Findings Of Fact Based on the record evidence and the admissions made by Sandbank at hearing, the Hearing Officer makes the following findings of fact: Stanley Sandbank has been a licensed pharmacist in the State of Florida since 1975 and has actively engaged in the practice of pharmacy in this state since 1982. During the Fall of 1987, Sandbank was employed as a pharmacist at Rite- Aid Discount Pharmacy 2165 in Miami Beach, Florida. Toward the latter part of November of that year, Rite-Aid management received a telephone call from a Drug Enforcement Administration (DEA) agent, who stated that she had obtained a tip from a reliable informant that Sandbank "was selling drugs on the street." The DEA agent suggested that a controlled audit be conducted to ascertain whether these drugs were being misappropriated from the pharmacy at which Sandbank worked. Rite-Aid management followed the DEA agent's suggestion and performed such a controlled audit. The audit was completed on November 25, 1987. It revealed that 154 dosage units of Percocet and 201 dosage units of Percodan were unaccounted for and missing from the pharmacy's inventory of controlled substances. Percocet is a brand name of a "medicinal drug," as defined in Section 456.003(7), Florida Statutes, which contains Oxycodone, a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Percodan is a brand name of a "medicinal drug," as defined in Section 465.003(7), Florida Statutes, which also contains Oxycodone. Because Sandbank was the only pharmacist on duty during the time the audit was conducted, Rite Aid management believed that he was responsible for the shortages that had been discovered. Sandbank initially denied knowing anything about the matter, but later admitted his transgression. As Sandbank freely admitted, he had removed from the pharmacy and delivered to relatives and neighbors the following approximate quantities of controlled substances without first having been presented with a valid prescription and without Rite-Aid having received payment in full for these controlled substances: CONTROLLED SUBSTANCE QUANTITY Valium 10 mg. 300 Diazepam 10 mg. 400 Percodan 375 Percocet 360 Dilaudid 100 Hycodan Syrup 240 Placidyl 750 mg. 30 Valium, Dilaudid, Hycodan Syrup, and Placidyl are brand names of "medicinal drugs," within the meaning of Section 465.003(7). Valium contains Diazepam, which is a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes. Dialudid contains Hydromorphone, which is a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Hycodan Syrup contains Hydrocodone, which is a controlled substance listed in Schedule III of Chapter 893, Florida Statutes. Placidyl contains Ethchlorvynol, which is a controlled substance listed in Schecdule IV of Chapter 893, Florida Statutes. Sandbank kept at least a portion of the money he had been given by this neighbors and relatives for having delivered to them the above-described controlled substances. He therefore reaped a financial gain as a result of his unauthorized and surreptitious diversion of these controlled substances from Rite-Aid Discount Pharmacy #2165.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a Final Order finding that Stanley Sandbank violated Section 465.016(1)(e), Florida Statutes, as alleged in the Administrative Complaint, and imposing the above-described disciplinary action which the Department of Professional Regulation has proposed. DONE and ENTERED this 25th day of April, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1989. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stanley Sandbank 4300 Sheridan Street Hollywood, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth D. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination in this case is whether Respondent’s application of a fair rental value system of property cost reimbursement to Petitioner under the Florida Title XIX Long-Term Care Medicaid Reimbursement Plan is appropriate.
Findings Of Fact Petitioner, CONSULTING MANAGEMENT AND EDUCATION, INC., d/b/a GULF COAST NURSING AND REHABILITATION CENTER (CME), is the licensed operator of a 103-bed nursing home in Clearwater, Florida, which is presently known as GULF COAST NURSING AND REHABILITATION CENTER (GULF COAST). CME participates in the Florida Medicaid Program as an enrolled provider. Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida authorized to implement and administer the Florida Medicaid Program, and is the successor agency to the former Department of Health and Rehabilitative Services, pursuant to Chapter 93-129, Laws of Florida. Stipulated Facts Prior to 1993, the GULF COAST nursing home facility was known as COUNTRY PLACE OF CLEARWATER (COUNTRY PLACE), and was owned and operated by the Clearwater Limited Partnership, a limited partnership which is not related to CME. In 1993 CME agreed to purchase, and did in fact purchase, COUNTRY PLACE from the Clearwater Limited Partnership. Simultaneous with the purchase of COUNTRY PLACE, CME entered into a Sale/Leaseback Agreement with LTC Properties, Inc., a Maryland real estate investment trust which engages in the financing of nursing homes. The Purchase and Sale Agreement between Clearwater Limited Partnership and CME was contingent upon the Sale/Leaseback Agreement and the proposed Lease between CME and LTC Properties, Inc. On September 1, 1993, CME simultaneously as a part of the same transaction purchased COUNTRY PLACE, conveyed the facility to LTC Properties, Inc., and leased the facility back from LTC Properties, Inc. As required, CME had notified AHCA of the proposed transaction. AHCA determined that the transaction included a change of ownership and, by lease, a change of provider. CME complied with AHCA's requirements and became the licensed operator and Medicaid provider for COUNTRY PLACE. Thereafter, CME changed the name of the facility to GULF COAST. After CME acquired the facility and became the licensed operator and Medicaid provider, AHCA continued to reimburse CME the same per diem reimbursement which had been paid to the previous provider (plus certain inflation factors) until CME filed its initial cost report, as required for new rate setting. In the normal course of business, CME in 1995 filed its initial Medicaid cost report after an initial period of actual operation by CME. Upon review of the cost report, AHCA contended that the cost report was inaccurate and engaged in certain "cost settlement" adjustments. During this review, AHCA took the position that CME's property reimbursement should be based on FRVS methodologies rather than "cost" due to the lease. In November of 1995, CME received from AHCA various documents which recalculated all components of Petitioner's Medicaid reimbursement rates for all periods subsequent to CME's acquisition of the facility. In effect, AHCA placed CME on FRVS property reimbursement. The practical effect of AHCA's action was to reduce CME's property reimbursement both retroactively and prospectively. The retroactive application would result in a liability of CME to AHCA, due to a claimed overpayment by AHCA. The prospective application would (and has) resulted in a reduction of revenues. CME is substantially affected by AHCA's proposed action and by Sections I.B., III.G.2.d.(1), V.E.1.h., and V.E.4. of the Florida Medicaid Plan. Additional Findings of Fact The Florida Medicaid Plan establishes methodologies for reimbursement of a nursing home's operating costs and patient care costs, as well as property costs. The dispute in this matter relates only to reimbursement of property costs. CME as the operator of the GULF COAST nursing home facility is entitled to reimbursement of property costs in accordance with the Florida Medicaid Plan. CME as the operator of the GULF COAST facility entered into a Florida Medicaid Program Provider Agreement, agreeing to abide by the provisions of the Florida Medicaid Plan. The Sale/Leaseback Agreement entered into by CME and LTC Properties Inc. (LTC) specifically provides for a distinct sale of the nursing home facility to LTC. LTC holds record fee title to GULF COAST. LTC, a Maryland corporation, is not related to CME, a Colorado corporation. The Florida Medicaid Plan is intended to provide reimbursement for reasonable costs incurred by economically and efficiently operated facilities. The Florida Medicaid Plan pays a single per diem rate for all levels of nursing care. After a nursing home facility's first year of operation, a cost settling process is conducted with AHCA which results in a final cost report. The final cost report serves as a baseline for reimbursement over the following years. Subsequent to the first year of operation, a facility files its cost report annually. AHCA normally adjusts a facility's reimbursement rate twice a year based upon the factors provided for in the Florida Medicaid Plan. The rate-setting process takes a provider through Section II of the Plan relating to cost finding and audits resulting in cost adjustments. CME submitted the appropriate cost reports after its first year of operation of the GULF COAST facility. Section III of the Florida Medicaid Plan specifies the areas of allowable costs. Under the Allowable Costs Section III.G.2.d.(1) in the Florida Title XIX Plan, a facility with a lease executed on or after October 1, 1985, shall be reimbursed for lease costs and other property costs under the Fair Rental Value System (FRVS). AHCA has treated all leases the same under FRVS since that time. AHCA does not distinguish between types of leases under the FRVS method. The method for the FRVS calculation is provided in Section V.E.1.a-g of the Florida Medicaid Plan. A “hold harmless” exception to application of the FRVS method is provided for at Section V.E.1.h of the Florida Medicaid Plan, and Section V.E.4 of the Plan provides that new owners shall receive the prior owner’s cost-based method when the prior owner was not on FRVS under the hold harmless provision. As a lessee and not the holder of record fee title to the facility, neither of those provisions apply to CME. At the time CME acquired the facility, there was an indication that the Sale/Leaseback transaction with LTC was between related parties, so that until the 1995 cost settlement, CME was receiving the prior owner’s cost-based property method of reimbursement. When AHCA determined that the Sale/Leaseback transaction between CME and LTC was not between related parties, AHCA set CME’s property reimbursement component under FRVS as a lessee. Property reimbursement based on the FRVS methodology does not depend on actual period property costs. Under the FRVS methodology, all leases after October 1985 are treated the same. For purposes of reimbursement, AHCA does not recognize any distinction between various types of leases. For accounting reporting purposes, the Sale/Leaseback transaction between CME and LTD is treated as a capital lease, or “virtual purchase” of the facility. This accounting treatment, however, is limited to a reporting function, with the underlying theory being merely that of providing a financing mechanism. Record fee ownership remains with LTC. CME, as the lease holder, may not encumber title. The Florida Medicaid Plan does not distinguish between a sale/leaseback transaction and other types of lease arrangements. Sections IV.D., V.E.1.h., and V.E.4., the “hold harmless” and “change of ownership” provisions which allow a new owner to receive the prior owner’s method of reimbursement if FRVS would produce a loss for the new owner, are limited within the Plan’s organizational context, and within the context of the Plan, to owner/operators of facilities, and grandfathered lessee/operators. These provisions do not apply to leases executed after October 1, 1985. Capital leases are an accounting construct for reporting purposes, which is inapplicable when the Florida Medicaid Plan specifically addresses this issue. The Florida Medicaid Plan specifically addresses the treatment of leases entered into after October 1985 and provides that reimbursement will be made pursuant to the FRVS method.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine based on the administrative complaint in this case, which charges, in general, that he obtained his license through fraudulent misrepresentations and is unable to practice medicine safely because of illness or use of drugs he prescribed for himself illegally under the names of fictitious patients?
