Wrangler" in the fourth race of the matinee performance at Orange Park Kennel Club. "WP's Wrangler" finished fifth in that race. Immediately after the race, one of Petitioner's employees randomly selected "WP's Wrangler" for a urine test. The urine sample No. 847026, was collected and processed in accordance with established procedures. The urine sample was then sent to the University of Florida Racing Laboratory for analysis. When the laboratory received sample No. 847026, the laboratory staff assigned it a new number, laboratory No. 41734K. The laboratory staff had no information regarding the identity of the trainer or animal from which the sample was collected. Information identifying the trainer and the animal on Petitioner's DBPR Form 503, which is a log of samples collected and shipped to the laboratory, is redacted from the laboratory copy to protect the integrity of the testing process. The University of Florida Racing Laboratory tested the urine sample. Using gas chromatography/mass spectrometry, the laboratory determined that sample No. 847026/laboratory No. 41734K contained Benzoylecgonine, a metabolite of Cocaine. Cocaine is a topical anesthetic and a Class I drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. In a report dated April 12, 2002, the laboratory set forth its finding relative to sample No. 847026. Using the sample card created at the time that the urine sample was collected from "WP's Wrangler," Petitioner identified Respondent as trainer of record for "WP's Wrangler" on March 13, 2002. Cocaine or any derivative thereof is not a permissible substance to be carried in the body of a racing animal like "WP's Wrangler."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order suspending Respondent's license for ten (10) days and imposing a $500 fine. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Mark L. Smith 6043 Park Street Jacksonville, Florida 32205 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