Findings Of Fact The Parties Petitioner, the Board of Medicine, created by Chapter 458, Florida Statutes, (the "Medical Practice Act,") is the regulatory authority charged with regulating the practice of medicine in the State of Florida. The Board is within the Agency for Health Care Administration, Section 20.42, Florida Statutes, which, in turn, is within the Department of Business and Professional Regulation. Id. In particular, as is pertinent to this case, the Board has the power to impose disciplinary penalties on a licensee when it finds guilt of any of the grounds set forth in subsection (1) of Section 458.331, Florida Statutes, the "grounds for disciplinary action" section of the Medical Practice Act. Respondent, John Mark Pennington, M.D., is currently a licensee of the Board of Medicine. He has been continuously licensed as a physician in Florida since March 11, 1994. Currently residing in Terra Ceia, Florida, Respondent has a specialty in anesthesiology. He does not, however, presently practice in his specialty. He practices, instead, as a physician in a walk-in medical clinic where he is closely monitored and his access to drugs and medication is completely restricted. The reason for not presently practicing as an anesthesiologist and being closely monitored at the walk-in clinic is the same: an addiction to narcotics. In recovery from the disease of chemical dependency at the time of hearing, and as long as he remains in recovery, Dr. Pennington is not presently impaired as the result of his addiction. Respondent's Checkered Past History of Drug Use Dr. Pennington's use and abuse of drugs spans many years. His illegal drug use began when he was a teenager in high school. In addition to drinking, he was using marijuana, cocaine and other drugs. He continued in college to use drugs, including amphetamines. In 1981, Dr. Pennington graduated from pharmacy school and began work as a pharmacist licensed by the State of Georgia in the City of Savannah. During his employment, he would take from the pharmacy, without the benefit of a medical prescription and without authorization from the pharmacy, certain drugs for his personal use. These included opiate derivatives, Hydrocordone, for example, which are classified as narcotics, as well as amphetamines and amphetamine-like medications such as Ritalin. Sometime in 1981, shortly after he began using narcotics, Dr. Pennington became addicted to them. Dr. Pennington managed to conceal his narcotic addiction from his closest associates, including his former wife, who was employed as a fellow pharmacist with him at the pharmacy in Savannah. In 1985, following an inventory at the pharmacy that indicated a discrepancy in narcotics, Dr. Pennington admitted his drug usage. He went directly into treatment at Willingway Hospital in Statesboro, Georgia where he remained for six weeks until his release. As the result of the discovery and Dr. Pennington's admission, disciplinary proceedings were brought against Dr. Pennington by the Georgia State Board of Pharmacy. The Georgia Administrative Hearing At the hearing during those proceedings, Dr. Pennington acknowledged his addiction. He testified that he knew that he would have to deal with addiction the rest of his life. But, he further testified, thanks to being in recovery as a result of the program at Willingway and a continuing program of treatment, that he was then drug-free and committed to remaining so. Moreover, he testified, that he felt there was no pressure too great to cause him to return to illicit use of drugs. In his view, no pressure was too great because he was committed to the ongoing drug treatment program in which he was then involved. He found the program to be an effective method for dealing with the addiction, a method he had not even known existed prior to his entry into the Willingway program. With regard to the effect the addiction and his behavior had on his life and others, Dr. Pennington testified: There is no way I can really express the guilt I feel and the remorse I feel for what I have done. I just want to do my best, and whatever the Board wants I will follow any direction they want me to go into. I embarrassed my profession by doing this. I almost lost my life, and my family, and my job and everything else. Regardless of what decision is made, I am going to go in the right direction to get my life back to the way it's supposed to be. Petitioner's Ex. No. 4, pgs. 46 - 47. At this same hearing on the Georgia disciplinary proceeding, Dr. Pennington called as witnesses on his behalf his then current employer, Mr. Rupert Heller, and his then wife, Kim Pennington. Mr. Heller testified that he had allowed Dr. Pennington to return to work at his pharmacy as a pharmacist. But the return was subject to certain conditions. The conditions included weekly random urinalyses, direct supervision by other pharmacists, no access to medications and lie-detector tests when requested. Mr. Heller also testified that Dr. Pennington was a competent, conscientious pharmacist who always performed well the duties of his employment. Kim Pennington testified that she had been unaware that Dr. Pennington had used drugs prior to the revelation of early 1985. She also testified about her involvement in Dr. Pennington's treatment program at Willingway, including spending five days at the facility to integrate her into his care and attendance at family counseling sessions. Persuaded by the testimony of Dr. Pennington, his employer and his wife, Kim, and recommendations by the Attorney for the Board, the hearing officer wrote the following in his Initial Decision: The State produced evidence through testimony and the Respondent produced evidence through testimony of witnesses that the Respondent made a mistake in his life and is coping with that mistake in an attempt to overcome his use of drugs and drug abuse. The Respondent moved on his own volition with the help of others to search out and take advantage of programs that would rehabilitate him with respect to overcoming ... drug abuse ... . The Hearing Officer was persuaded to consider any recommendations which were made by the Attorney for the Board in these matters due to the goodwill effort on behalf of the Respondent as well as the assistance and guidance that has been given to the Respondent b[y] said Respondent's present employer.... Exhibit No. 6 attached to Petitioner's Ex. No. 2. Georgia Discipline Following the hearing in Georgia and the initial decision of the hearing officer, the Georgia Board imposed a suspension of Dr. Pennington's license to practice pharmacy for six months, just as the hearing officer had initially decided. But further, again following the lead of the hearing officer's initial decision, the Board suspended enforcement of the suspension for two years during which Dr. Pennington was to be on probation with conditions. Among other conditions of the probation, Dr. Pennington was required to submit to random urinalyses and to attend professional aftercare treatment and counseling. The probationary period was set from December 1985 until December 1987. Medical School After being on probation for a period of eight months, Dr. Pennington, in August of 1986, entered a medical school in the Caribbean on the island nation of Grenada. Dr. Pennington requested the Board of Pharmacy that the conditions of probation be lifted while he was in medical school because of the difficulty in complying with them in Grenada. The request was granted. After his second year of medical school in Grenada, Dr. Pennington transferred to the Medical College of Georgia in Augusta, Georgia. While in medical school in Georgia, Dr. Pennington began working part-time as a pharmacist again. Dr. Pennington did not resume compliance with the conditions of probation imposed by the order of the Georgia Board of Pharmacy. As to its role in overseeing Dr. Pennington, the Georgia Board apparently simply lost track of his case. In any event, the Georgia Board did not follow up to ensure that Dr. Pennington had completed his probation successfully. Resumption of Drug Use During his third year of medical school, while working as a pharmacist again, Dr. Pennington began drinking. Before long, he was taking drugs from the pharmacy at which he was working for his own personal use, again without authorization from the pharmacy or a prescription. Following graduation from medical school, Dr. Pennington undertook his residency at the Ochsner Clinic in New Orleans. His drug use continued. But instead of taking drugs from a pharmacy inventory, Dr. Pennington opted for a method not subject to pharmacy inventories. He wrote prescriptions for them in the names of other persons. Access to More Powerful Narcotics as an Anesthesiologist Respondent began his residency in internal medicine but switched to anesthesiology. The switch was not helpful to Dr. Pennington in terms of controlling his addiction. Now, different drugs, often more powerful, were readily available to him. Among them was Sufenta. To narcotic addicts subject to monitoring who want to resume narcotic use, Sufenta is a drug of choice because it is difficult to detect in bodily fluids. Listed as a controlled substance under Schedule II, Section 893.03(2), Florida Statutes, Sufenta is used primarily for analgesia in surgery. In addition to eliminating physical pain, it produces feelings of well-being and stops emotional pain. It has an effect similar to hydrocodone but it is shorter-acting and much more potent. In fact, Sufenta is the most potent opiate used in medicine today. Dr. Pennington began using Sufenta while a resident in anesthesiology either by injecting it or by inhaling it nasally. His use of this extremely powerful narcotic continued throughout the first half of this decade. Application for Florida Licensure as an M.D. In July of 1993, Dr. Pennington's fiance, Rachel, (now his wife,) assisted him in filling out his application for licensure by the Board of Medicine. Just as Dr. Pennington's previous spouse and other family members had been unaware of his narcotic addiction while a pharmacist prior to entering medical school, Rachel Pennington, too, was unaware that Dr. Pennington was using narcotics. Moreover, she did not know of his past history of drug use or his discipline in Georgia. Rachel Pennington typed the application for Dr. Pennington. Questions 4, 9 and 10 on the application were these: Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct? Are you now or have you ever been addicted to or excessively used alcohol, narcotics, barbiturates, or any other medication? Have you ever voluntarily or otherwise been a patient in a hospital, institution, clinic or medical facility for the treatment of mental/ emotional illness, drug, addiction/abuse, or excessive use of alcohol? Although the correct answer to each of the three questions in Dr. Pennington's case is "yes," the answers he gave on the application to each were "no." Dr. Pennington reviewed and signed the application. At this moment of opportunity to reveal the truth to his fiancee, Dr. Pennington chose to continue to conceal his addiction and past history of both drug use and discipline. The falsified application was submitted to the Board of Medicine in November of 1993. During the hearing in this case, Dr. Pennington was asked on cross examination about his awareness that the application contained misrepresentations: Q You were aware at the time you filled out your licensure application that the answers to those three questions were incorrect, weren't you? A ... I don't think it is adequate to answer the question saying that because of my denial of the disease that I didn't know the question was wrong. I definitely, at some level, knew the question was wrong. Q ... You knew that you had been disciplined before?. A Yes. Q And you knew that you had been in a treatment facility before. A Yes. Q ... Did you consider that you were in a treatment facility because you were excessively using drugs? * * * A Well, I guess to answer that ... I have to say yes, at some level I definitely did. I was not willing to admit that but to answer your question I have to say yes. (Tr. 201). Practice in Florida and Continued Drug Use Dr. Pennington was licensed by the Board of Medicine on March 11, 1994. He continues to hold that license, license number ME 0065888. In June of 1994, Dr. Pennington completed his residency. Shortly thereafter, he moved to Florida to begin practice as an anesthesiologist. He continued to use narcotics. In order to stave off withdrawal symptoms, the onset of which can occur within several hours of using a powerful opiate like Sufenta, Dr. Pennington was forced to use narcotics throughout the day, including while at work. Moreover, he was unable from time-to-time to avoid the side effects of withdrawal, which included chills and diarrhea. To control those symptoms, he used drugs such as Lomotil. Lomotil, like Sufenta and the other opiates Dr. Pennington has used, requires a prescription. Self-prescribing and Fictitious Patients In order to obtain some of these drugs, Dr. Pennington wrote out prescriptions for Bob Pennington (his father), Rachel Pennington (his wife), and Kim Patrick (his ex-spouse), none of whom were patients of his. For example, between November, 1994, and February, 1995, he wrote or called in at least fourteen prescriptions for Hycodan, Lomotil and Tussionex, in the names of the three fictitious patients. In reality, the prescriptions were for himself. The Self-prescribed Medications Hycodan contains hydrocodone bitartrate, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough-relief. The maximum recommended daily dose is 30 milliliters, or six tablets, which consists of thirty milligrams of hydrocodone. Tussionex contains hydrocodone polistirex, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough relief and upper respiratory symptoms associated with allergies or colds. The maximum recommended daily dose is ten milliliters consisting of twenty milligrams of hydrocodone. Hydrocodone is a semisynthetic narcotic antitussive and analgesic with multiple actions qualitatively similar to those of codeine. It is a narcotic with potential, of course, for abuse. It has the potential for abuse because it is an opiate derivative, one that, attached to the morphine or opiate receptor in the brain, produces effects of somnolence and euphoria, as well as suppressing other nerve impulses. Hydrocodone causes one to feel good about oneself, blurs time relationships, and changes a person's perceptions. It can cause lack of attention or cause one to be easily distracted, traits that pose extreme danger to patients under the care of an anesthesiologist. Once a certain level of tolerance is reached with hydrocodone, it causes twitching, nervousness, diarrhea, flushing, chills, goosepimples, and other classic symptoms of narcotics withdrawal. Lomotil contains diphenoxylate hydrochloride, and is a Schedule V controlled substance under Section 893.03(5), Florida Statutes. It is used in the management of diarrhea, a common symptom of narcotics withdrawal. It is also used to control other symptoms of withdrawal such as pain and twitching. The maximum recommended daily dose of Lomotil is eight tablets a day or twenty milligrams. At high doses, it is addictive, causing codeine-like effects. Between November, 1994, and March, 1995, Dr. Pennington was taking approximately 15-20 hydrocodone tablets, that is, 75- 100 milligrams, per day, and 30 to 50 Lomotil tablets or 75 to 125 milligrams per day. These levels of consumption are three to five times the recommended maximum daily dosage. Dr. Pennington was self-administering these substances for several purposes: satisfying his addiction, fending of withdrawal symptoms and controlling withdrawal symptoms he could not avoid. Caught Again On March 24, 1995, Dr. Pennington was questioned by an official of the Drug Enforcement Agency (DEA) and a Pinellas County Sheriff's Office detective regarding the fourteen prescriptions for fictitious patients written in late 1994 and early 1995. The interview took place immediately after Dr. Pennington had completed administering anesthesia during an operative procedure on a patient. Dr. Pennington admitted writing the fraudulent prescriptions. Furthermore, he provided the officers with a syringe containing approximately one cubic centimeter of Sufenta. Dr. Pennington admitted that he had used Sufenta about two hours earlier before administering anesthesia to the patient. Talbott-Marsh On March 25, 1995, the day after the DEA discovered Dr. Pennington was illegally using narcotics, he was admitted to the Talbott-Marsh Recovery System in Georgia, having been referred because of his chemical dependency by the Physicians Recovery Network. An inpatient chemical dependency treatment facility, Talbott-Marsh is specifically designed to meet the treatment needs of chemically addicted health care professionals, especially physicians. Five months after admission, on August 25, 1995, Dr. Pennington was discharged from Talbott-Marsh. He had completed the program successfully. Once again, just as upon successful completion of the program at Willingway, Dr. Pennington was in recovery from the disease of chemical dependency. Addiction: the Disease of Chemical Dependency The Disease and its Stages Chemical dependency or addiction is a chronic illness. An identifiable disease recognized by the medical profession, it is not the result of voluntary behavior. Rather, it is the result of a biogenetic defect, one with which the addicted person is born. Together with introduction into the person's system of a sufficient amount of a mood altering substance, this defect produces addiction. Initially, the disease manifests itself in abuse of the drug. In this early stage, addiction has not yet occurred. As use recurs, however, at some point the person crosses the threshold of addiction. After addiction, the individual becomes more and more preoccupied with obtaining the drug, primarily to avoid withdrawal symptoms when the addiction is not satisfied. The more preoccupied the individual becomes with obtaining the drug, the more avoidance there is of external responsibilities: those related to family, work and self. The disease is characterized by the continued use of the drug in the face of ongoing adversity as the result of the avoidance of external responsibilities. Left untreated, the disease leads to serious consequences: institutionalization due to a number of factors which may include brain damage or uncontrollability, disability, and, in extreme cases, death. Crossing the Wall As the disease progresses, eventually it takes control of not only the individual's use of the drugs but all of the individual's thinking as well. This point is referred by practitioners of addictionology as "crossing the wall." When the addict crosses the wall, the disease is in control. It is not uncommon for an addict who crosses the wall to conceal the drug use from everyone including spouse, other family members, friends, and employers. It is common for an addict who has crossed the wall to lie about drug use and minimize the extent of its effects on the addict's life. The acts of denying, concealing, and lying about drug use are common manifestations of the disease of chemical dependency. They fall into a continuum of symptoms of the disease ranging from denial, which relates to the negative consequences the use is having on the addict, to lying. Physicians as Addicts It is common for physicians addicted to drugs to steal them, divert them, write prescriptions for their own use or engage in other deceptive means of obtaining drugs. The manner used by physicians to obtain drugs is often dependent upon the physician's specialty. Nonetheless, self- prescribing medications is found in almost all of the cases of addicted physicians. Consuming massive quantities of drugs is not unusual for the addicted physician, often, in part, because of ready access to drugs. It is, moreover, a sign of tolerance of the drugs. Even in cases of great consumption, and despite the characteristics of narcotics and opiates, when physicians develop tolerance, they remain able to function well while under the influence of the substance. It is common, therefore, for drug usage to go undetected for long periods of time. Furthermore, with regard to opiates and narcotics, it is often difficult to determine whether a person is using them. There tends to be much less muscular coordination, slurred speech and recent memory deficits as would be observed of persons under the influence of other drugs. An individual addicted to and under the influence of opiates, even a physician practicing in a specialty as demanding as anesthesiology, can appear to be functioning as well as a person not under the influence of drugs. This is the case, in part, because a person addicted to opiates can develop tolerance rapidly. The more powerful the opiate, the sooner tolerance may be developed, as in the case of Sufenta. A physician under the influence of Sufenta can take a massive dose and appear to be basically normal to the untrained eye. Dr. Pennington's Stage of Addiction at the Time of Application Prior to the fall of 1993, that is, the time when Dr. Pennington made out and submitted his application to the Board of Medicine, he exhibited all the symptoms of a person who has crossed the wall. He had concealed his drug use, which at that time had become quite advanced, from his fiancee, his family, friends, and colleagues. He was taking massive quantities of narcotic opiates, yet, to the untrained eye, he was not exhibiting symptoms of a person under the influence. At the time of application, Dr. Pennington was well- thought of by his colleagues in the residency program in Louisiana. He was highly recommended for licensure to the Board of Medicine by the instructors of his residency training program. Treatment, Care and Aftercare Treatment is an important phase of the recovery process. Those suffering chemical dependency generally do well in treatment because of the controlled and structured nature of the treatment environment. The environment is safe. The patient is surrounded by others with similar problems. There is a lot of support both from those suffering the disease as well as from professionals. A successful treatment program must insist that the patient be rigorously honest in order to attain full recovery. Rigorous Honesty Because lying is an integral part of the disease of chemical dependency, a program of recovery demands rigorous honesty. In an effective recovery program, such as the one Dr. Pennington participated in at Talbott-Marsh, the physician is required to face the consequences of addiction and participate in psychotherapy when needed. During the treatment phase, the physician is required to go through identification with the family, have a fourth and fifth step of identifying the history of past defects and telling them to another human being. The Physician Recovery Network The Physician Recovery Network is the program used by the Board of Medicine to monitor physicians impaired by addiction in the State of Florida under Section 455.261, Florida Statutes. The Physician Recovery Network ("PRN,") assists the physician in developing and maintaining a manner of living which demands rigorous honesty. PRN does this by requiring the physician to enter into an Advocacy Contract, a five year contract that can be extended if necessary. The Advocacy Contract is designed to serve as a deterrent, promote honesty, to verify through face-to-face conferences and monthly and weekly meetings and periodic urine screens, that a physician is progressing or improving and is not endangering the public or him or herself. Physicians are required to identify the consequences of their drug use and admit their powerlessness over their ability to stop using drugs. Rigorous honesty is demanded by PRN from its participants because it is absolutely required in order to break denial and to prevent rationalization and denial from returning to the behavioral patterns of the addicted physician. PRN educates physicians about the negative behavioral patterns of their disease and monitors the physicians for the return of erratic behavior or evidence of returning denial or evidence of lying. PRN educates physicians about their own indicators for relapse so that they avoid positions likely to produce relapse and so that they will not be unconsciously driven to resume drug use to relieve personal discomfort. PRN monitors its physician participants through local group facilitators. Monitors are assigned because of geographic proximity that will allow immediate access in order to provide counseling. Initially, the PRN monitor undertakes a direct physical evaluation of the physician and becomes familiarized with the physician's specific problems to allow early identification of developing problems that would endanger the public or the physician. In addition, the monitor maintains close contact with PRN. Reports to PRN are made at least weekly providing information about general progress, insight, attentiveness, responsiveness to urine screens, participation in group sessions, openness of the physician, assessment of honesty, and assessment of coping skills. The contact between the monitor and PRN is so comprehensive that it can be characterized as an ongoing dialogue about all aspects of the physician related to management of the addiction and the medical-legal implications for the physician's practice and protection of the public. The monitor is also charged with providing the participating physician with support. If a physician fails to comply with PRN instructions or relapses, the monitor immediately reports it to PRN so that the physician can be submitted to treatment. If necessary to protect the public in such a case, PRN does not hesitate to report the matter to the Agency for Health Care Administration for entry of an emergency order suspending the license. While some number below 20 percent of physicians who enter PRN require more than one treatment to become firmly committed to recovery, 97 percent of the physicians who enter PRN practice without difficulty after five years. The ninety-seven percent success rate PRN has experienced with addicted physicians is significantly higher than the success after treatment of the general population of sufferers of chemical dependency in returning to lives committed to recovery and free of the problems of addiction. Aftercare Aftercare, the stage of recovery which follows treatment and the diseased physician's entry into recovery, is an essential phase of the recovery process, every bit as important, if not more so, than the initial program of treatment. It must consist of close monitoring with repetitive follow-up. This is provided by PRN. As an aftercare program more highly developed than the aftercare received by Dr. Pennington from Willingway in the previous decade, in part, due to advances in the study of addictionology, PRN provides the type of aftercare that supports recovery as fully as possible in light of the status of addictionology today. For example, the syndrome of "protracted withdrawal from opiates," was not even known to exist at the time Dr. Pennington participated in the Willingway program. The syndrome is the result of the body shutting off its own, natural, manufacture of endorphins and other "internal opiates," necessary to a sense of well-being while taking narcotic opiates and introducing into the body exogenous opiates. As a result, it takes the body several years, a period longer than the initial treatment phase, to begin producing its own internal opiates. In the meantime, the opiate addict will continue to suffer withdrawal symptoms, hence the term "protracted" withdrawal. Unlike the care after the Willingway program, the PRN aftercare program provides treatment for protracted withdrawal. Dr. Pennington's Experience with PRN and Adherence to the Advocacy Contract At least through the time of hearing, Dr. Pennington has maintained a strict adherence to his PRN contract. He has fully complied with monitoring by PRN. He has shown a significant commitment to his program of recovery since entering into the advocacy contract. Since late summer, 1995, PRN has considered Dr. Pennington to be safe to practice under the terms of his advocacy contract with continued monitoring. In making that determination, PRN has considered all of the Respondent's past addictive behavior including the length of his addiction, his ability to function normally while under the influence of opiates and other drugs, lying about drug use, concealing it from family, friends, work colleagues, even the Board, stealing drugs, and self-prescribing. Moreover, PRN has considered his prior discipline by the Georgia Board of Pharmacy, the treatment at Willingway and the failed aftercare in his first effort at recovery. Most importantly, PRN has considered the potential danger Dr. Pennington poses to patients and the public. Because of restrictions imposed upon him by both Talbott-Marsh and PRN, Dr. Pennington is not practicing as an anesthesiologist. He cannot resume that practice until his treatment professionals and PRN agree that it is safe for him to do so. Dr. Pennington is not permitted access to controlled substances. He must utilize triplicate prescriptions, one for the patient, one in the chart, and the other for monitoring. Since leaving Talbott-Marsh, Dr. Pennington has successfully met these requirements imposed for his aftercare from the moment he left Talbott-Marsh: Monitor and addictionologist: Dr. Roger Goetz and a local monitor, Jim Noyes, Ph. D. Primary physician of Marte Kautzler, D.O. Not to return to anesthesiology for at least one year following treatment. Return to Talbott-Marsh for reassessment. Work 40 hours per week maximum. Utilize triplicate prescription pads in his practice. Reside with wife, Rachel, and attend couples therapy as directed by Dr. Noyes. Attend Caduceus and AA, 90 meetings in 90 days, followed by attending at a frequency of four to seven times per week. See Joint Exhibit 1. Board Action Had it Been Aware of the Truth at the Time the Application Was Filed Had the Board been aware at the time Dr. Pennington filed his application that the answers to questions 4, 9 and 10 were inaccurate, Dr. Pennington would have had to appear before the Board's Credential Committee. The Committee would have required a personal appearance of Dr. Pennington and a PRN evaluation. Based on the evaluation and Dr. Pennington's explanation for the inaccuracies in the application, the Committee would have recommended either denial of licensure or issuance of the license. Dr. Pennington is in full compliance with his PRN contract and has demonstrated a strong commitment to his program of recovery and the requirements of PRN. It is likely, based on an analysis of similar cases, that if Dr. Pennington were to apply for a license today, with full disclosure, and under the current circumstances of his good standing in the PRN program, that the Board would grant him a license with conditions. Dr. Pennington's Practice Today Today, Dr. Pennington is employed as a practicing physician at a private walk-in clinic. In addition to the practice of requiring his prescriptions in triplicate, his access to controlled substances is completely restricted and the restriction is closely monitored. The nurses at the clinic maintain the keys which allow access to the drugs. An inventory is conducted in the morning when the facility opens and is matched every day with an inventory done in the evening when the facility closes. A urinalysis to check for recent drug use was performed when Dr. Pennington was hired and random urinalyses are done of all employees, including the owner, from time to time without warning. Dr. Pennington, at the time of hearing, had been subject to two urinalyses. Dr. Pennington is observed at the facility for behaviors that would indicate relapse. At the time of hearing, he had not exhibited any such behaviors. His knowledge of medicine was described by his employer as good. Moreover, Dr. Pennington has shown good clinical judgment in the cases he has encountered as well as excellent skills in dealing with his patients. The Impact of Discipline on Dr. Pennington It would be counter-therapeutic to Dr. Pennington to remove him from the practice of medicine while he is in recovery. In fact, one of the main reasons for the extremely high success rate of PRN's work with physicians suffering from the disease of chemical dependency when compared to the general population of those with the disease, is that the physician is working and his or her license is always at stake. Protection of the Public The department, in an attempt to protect the public, is seeking discipline of Dr. Pennington. Yet, the Board, by not taking emergency action against his license, has conceded that he is not impaired at the moment and so long as he is in recovery. Moreover, by allowing his practice pending this proceeding and not taking emergency action against his license, the Board has determined Dr. Pennington's practice as a physician in a walk-in clinic does not pose an imminent danger to public health safety and welfare.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Dr. Pennington's license to practice medicine be suspended for five years; That the suspension be stayed and that he be placed on probation immediately for at least five years with probation to be extended, if necessary at the end of the five years; That appropriate conditions of the suspension be imposed by the Board to include, at a minimum: No practice of anesthesiology during the period of probation; No access to controlled substances, drugs or medicines requiring a prescription during the period of probation; and, Participation in the Physician's Recovery Network for the entire period of probation. DONE AND ENTERED this 22nd day of November, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 22nd day of November, 1996. COPIES FURNISHED: Monica Felder, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Blvd., Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined are whether Respondent possessed Dilaudid without a legitimate purpose, and whether Respondent is unable to practice nursing with reasonable skill and safety, in violation of section 464.018(1), Florida Statutes, as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Nursing, is the state agency charged with regulating the practice of nursing in the state of Florida, pursuant to section 20.43, and chapters 456 and 464, Florida Statutes. At all times material to this proceeding, Lisa Michelle Jackson was a licensed registered nurse in the state of Florida, holding license number RN 9375240. Respondent’s current address of record is 2358 York Street, Jacksonville, Florida 32207. On Saturday, November 7, 2015, Respondent left work and picked up her minor son from her parents’ house. She drove home, parked at her front door, and lost consciousness. At some point, Respondent’s parents called her cell phone. The phone was answered by Respondent’s son, who advised them of the situation. Respondent’s parents went to her house, and apparently called emergency medical services. EMS personnel arrived on the scene and administered Narcan to Respondent. Narcan is a medication that blocks receptors for opioid-based drugs, and is used to reverse the effects of opioids. It is commonly used when medical personnel suspect a patient of an opioid overdose. Respondent was thereafter transported to St. Vincent’s Riverside Medical Center (Riverside), and admitted with encephalopathy and acute respiratory failure. Respondent had to be placed on a respirator. A urine drug screen was performed, which returned positive for benzodiazepines and opiates. Riverside related the encephalopathy and respiratory failure to a suspected drug overdose. Respondent denied having taken anything containing benzodiazepines. She did indicate that approximately a year earlier she had undergone a tooth extraction, for which her dentist had prescribed Percocet. She had some left over, and testified that she had taken some for back pain several days before November 7, 2015. Respondent was discharged from Riverside on November 9, 2015, at approximately 11:40 a.m. After her discharge from Riverside on November 9, 2015, but later that afternoon, Respondent was speaking with her mother on the telephone. Respondent’s mother did not like the way she sounded, and came to the house. Respondent’s mother believed that Respondent was lethargic, but Respondent admitted only to being tired from her earlier hospital stay. EMS was called, and Respondent was again transported to Riverside, where she was admitted at approximately 5:45 p.m. Her diagnosis on admission was hypertensive disorder. She self-discharged against medical advice, signing the discharge papers at 6:36 p.m. There was no evidence that Respondent’s admission to Riverside on November 9, 2015, was the result of the use or abuse of any substance. On November 20, 2015, Respondent and Carl Nesmith were at Respondent’s residence. Respondent testified that she was experiencing back pain. At some time during the evening, Respondent took three or more Dilaudid tablets. Respondent testified that the tablets belonged to Mr. Nesmith, though the evidence was not sufficient to support a finding to that effect. Nonetheless, by the time of the arrival of the EMS team and her subsequent admission to Riverside as described herein, the tablets were in her possession. Dilaudid is a brand name of hydromorphone, an opioid. Pursuant to section 893.03(2)(a)1.k., Florida Statutes, hydromorphone is a Schedule II controlled substance that “has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.” Respondent did not have a prescription for Dilaudid. At some point during the evening of November 20, 2015, Respondent passed out in her bathroom. EMS was called and dispatched to Respondent’s residence. The inference is that Mr. Nesmith called them, but since Respondent was unconscious, and Mr. Nesmith did not testify, the identity of the caller is not known. More to the point, the identity of the caller is not relevant. When EMS personnel arrived, they found Respondent unresponsive on the bathroom floor. Mr. Gorsuch recognized Respondent’s symptoms, including agonal breathing, as characteristic of an opioid overdose, and administered Narcan to counteract the effects of the suspected drug. The Narcan “worked,” and Respondent regained consciousness. EMS personnel discovered a plastic bag with loose pills in Respondent’s purse. The pills were taken with Respondent as she was transported by EMS to Riverside. Respondent was received at the Riverside emergency room shortly after midnight on November 21, 2015. Her condition was described as “drowsy but arousable with slurred speech.” Upon her arrival at Riverside, Ms. Quartano observed that Respondent was clutching a Ziplock-type bag of pills in her hand. How the pills came to be in her hand was not explained. Whether in her purse or in her hand, the pills were in Respondent’s possession. The pills were provided to Dr. McBride Johnson, who identified the pills as Dilaudid based on their shape, color, and markings. Respondent’s diagnosis upon admission was acute encephalopathy; poisoning by unspecified drugs, medicaments, and biological substances, accidental, initial encounter; and altered mental status. Respondent underwent a urine screening, which returned positive for benzodiazepines. Despite the fact that Respondent knew that she had taken “pills” during the evening in question, she denied to hospital personnel that she had taken any drugs or alcohol. As she had on November 9, 2015, Respondent self- discharged against medical advice, signing the discharge papers at 5:30 a.m. Upon her discharge from the hospital, Respondent was taken into custody by Sergeant Coleman from the Jacksonville Sheriff’s Office. Respondent told Sergeant Coleman that the Dilaudid had been given to her by a friend for back pain, and that she had them for several days. Despite her deposition testimony that she had taken pills allegedly provided to her by Mr. Nesmith, she told Sergeant Coleman that she had taken one of her previously prescribed Percocet tablets, and denied having taken any of the pills given to her by her “friend.” Respondent was then placed under arrest. Respondent’s mother had, for years, taken care of Respondent’s son while Respondent was working, often at night. Between November 2015 and January 2016, Respondent’s parents took over primary care of her son in order to provide him with a more stable environment. There is no evidence that Respondent ever diverted opioids, or any other drugs, from her employer. However, after having been visited by a Department of Health investigator, Respondent’s employer, University of Florida Health - Shands (Shands), first suspended and then, in January 2016, terminated Respondent’s employment as a registered nurse. On February 14, 2016, a Jacksonville Sheriff’s Deputy performed a traffic stop on Respondent after observing her fail to maintain her lane of traffic, stop past the stop bar at a stop light, drive up onto the curb nearly striking a pole, drive onto another curb and nearly onto the sidewalk, and while attempting to negotiate a turn, nearly strike another pole. The deputies called to the scene observed that Respondent had bloodshot eyes, slurred speech, lethargic movements, and that she was unsteady on her feet. She underwent Field Sobriety Exercises but failed to perform them to standard. Respondent testified that she had taken some over-the- counter sleeping medication at least 12 hours before being stopped. She could think of no reason why such medications would have had an effect on her by the time of the stop. Respondent stated that her erratic driving was caused by her vehicle pulling to the right and being difficult to control, which was consistent with her deposition testimony that it was because her car needed an alignment. That explanation was not believable. Respondent was arrested for driving while under the influence. The charges were ultimately reduced to reckless driving, but Respondent was required to attend DUI driving school, attend the DUI Victim Impact Panel, and perform community service. On March 15, 2016, Respondent was walking from her mother’s house to her car when she passed out in her mother’s yard. The Jacksonville Fire and Rescue Department responded, arriving at approximately 12:15 p.m. The EMS personnel administered Narcan to Respondent, and transported her to Baptist Medical Center (Baptist). By the time she arrived, she was able to communicate with medical personnel, and attributed the incident to a fight with her mother, and lightheadedness from not eating that day. Respondent testified that “they told me at the hospital that I had morphine in my system, and I had no morphine.” Respondent’s understanding of what she was told is not substantiated by the Baptist medical records. Thus, the evidence is not sufficient to support a finding that Respondent had morphine in her system on March 15, 2016. Respondent was discharged from Baptist at approximately 1:15 p.m., about an hour after her arrival. Beginning “towards the end of 2015,” and extending “maybe up until March or April [2016], maybe a little later,” Respondent went to the Jacksonville Metro Treatment Center where she received daily methadone treatments in an effort to wean herself off of controlled substances. She “somewhat” received counseling, but the substance of her testimony indicates that the methadone was the driving cause of her visits to the treatment center. She stopped attending the treatment center due to the cost. From April 2016, when she stopped receiving methadone treatment at the Jacksonville Metro Treatment Center, until June or July 2016, Respondent received outpatient Suboxone treatment at Merit Health River Region, which accepts Medicaid. Suboxone is like methadone, but it blocks opioid receptors. Respondent stopped going to River Region because it was hard for her to get there due to transportation issues. Respondent did not complete her treatment, and she was not advised that she was in remission or that she should discontinue her treatment. Respondent has received no substance abuse treatment since she stopped going to River Region. On or about March 17, 2016, Dr. Sanchez evaluated Respondent as allowed by section 464.018(1)(j). The evaluation included not only a face-to-face interview with Respondent, but included a review of records, including medical and law enforcement records, related to each of the incidents described herein. During the evaluation, Respondent advised Dr. Sanchez that she had used opioids “opportunistically” for about 10 years, with her usage being sporadic and impulsive. Respondent further advised Dr. Sanchez that she had used a Fentanyl patch three to four days prior to the evaluation. Pursuant to section 893.03(2)(b)9., Florida Statutes, Fentanyl is a Schedule II controlled substance with the same potential for abuse as Dilaudid. Respondent did not have a prescription for Fentanyl. Dr. Sanchez opined that Respondent’s use of Fentanyl that close to the evaluation, with the risk of detection in the toxicology screen, was an indication of the strength of her addiction. Respondent did not tell Dr. Sanchez about the March 15, 2016, incident during which she passed out in her mother’s yard, an incident that occurred only two days prior to the evaluation. She agreed that the incident would have been relevant to Dr. Sanchez’s evaluation. The failure to disclose the incident is indicative of an evasive attitude towards matters that would reasonably be expected to affect Respondent’s ability to practice nursing with reasonable skill and safety. Dr. Sanchez noted that Respondent had a history of emergency room visits over extended periods of time with different pain complaints, including back pain, abdominal pain related to gastric bypass surgery, and a broken tooth, all of which resulted in recommendations for short-term opiate therapy. Dr. Sanchez opined that Respondent’s actions suggested drug- seeking behavior. However, the maladies described, including a bulging disc from a car accident, and chronic tooth issues including, at the time of the evaluation, an abscess, were diagnosed by physicians, who prescribed pain management medications, and were not illusory. Regardless of whether Respondent’s use of opioids was initiated as a result of a medically-prudent prescription, the evidence is clear and convincing that Respondent’s use has passed to the stage of addiction. Dr. Sanchez opined that the incident on November 7, 2015, when Respondent took some form of opioid and picked up her child on the way home, ultimately losing consciousness at the wheel of her car, was evidence of a strong compulsion to use opioids. Dr. Sanchez’s opinion that this incident indicated a significant lack of judgment and control is credited. The incident on November 20, 2016, is further strong evidence of a growing and dangerous addition. In light of the other incidents described herein, and Respondent’s familiarity with opioids over the years, both as a patient and a nurse, Respondent’s testimony that she did not understand what she was taking that evening is simply not credible. Dr. Sanchez stated the circumstances surrounding Respondent’s February 14, 2016, arrest for driving under the influence is further evidence that Respondent was “losing control” of her addiction. The suggestion that the incident was the result of poor alignment is not credible, particularly in light of Respondent’s appearance and performance during the stop. Dr. Sanchez determined that Respondent refuses to accept responsibility for her behavior and remains in denial of her substance abuse issues, a conclusion that is supported and accepted. As a result of his evaluation, Dr. Sanchez diagnosed Respondent with severe opioid use disorder. He opined that Respondent has significantly impaired judgment due to her substance abuse, which precludes her from functioning as a registered nurse with the necessary skill and safety to patients. His testimony is credited. Dr. Sanchez further opined that Respondent requires an extended period of continuous supervision with monitoring, substance abuse treatment, random toxicology testing, and an extended period of time of documented abstinence from controlled substances before Respondent would be able to practice nursing with sufficient skill and safety to patients. He recommended that Respondent complete a full course of treatment geared to substance abuse and chemical dependency, initially as inpatient treatment, followed by an intensive outpatient program after a reasonable period of abstinence. Finally, Dr. Sanchez recommended that Respondent execute an Intervention Project for Nurses (IPN) monitoring agreement. IPN is the impaired practitioner program for the Board of Nursing, pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department for the protection of the public. Respondent has not entered any form of inpatient treatment, though she indicated that she is currently on a wait- list for inpatient treatment, has discontinued outpatient treatment, and has not entered into an IPN agreement.
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: determining that Respondent violated sections 464.018(1)(i) and 464.018(1)(j); imposing a suspension of license number RN 9375240 for one year and thereafter until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing, with such demonstration to include at least one IPN evaluation in which the evaluator finds Respondent to be able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, as imposed; imposing an administrative fine in the amount of $250.00; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 29th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 29th day of November, 2016. COPIES FURNISHED: Lisa Michelle Jackson 2356 York Street Jacksonville, Florida 32207-3541 (eServed) Rob F. Summers, Esquire Brynna J. Ross, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent is Paula Kay Spears. She is a licensed registered nurse and holds license number 1435502. At all times pertinent to these proceedings, Respondent was employed as a registered nurse at Lakeland Regional Medical Center in Lakeland, Florida. Caren Hicks worked as a unit coordinator in the cardiovascular surgery unit of the hospital where Respondent was also employed as a registered nurse. Hicks and Respondent worked together for approximately five years. In April of 1988, Hicks witnessed Respondent using for the first time what Hicks believed to be a drug commonly called "crank". Hicks also used the substance on that occasion. Hicks purchased the substance from Respondent on only one later occasion; although she and Respondent engaged in joint use of the substance on several subsequent occasions. They ingested the substance by "snorting" it through the nose. Hicks provided crank on some occasions for the joint use of herself and Respondent. The two used the drug while on duty in the cardiovascular unit to which they were assigned. The last occasion of their joint usage of the drug was September 11, 1988. When she nasally inhaled the drug, Hicks observedthat her pulse rate and energy level increased. While she experienced fatigue when the effects of the drug wore off, Hicks never experienced any sense of confusion. She compared the effects of the substance to that of a drug commonly called "speed". Tommy Smith is the head nurse for the cardiovascular unit where Respondent and Hicks were employed in September of 1988. He confronted Respondent with the accusation that she and Hicks had used crank while on duty. Respondent denied the charge. Smith offered Respondent continued employment in her position, provided she submit to drug screening and rehabilitative treatment for drug abuse. Respondent rejected the offer. Subsequently, Respondent's employment with the hospital was terminated. Later, Smith made the same offer to Hicks. Hicks accepted the offer, attended a drug rehabilitation program and is still employed at the hospital. Expert testimony of Martin Zfaz, M.D., establishes that crank is a form of methamphetamine, a central nervous system stimulant which is regulated in accordance with Chapter 893, Florida Statutes, as a controlled substance and a schedule II drug. Crank, over a period of time, can cause confusion in the user's mental acuity. Depression follows use of the drug when its effects wear off. Usage can lead to dependence, with the possibility of resultant acute psychosis. Poor, impaired or confused judgement in the user can result. The substance is highly addictive, with limited medical use. Medical uses for crank include treatment for narcolepsy and hyper- activity in children. The substance is also prescribed as a balance to phenobarbital medication of epileptic patients. Although it depresses appetite, its usage for this purpose has decreased. Use of crank would have a negative effect on a medical nurse's judgement and performance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent in violation of Section 464.018(1)(i) and Section 464.018(1)(h), Florida Statutes. IT IS FURTHER RECOMMENDED that such Final Order suspend Respondent's license pending Respondent's completion of a drug dependency evaluation and provision by her of a report of that evaluation to the Board and demonstration to the Board that she is capable of safely practicing the profession of nursing. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probationary status for a period of three years upon satisfaction of the foregoing requirements for termination of license suspension with specific conditions of such probation to include periodic drug dependency reevaluations and reports as may be determined by the Board and payment of an administrative fine of $500. DONE AND ENTERED this 3rd day of November, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-2. Accepted. 3. Weight of the evidence demonstrates that Respondent ingested the drug by "snorting" it. Finding rejected. 4.-14. Accepted 15. Rejected. Not consistent with the weight of the evidence. 16.-17. Rejected, unnecessary to result reached. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Michael A. Mon), Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Paula Kay Spears 1240 Sarasota Avenue Lakeland, FL 33805 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201
The Issue Whether respondent committed the acts alleged in the Administrative Complaint, and, if so, whether respondent's license should be revoked or suspended, or whether other discipline should be imposed.
Findings Of Fact Respondent is a licensed pharmacist in the State of Florida, having been issued license number 005517, and was so licensed at all times material to the Administrative Complaint. The respondent is engaged in the practice of pharmacy at Interbay Discount Drugs, 4332 South Manhattan, Tampa, Florida, where he is the proprietor and the sole pharmacist. On April 23, 1986, Ms. Beth Christie, investigation specialist for the Department of Professional Regulation, conducted a pharmacy inspection of Interbay Discount Drugs. During the pharmacy inspection, Ms. Christie reviewed certain documents, including the Certified Exempt Narcotic Record of Retail Sales maintained by Interbay Discount Drugs. This record, or log, is required to be maintained by a pharmacist to reflect the pharmacist's dispensing of Schedule V drugs. The log must show to whom the Schedule V drug was dispensed, the date it was dispensed, and identify the dispensing pharmacist. The log is used to ensure that certain amounts of exempt drugs are not dispensed to the same customer within a 48-hour period. Since respondent was the sole pharmacist at Interbay Drugs, all the log entries are followed by his initials. Ms. Christie initially reviewed the log while conducting her inspection at Interbay Discount Drugs. She noticed the same names appearing over and over again throughout the log which covered approximately a two-year period. Subsequently, Ms. Christie reviewed the log more extensively and prepared a patient profile for Cynthia D. Anderson and Vester L. McDaniel based on the information contained in the log. The patient profiles contained the date the drug was dispensed to the patient, the drug dispensed, and the quantity. The patient profile revealed that Vester L. McDaniel received Robitussin AC, 2 oz., on the following dates in the 1 1/2-year period from November 30, 1984, through April 21, 1986: 11-30-84 04-25-85 08-20-85 11-21-85 02-08-86 12-04-84 04-27-85 08-22-85 11-23-85 02-10-86 12-11-84 05-02-85 08-24-85 11-26-85 02-12-86 12-15-84 05-07-85 08-27-85 11-30-85 02-14-86 12-20-84 05-11-85 08-29-85 12-03-85 02-17-86 12-22-84 05-16-85 09-02-85 12-04-85 02-18-86 12-27-84 05-21-85 09-05-85 12-07-85 02-21-86 12-31-84 05-25-85 09-07-85 12-10-85 02-24-86 01-05-85 05-27-85 09-10-85 12-12-85 02-26-86 01-10-85 05-29-85 09-12-85 12-14-85 02-28-86 01-15-85 06-03-85 09-14-85 12-17-85 03-03-86 01-22-85 06-07-85 09-17-85 12-19-85 03-10-86 01-29-85 06-11-85 09-21-85 12-21-85 03-12-86 02-02-85 06-15-85 09-26-85 12-23-85 03-14-86 02-06-85 06-18-85 10-01-85 12-26-85 03-17-86 02-09-85 06-22-85 10-03-85 12-28-85 03-19-86 02-12-85 06-28-85 10-08-85 12-31-85 03-21-86 02-16-85 07-02-85 10-10-85 01-02-86 03-24-86 02-18-85 07-06-85 10-12-85 01-04-86 03-26-86 02-21-85 07-09-85 10-14-85 01-06-86 03-28-86 02-23-85 07-13-85 10-15-85 01-08-86 03-31-86 02-26-85 07-16-85 10-22-85 01-11-86 04-02-86 03-01-85 07-18-85 10-24-85 01-14-86 04-04-86 03-05-85 07-20-85 10-26-85 01-16-86 04-06-86 03-08-85 07-23-85 10-29-85 01-18-86 04-09-86 03-14-85 07-30-85 10-31-85 01-20-86 04-11-86 03-18-85 08-01-85 11-02-85 01-22-86 04-14-86 03-23-85 08-03-85 11-05-85 01-24-86 04-17-86 04-04-85 08-06-85 11-07-85 01-27-86 04-19-86 04-06-85 08-08-85 11-09-85 01-29-86 04-21-86 04-10-85 08-10-85 11-14-85 01-31-86 04-18-85 08-13-85 11-16-85 02-03-86 04-20-85 08-17-85 11-19-85 02-06-86 In addition to the above, Mr. McDaniel received Terpin Hydrate with Codeine on September 19, 1985, and November 12, 1985. The record reveals that Mr. McDaniel received Robitussin AC, 2 oz., on October 14 and 15, 1985, and on December 3 and 4, 1985. The quantity of codeine contained in the Robitussin AC dispensed to Mr. McDaniel by respondent within the 48-hour period from 10-14-85 to 10-15-85 and the 48-hour period from 12-3-85 to 12-4-85 exceeded 120 milligrams. The patient profile of Cynthia D. Anderson revealed that Ms. Anderson received Robitussin AC, 2 oz. on February 24, 1984, and received Novahistine DH, 2 oz., on the following dates in the 2-year period from April 14, 1984, to April 23, 1986: 04-25-85 09-04-85 12-09-85 02-21-86 04-14-84 04-29-85 09-06-85 12-11-85 02-24-86 04-20-84 06-29-85 09-09-85 12-13-85 02-26-86 05-04-84 07-02-85 09-11-85 12-16-85 02-28-86 07-31-84 07-06-85 09-13-85 12-21-85 03-03-86 08-23-84 07-09-85 09-16-85 12-23-85 03-05-86 09-05-84 07-11-85 09-18-85 12-30-85 03-07-86 09-08-84 07-13-85 09-20-85 01-01-86 03-10-86 10-11-84 07-15-85 09-23-85 01-03-86 03-12-86 10-13-84 07-17-85 09-30-85 01-07-86 03-14-86 10-16-84 07-22-85 10-02-85 01-10-86 03-17-86 10-23-84 07-24-85 10-04-85 01-13-86 03-19-86 11-01-84 07-26-85 10-07-85 01-14-86 03-21-86 11-15-84 07-29-85 10-09-85 01-16-86 03-24-86 11-17-84 07-31-85 10-11-85 01-20-86 03-26-86 12-07-84 08-02-85 10-15-85 01-22-86 03-28-86 12-27-84 08-07-85 10-17-85 01-24-86 03-31-86 01-28-85 08-09-85 10-21-85 01-27-86 04-02-86 01-30-85 08-12-85 10-23-85 01-29-86 04-04-86 02-06-85 08-14-85 10-25-85 01-31-86 04-06-86 02-12-85 08-16-85 10-29-85 02-03-86 04-08-86 02-15-85 08-20-85 10-31-85 02-05-86 04-10-86 02-18-85 08-22-85 11-18-85 02-07-86 04-14-86 02-21-85 08-24-85 11-22-85 02-10-86 04-14-86 04-06-85 08-26-85 11-27-85 02-12-86 04-18-86 04-09-85 08-28-85 12-02-85 02-14-86 04-21-86 04-11-85 08-30-85 12-04-85 02-17-86 04-23-86 04-23-85 09-02-85 12-06-85 02-19-86 As the above shows, respondent dispensed Novahistine DH, 2 oz., to Ms. Anderson twice on April 14, 1986. 2/ The quantity of codeine contained in the Novahistine DH dispensed to Ms. Anderson on April 14, 1986, exceeded 120 milligrams. Ms. Christie asked respondent about the repeated dispensing of Robitusin AC and Novahistine DH to Mr. McDaniel and Ms. Anderson, and respondent stated that both complained of a chronic cough. However, Ms. Christie observed Ms. Anderson, who happened to purchase Novahistine DH while Ms. Christie was performing her inspection, and Ms. Anderson did not cough at all while she was in the store. Respondent also told Ms. Christie that he continued to provide the drugs to Ms. Anderson and Mr. McDaniel because "they were regular customers and purchased other items in his store [and] it would be awkward for him to refuse to sell the exempt narcotics to them." [T-30] Codeine is a very potent narcotic, and it can be addictive. Approximately 60 milligrams of codeine are contained in one ounce of Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine. Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine, in two ounce quantities, are Schedule V controlled substances. No more than two ounces of these drugs can be dispensed by a pharmacist to the same person within a 48-hour period without a prescription. Although Robitusin AC, Novahistine DH, and Terpin Hydrate with Codeine are cough depressants, there are much better things for people with chronic coughs than cough depressants that contain narcotics. A pharmacist who is presented with a request for Robitusin AC, 2 oz., by the same customer every two or three days should be very concerned and cautious. First, the pharmacist should be concerned about the health of the customer. A chronic coughing problem over a period of time should be treated professionally by a physician, not a pharmacist. A pharmacist should advise the customer to see a physician and refuse to sell the customer any more of the drug. Second, the pharmacist should be cautious because of the potential for abuse of the drug. It would be prudent for a pharmacist to refuse to dispense the drug after about three requests within a short period of time. To dispense Robitusin AC regularly over a two-year period cannot be considered dispensing the drug in good faith as a medicine. Any pharmacist dispensing the drug in good faith as a medicine would cease such regular dispensing of the drug long before two years had elapsed. The dispensing of Robitusin AC, 2 oz., and Terpin Hydrate with Codeine to Mr. McDaniel from November 30, 1984, to April 21, 1986, was not in good faith as a medicine. Novahistine DH is a essentially the same drug as Robitusin AC but made by a different company. The dispensing of Novahistine DH to Ms. Anderson from April 14, 1984, to April 23, 1986, was not in good faith as a medicine. Respondent admitted that he used poor judgement in dispensing the drugs to Mr. McDaniel and Ms. Anderson, but he denied that he dispensed the drugs not in good faith as a medicine. Mr. McDaniel was a heavy smoker and had a chronic cough. Respondent stated that he was just not aware that Mr. McDaniel had been receiving Robitusin AC for the period of time that he had. Respondent stated that Ms. Anderson had a family history of chronic bronchitis and respondent felt the medication was needed. Respondent also stated that he did not sell more than two ounces of either Robitusin AC or Novahistine DH to Ms. Anderson or Mr. McDaniel within a 48-hour period, although he admitted that his log reflected that such had occurred. Respondent contended that the customers had written in the wrong dates.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Board of Pharmacy enter a final order finding respondent committed those acts set forth in Counts I, II, III, and IV of the Administrative Complaint, imposing an administrative fine of $200 for each of the four counts, for a total fine of $800, and placing the respondent on probation for a period of one year under such terms and conditions as the Board may deem appropriate. DONE and ORDERED this 17th day of April 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1987.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, 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 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Among the many issues in Case No. 00-3900BID, there are three main issues: whether it was proper for the Division of State Group Insurance ("DSGI" or the "agency") to reject and return unopened the response of Petitioner MedImpact Healthcare Systems, Inc., to DSGI's Invitation to Negotiate (the "ITN") for pharmacy benefits management services? If not, and the response should have been accepted and opened, whether DSGI's selection of an ITN as the method for soliciting suppliers eligible to provide pharmacy benefits management services for DSGI is an issue properly in the case? Finally, whether Merck-Medco Managed Care L.L.C. ("MMMC") has standing to intervene in this proceeding?
Findings Of Fact The State Group Insurance Program The State Group Insurance Program (the "Program") is established in Section 110.123, Florida Statutes. Its purpose is the provision of a comprehensive package of health care benefits to state employees. Responsibility for management, administration, and procurement for the Program is assigned to the Division of State Group Insurance ("DSGI") in the Department of Management Services ("DMS"). Program members include active state employees, retired state workers, surviving spouses of employees or retirees, persons eligible for COBRA, and eligible dependents. It is the intention of DSGI that the Program's benefits be offered to members in a cost-efficient and prudent manner and that members be given a choice of benefits that best meets their individual needs. The Division of State Group Insurance, therefore, offers two options to members. One of the options is a preferred provider organization (the "PPO Plan"). The PPO Plan is "a self-insured plan offering health care benefits administered by Blue Cross and Blue Shield of Florida (BCBSF) and prescription drug care benefits administered [at the time the procurement commenced in this proceeding] by Eckerd Health Services (EHS)." (Joint Exhibit 2, p. 1, Section 1.0, OVERVIEW, Subsection 1.1). With regard to pharmacy benefits management under the Plan, the State's objective, inter alia, is "to ensure that PPO Plan participants have access to high quality pharmacy benefits that are provided in a cost-efficient manner." (Joint Exhibit 2, p. 1, Section 1.2). With that objective in mind, DGSI, on April 3, 2000, sought proposals from pharmacy benefits management organizations licensed to do business in the State of Florida. The procurement method by which the proposals were sought was an Invitation to Negotiate (an "ITN"), one of the solicitation methods used by the state of Florida when procurement is competitive. Competitive Procurement Solicitations When a state agency wants to procure commodities or contractual services subject to competition, there are three main methods of solicitation: Invitations to Bid ("ITB"), Requests for Proposals ("RFP") and Invitations to Negotiate ("ITN"). The first two, ITBs and RFPs, enjoy the status of specific recognition in statute: (11) "Invitation to bid" means a written solicitation for competitive sealed bids with the title, date, and hour of the public bid opening designated and specifically defining the commodity, group of commodities, or services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously. The invitation to bid is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities required. * * * (15) "Request for proposals" means a written solicitation for competitive sealed proposals with the title, date, and hour of the public opening designated. The request for proposals is used when the agency is incapable of specifically defining the scope of work for which the commodity, group of commodities, or contractual service is required and when the agency is requesting that a qualified offeror propose a commodity, group of commodities, or contractual service to meet the specifications of the solicitation document. A request for proposals includes, but is not limited to, general information, applicable laws and rules, functional or general specifications, statement of work, proposal instructions, and evaluation criteria. Requests for proposals shall state the relative importance of price and any other evaluation criteria. Section 287.012, Florida Statutes. A bid that conforms in all material respects to the invitation to bid and is submitted by a qualified bidder is a "[r]esponsive bid." Section 287.012(16), Florida Statutes. Similarly, a proposal that conforms in all material respects to a request for proposals submitted by a qualified proposer is a "responsive proposal." Id. Invitations to negotiate do not enjoy the status of specific statutory recognition. The term "invitation to negotiate" is currently defined by a DMS rule that was amended effective January 2, 2000, three months or so before the ITN in this case was issued. The current rule provides both a definition of "invitation to negotiate" and requirements to be met when such an invitation is selected as the solicitation document for procurement: (2) Invitation to Negotiate - Competitive solicitation used when an Invitation to Bid or Request for Proposal[s] is not practicable. Agency shall document file as to conditions and circumstances resulting in this decision. Rule 60A-1.001(2), Florida Administrative Code. This definitional section contains the only criteria expressed in agency rules "for the selection of an invitation to negotiate as the chosen method for procurement." (Petitioner's Exhibit 16, Barker Deposition, pgs. 13-14.) A submission in response to an ITN is referred-to by DMS in its ITN Acknowledgement Form as a "negotiation." (See Joint Exhibit 2a). If a submission pursuant to an ITN is not unresponsive, it is denominated a "responsive negotiation." As testified to by Mr. Barker, the concept of an "invitation to negotiate" grew out "of a very large contract the state entered into some years back [when] . . . it became apparent that the invitation to negotiate would give agencies latitude, particularly in very complex, difficult procurements, an opportunity to at least structure how they were going to go out and negotiate and lend to them general conditions to be considered in this negotiation process." (Id., at 15-16.) Indeed, an "invitation to negotiate" provides greater flexibility than the other two competitive solicitation methods just as an RFP provides more flexibility over an ITB. This flexibility is advantageous not just for the State but for the vendors and suppliers as well. For example, one of the main advantages of the ITN over an RFP is that when the highest ranked negotiator and the state cannot reach a contract, the next ranked negotiator can be considered. By way of comparison, when the highest ranked proposer to an RFP cannot reach a contract with the agency, the procurement process must begin anew. Beginning anew will often greatly delay ultimate procurement for commodities or services needed by the state and can be extremely frustrating for the proposer next-in-line who has submitted a responsive proposal. Hence, when appropriate for use, a state agency may very well choose an ITN as its solicitation method. Vendors of commodities and suppliers of services, moreover, may be reluctant to contest the agency's selection of an ITN because they know that if they are next-in- line after a higher-ranked vendor or supplier is unable to reach a contract, then they have a chance at a contract much sooner than if the procurement process begins anew. Non-rule Requirements for ITNs prior to the existing rule Although ITNs are not specifically recognized in statute, the state has authority in statute to negotiate in competitive procurement. In order for invitations to negotiate to "happen without a rule [the Bureau of Procurement and Contract Management in DMS] put in place a memorandum that instructed agencies . . . to ask for authority to negotiate." (Id., at 16). The memorandum was prepared and drafted by H.P. Barker, Jr., Chief of the Bureau of Procurement and Contract Management, the bureau in DMS "responsible for contracting for personal property that's used by the state in large volume." (Petitioner's Exhibit No. 16, Deposition of H.P. Barker, Jr., 3). Ultimately, the memorandum was published June 15, 1998, by George C. Banks, CPPO, Director of State Purchasing. DMS Memorandum No. 21-(97-98), in pertinent part, reads: The purpose of this memorandum is to clarify the current procedure for an agency to use an Invitation to Negotiate as an alternative process to Invitation to Bid or Request for Proposal. Until a revision is made to our current rules, agencies cannot proceed with an Invitation to Negotiate without prior approval from this office. However, an agency head may make a one-time request for this authority. Upon approval, the attached procedures are to be utilized in this process and agencies may proceed in the same manner they do when selecting an invitation to bid or request for proposal. (Petitioner's Exhibit No. 3, emphasis supplied.) Selection of ITNs by DSGI in the Midst of Changing Rules - DSGI's Chief of the Bureau for Policy and Development: Dr. Phillips After a career beginning in 1981 as an agricultural economist followed by work as a health care economist and consultant doing research in the health care field, Susan Phillips, Ph.D., came to work for DSGI in July of 1998. She remains today in the position for which she was hired: Chief of the Bureau for Policy and Development. Her duties include the procurement of insurance and related products. At the time Dr. Phillips commenced employment with it, DSGI, was in the Executive Office of the Governor. Its statutory duties and staff soon thereafter were transferred to DMS by an act of the legislature. The transfer was effective July 1, 1999. See Section 110.123, Florida Statutes. - The January 1999 ITN In January of 1999, Dr. Phillips was appointed by Charles Slavin, Director of DSGI, as the Issuing Officer for the procurement of a health insurance management information system and related services. To the best of Dr. Phillips' recollection, she recommended to Director Slavin that the solicitation be by ITN and "he agreed." (Petitioner's Exhibit 15, p. 38). The recommendation and the approval by the director were not written but communicated in oral conversation, most likely in Director Slavin's office. The conversations were not memorialized. Following the approval, Director Slavin sent a letter to the Director of State Purchasing, Mr. Banks. The letter, drafted by Bill Dahlem and reviewed and approved by Dr. Phillips, is dated January 4, 1999. About the choice of an ITN for solicitation, the letter states: We are seeking authority because we have determined that the Request for Proposal process is not the most appropriate means for securing the commodities and services desired. We believe the Invitation to Negotiate method is more appropriate because the commodities and services we are seeking can be provided in several different ways. Also, the contractor's qualifications and the quality of the commodities and services provided are at least as important as the contract price. (Petitioner's Exhibit No. 4, emphasis supplied). Dr. Phillips' intent with regard to the letter "was to comply with all rules and regulations." (Petitioner's Exhibit No. 15, p. 53). The rule in effect at the time of the selection of the January 1999 ITN and governing such selection was Rule 60A-1.018, Florida Administrative Code. In pertinent part, it states: 60A-1.018 Procedures for Negotiation of Contracts for Purchases of Commodities/Contractual Services. * * * Negotiation of Contracts Without First Seeking Competitive Sealed Bid/Proposals Exceeding the Threshold for Category Two -- When determined to be in the best interests of the State, the Division may contract by negotiation or may delegate to any agency the authority to contract by negotiation. When contracting by negotiation, the following procedures shall be followed: An agency seeking delegated authority to negotiate a contract shall submit a request in writing to the Division, detailing the necessity to contract by negotiation, the proposed steps to be followed by the agency in negotiating the contract, and the proposed vendors that will be used in the negotiations. The Division's intended decision to contract by negotiation or to delegate to an agency the authority to contract by negotiation shall be posted in the office of the Division. Any person adversely affected by the Division's intended decision may protest in accordance with Rule 60A-1.006(3), F.A.C. (Rule 60A-1.018 was repealed prior to the selection of the ITN with which this case is concerned.) The Invitation to Negotiate (the "January 1999 ITN") was duly issued. When the January 1999 ITN was issued it was accompanied by "PUR Form 7006." The form included a "notice of protest rights" (Petitioner's Exhibit No. 15, p. 51). The notice provided a "point of entry" into administrative proceedings for parties who might choose to contest the selection of the January 1999 ITN as the solicitation method for the procurement. - Selection of the ITN in this case In March of 2000, Dr. Phillips was named as the Issuing Officer for the procurement of the pharmacy benefits management services in conjunction with the PPO Plan. The decision to solicit suppliers of the services by ITN was made around the time she was named the Issuing Officer. The decision to use an ITN came about through a multi- step process. Just as in the case of the January 1999 ITN, Dr. Phillips recommended to the Director of the Division, Charles Slavin, that an ITN be used. He concurred and authorized its use. Both the recommendation from Dr. Phillips and the authorization by Director Slavin were done in oral conversation rather than in writing. As before, in the case of the January 1999 ITN, the conversation was not memorialized as to either the recommendation or the approval. Unlike in the case of the January 1999 ITN, however, no request was made by DSGI or any other DMS personnel in writing to the Division of State Purchasing, as had been done through Mr. Banks' letter on January 4, 1999, for the January 1999 ITN. It was the understanding of Dr. Phillips in the spring of 2000 that a written request and written approval from the Division of State Purchasing were not required. Ms. Phillips' understanding was based in part on another conversation held the year before when she received approval for the January 1999 ITN. This conversation was between Dr. Phillips and H.P. Barker, Jr., Chief of the Bureau of Procurement and Contract Management for DMS. It took place in January of 1999. During this conversation, Dr. Phillips requested and was granted approval in writing to use an ITN for the procurement of the health insurance management information system and related services. Following the conversation with Mr. Barker, Dr. Phillips was left with the impression that approval by DMS was not necessary every time the bureau selected an ITN as a procurement method for commodities or services needed by DSGI. Dr. Phillips' impression that Mr. Barker had so told her, however, was mistaken. Mr. Barker did not tell her that an ITN could be selected as the procurement solicitation method without seeking further approval. It is easy, nonetheless, to comprehend why Dr. Phillips might have had a such a misimpression. Dr. Phillips had received written approval to use the January 1999 ITN. That coupled with the statement in DMS Memorandum No. 21-(97-98) [the memorandum referred-to in Finding of Fact No. 15, above] that an agency could make a one-time request for authority to use invitations to negotiate for solicitation of vendors and suppliers in a competitive procurement explains why Dr. Phillips believed she no longer needed prior approval. As it turned out, Dr. Phillips was right that she no longer needed prior approval but not because of impressions she took from conversation with Mr. Barker. Moreover, miscommunication occurred between Dr. Phillips and Mr. Barker about prior approval, proved immaterial. It was unnecessary, actually, for Dr. Phillips to obtain approval of the use of the ITN because of a change in DMS rules governing ITNs. - DMS Rules Change On July 16, 1998, through publication in the Florida Administrative Weekly, the Division of Purchasing had commenced rule development by proposing a number of amendments to the General Regulations of the Division's rules. Two months prior to Dr. Phillips' appointment as the Issuing Officer for the pharmacy benefits management service procurement at least one of the proposed amendments became effective. It provided a new definition of "Invitation to Negotiate" and set out substantive requirements for the circumstances under which an ITN could be selected. The amended rule, effective January 2, 2000, that freed DSGI from obtaining prior approval for the ITN is Rule 60A- 1.001(2), Florida Administrative Code. It rendered any conversation with Mr. Barker or anyone else in the Agency that might be contrary to its requirements and DMS Memorandum No. 21- (97-98) obsolete. - Rule 60A-1.001(2), the ITN Rule Rule 60A-1.001(2), Florida Administrative Code (the "ITN Rule"), is clear and brief. However curt, it is comprehensive in attempt. It provides a definition of an ITN. It states when an ITN may be used in favor of other solicitations. And it succinctly sets out what an agency must do when an ITN is selected as the solicitation method for competitive procurement: 60A-1.001 Definitions. * * * (2) Invitation to Negotiate - Competitive solicitation used when an Invitation to Bid or Request for Proposal is not practicable. Agency shall document file as to conditions and circumstances resulting in this decision. Unfortunately, Dr. Phillips did not know at the time of her appointment as Issuing Officer in March of 2000, that Rule 60A-1.001, Florida Administrative Code, had been amended effective two months or so earlier. Dr. Phillips' testimony that she did not know of the existence of the ITN Rule as amended January 2, 2000, is consistent with other testimony that she offered in the proceeding. For example, she testified that she did not the know the rule change was underway. She was not asked for any input into the Rule's development. Nor did she know that the Rule change had taken place even after rule-making had concluded and the rule had taken effect. (Petitioner Exhibit No. 15, p. 50). As odd as Dr. Phillips' unawareness of the Rule may seem to some, particularly since DSGI and the Bureau for Policy and Development are within DMS, the promulgator of the ITN Rule, her testimony about being out of the rule-making loop went unrefuted in the proceeding. - Decision to Use an ITN In any event, the ITN was selected as the solicitation method. Dr. Phillips, as the Issuing Officer, determined that an ITN was the "most appropriate" solicitation method and that it was a method "more appropriate" than either an ITB or an RFP. Most critically, because she was unaware of the Rule, Dr. Phillips did ensure that the selection complied with Rule 60A-1.001(2), Florida Administrative Code, the new rule governing ITNs. A decision was not made that an ITB or an RFP "is not practicable." A decision was made only that it was more "appropriate" to use an ITN than an RFP. The terms "appropriate" and "practicable" have meanings that are at the very least slightly different. "Appropriate" means "suitable or fitting for a particular purpose, occasion, person, etc." The Random House College Dictionary, Revised 1988. On the other hand, Practicable is that which may be done, practiced, or accomplished; that which is performable, feasible, possible; (Petitioner's Exhibit 13, Black's Law Dictionary: 1979). There is, then, an obvious difference between the two words in the context of cases involving selections of procurement solicitations. It might be suitable to use an ITN in a given case. But if it is also practicable to use an ITB or an RFP then no matter how suitable an ITN is, its use is not allowed under the ITN Rule. There was no evidence in this case that a decision was made that an ITB or an RFP was not practical. Not only is there no evidence of such a decision but the "conditions and circumstances resulting in [any such] decision [if made]" were not documented and placed in the file. In short, the decision to use an ITN in this case did not conform to the rules of DMS, the agency within which DSGI is housed. - No Objection or Protest to Use of the ITN MedImpact received a copy of the ITN, albeit later than it should have. See paragraphs 65 to 71, below. Representatives of MedImpact did not at any time after receiving notice of the selection of the ITN contact DSGI for the purpose of discussing the use of an ITN. Nor did representatives of MedImpact raise any objection to its use prior to the rejection of its late-submitted negotiation. The lack of discussion about the use of an ITN and the failure to object to its use prior to the rejection were not for lack of opportunity. Representatives of MedImpact not only contacted DMS personnel about the pharmacy benefits management services procurement but also attended the proposer's conference on April 28, 2000. MedImpact, moreover, despite the opportunity provided by the ITN, did not submit to DSGI any written questions or comments of objections regarding the use of an ITN as they were allowed to do under the terms of the ITN. Even in this proceeding, despite its position that the parties should return to the "status quo ante" the selection of the ITN, MedImpact has not asserted any manner in which the use of an ITN prejudiced or affected them in the procurement process at issue. - Selection of a Third ITN After selection of the ITN in this case, DSGI selected an ITN for a third competitive procurement, this one described by DSGI as the "Long-term Care Insurance" ITN. Again, Dr. Phillips was the Issuing Officer. Consistent with what she had done with regard to the January 1999 ITN and the ITN in this case and consistent with someone unaware of the amendments to Rule 60A- 1.001(12) that govern ITNs, Dr. Phillips determined that an ITN was more "appropriate" than an RFP. "The Long-term Care Insurance Invitation to Negotiate (ITN Number DSGI 00-002) was issued on August 15, 2000." (Petitioner's Exhibit No. 12.) On August 29, 2000, a memorandum was issued by Dr. Phillips to the Long-term Care Insurance Invitation to Negotiate File. The subject of the memorandum is "Justification to use Invitation to Negotiate." The memorandum, in part, states: On August 29, 2000 it was learned that the Division must document to the file the justification for using an ITN instead of an Invitation to Bid (ITB) or a Request for Proposal (RFP). The purpose of this memorandum is to comply with Rule 60A- 1.001(2). The Division believes that the ITN method is more appropriate than the ITB or RFP because the product and services we are seeking can be provided in different ways. Also, vendor qualifications and the quality of products and services provided are at least as important as price. . . . (Id.) The memorandum demonstrates that, in late August, Dr. Phillips had become aware of the ITN Rule. Nonetheless, she continued to fail to comply with it. While the memorandum documents the file as to conditions and circumstances resulting in the decision to use an ITN, as required by the ITN Rule, it does not document the decision to choose an ITN over an ITB or RFP because the latter two "are not practicable." For the second time this year, but this time with professed awareness of the ITN Rule, DSGI failed to comply with the rules of the agency in which it is housed, DMS. In other words, for the second time this year, DSGI failed to follow its own rules. The ITN, itself Among the many provisions in the ITN are the following: Section 2.0 INVITATION TO NEGOTIATE PROCESS AND PROCEDURES General Information It is entirely the proposer's responsibility to examine this Invitation to Negotiate, to ensure that its requirements are clearly understood, and to submit its proposal in a timely, complete, and procedurally correct manner. (Joint Exhibit 2, p. 6, emphasis supplied). Section 2.2, entitled "ITN Calendar of Events" contains a chart with columns that sets out a "[d]eadline for receipt of proposals from proposers" (Joint Exhibit 2, p. 7) of 5:00 PM EDT, May 12, 2000. The same calendar provides a location for the receipt by DSGI at its Tallahassee address. Section 2.13 of the ITN denominated "Deviations from ITN Specifications" (Id. at p. 10) states "[t]he Division reserves the right to reject any proposal not prepared according to the requirements set forth in this ITN. Section 2.18, entitled "Minor Irregularities and Clarification" (Id. at p. 11) states: The Division, by means of this ITN, has established certain proposal requirements and reserves the right, in its sole discretion, to waive minor irregularities in proposals . . . . If the Division determines that a proposal contains a minor irregularity . . . the proposer will be notified of the irregularity . . . . This provision will not . . . provide one proposer any advantage over any other proposer. Furthermore, this provision applies only to the submission and evaluation of the written proposal . . . . (Id., at page 11). Section 2.19, entitled "Rejection of Proposals" provides in pertinent part: The Division will reject proposals that do not conform or that are not in substantial accord with the requirements of this ITN. Proposals may be rejected for reasons that include, but are not limited, to the following: The proposal is received after the submission deadline; * * * g. The proposal is incomplete, or contains irregularities which make the proposal indefinite or ambiguous and which cannot be waived in accordance with Section 2.19, Minor Irregularities and Clarification; (Id., at p. 12) Section 3.0 governs the "organization and submisson of proposals." Section 3.1, entitled "Proposal Submission Requirements", provides in pertinent part, * * * The original and duplicate copies of the proposal must be received by the issuing officer at the address provided in Section 1.6, Issuing Officer, no later than the time and date specified in Section 2.2, ITN Calendar of Events. (Id. at page 14) The section ends with the following statement in bold: PROPOSALS RECEIVED AFTER THE SPECIFIED TIME AND DATE WILL BE RETURNED UNOPENED." (Id.). Section 4.0 of the ITN governs "proposal evaluation." Subsection 4.2 is denominated "Mandatory Requirements." It states, in pertinent part: Determining compliance with the mandatory requirements will occur at the proposal opening. The Issuing Officer will observe the proposal opening and verify compliance with the mandatory requirements Only those proposals meeting the mandatory requirements will continue in the evaluation process. The mandatory requirements include: The Division received the proposal no later than the deadline specified in Section 2.2, ITN Calendar of Events. * * * (Id., at page 17.) There is no statement anywhere within the body of the ITN as to why an ITN was selected as the procurement method instead of an RFP or an ITB. Nor is there any statement in the ITN, itself, that provides a point of entry to parties who would choose to contest the decision to select the ITN. There is, however, such a point of entry provided in the "Acknowledgement" mailed to those who were selected by the agency to receive the ITN or parties who, like MedImpact, as discussed below, requested the agency to send them an ITN. The "Acknowledgement" is on a purchasing form used by the agency, "PUR 7105." PUR 7105 Revised as of June 1, 1998, PUR 7105 was sent to every company that received an ITN. In the General Conditions section of the form, potential responders to the ITN are informed as to what to do if they intend to accept the invitation to negotiate. (See Joint Exhibit 2a [renumbered after the final hearing], General Conditions, 1. NEGOTIATION). On the other hand, if a party who receives the invitation decides not to submit a response, the party is asked to return the "acknowledgement form, marking it "NO RESPONSE" and explain the reason . . ." (Joint Exhibit 2a, General Condition, 3., NO RESPONSE). Failure to respond to the procurement solicitation without giving reasonable justification is cause for removal of the supplier's name from the Agency's supplier list. PUR 7105 also contained "point of entry" language as follows: Any person who is adversely affected by an Agency decision or intended decision concerning a procurement solicitation or contract award and who wants to protest such decision or intended decisions shall file a protest in compliance with Chapter 28-110, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.57(3), F.S. or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120 F.S. (Joint Exhibit. 2a, General Conditions, 5. INTERPRETATIONS/DISPUTES). The Acknowledgement Form also under the heading of "General Conditions" contains a paragraph entitled "NOTICE OF NEGOTIATION PROTEST BONDING REQUIREMENT." The paragraph details the requirements for posting a bond (or cashier's check or money order) with the state whenever a party files a protest pursuant to Section 120.57(3), Florida Statutes. The paragraph concludes, "FAILURE TO FILE THE PROPER BOND AT THE REQUIRED TIME WILL RESULT IN A DENIAL OF THE PROTEST." (Joint Exhibit 2a). EHS and Mr. Francis EHS is a joint venture between Eckerd Corporation and the petitioner in this case, MedImpact. In 1996, it won the contract for pharmacy benefits management in conjunction with the PPO Plan after it had made a proposal in response to an RFP. EHS' proposal was submitted by William Francis, an employee of Eckerd Corporation. At Eckerd, Mr. Francis' main duties were related to pharmacy benefits management. In fact, he had been "brought down to start [Eckerd Corporation's] PBM ["pharmacy benefits management"] . . ." (Tr. 131). EHS was the highest-ranked proposer, and EHS and the state were able to reach an agreement memorialized by a written contract. The contract was signed by Roger Davis, the vice president of Eckerd Corporation of Florida, Inc., as one of the general partners of the joint venture that together with MedImpact comprised EHS. It was also signed by the Deputy Secretary of the DMS on behalf of the state of Florida. In August of 1998, Mr. Francis left Eckerd Corporation to become an employee of MedImpact Healthcare Systems in California (the other venturer in the joint venture that with Eckerd Corporation comprised EHS). Today, he is the manager of business development for MedImpact. It is his job to "network in the managed care community, to develop relationships there, to get [the company] on vendors' bidders lists and so forth with different public sector entities . . ." (Tr. 130). His duties extend to many public sector entities. Among them is the state of Florida and with regard to the state, consistent with his experience, he is responsible in particular in the arena of pharmacy benefits management. Dissatisfaction with EHS The contract entered into by DMS with EHS in 1996 allowed for renewal after a term of four years. The decision not to renew but to enter a new procurement process was explained in testimony by Dr. Phillips: Q . . . What were the reasons that you chose to initiate this procurement if there was a renewal on the EHS contract? A We chose to initiate a new procurement because we were not completely satisfied with the services being delivered under the current contract and, because PBM services had evolved very quickly over a number of years, we believed that we could get better service, better clinical programs for a better price. Q And can you give me an idea of what kind of changes you had noted in the pharmacy management services area? A One of the biggest areas would be clinical management, specifically disease management. Q Does the current contract meet those needs and those changing needs of the State? A We do not believe so, no. (Tr. 159, 160). Events Between the Issuance of the ITN and MedImpact's Rejection From the time he left Eckerd Corporation, Mr. Francis remained cognizant of the EHS pharmacy benefits management contract with DMS. He knew that the contract was set to expire and that a new contract would be "going up for bid this year." (Tr. 134). Mr. Francis was very interested in submitting on behalf of MedImpact a negotiation pursuant to the ITN. He made his interest known in several ways, ways that could not have been overlooked by personnel at DMS. He attended the proposer's conference on April 28, 2000. As the representative of MedImpact, an active partner in the incumbent provider, everyone at the conference, including DSGI, had to have been aware that MedImipact intended to submit a "negotiation" package in response to the ITN. When an ITN had not been received in the time in which Mr. Francis expected it, he called Mike McCaskill, his "contact person with the state" (Tr. 134) to inquire "where the RFP process was . . ." (Id.) In the conversation, Mr. McCaskill corrected him. An RFP was not being issued; rather the procurement method selected by the state was an ITN. Mr. McCaskill further informed Mr. Francis that the ITN had been issued "the day before." Mr. Francis' response was "that's great, we should expect it soon." (Id.). But the ITN was not delivered to MedImpact. Mr. Francis inquired of Mr. McCaskill again. In the follow-up conversation, Mr. Francis learned that MedImpact was "not on the [supplier's] list to receive an invitation." No explanation for this omission was offered at hearing by way of document or testimony except by Mr. Francis. The following colloquy occurred after counsel asked Mr. Francis the question of whether he had learned how the suppliers' list was generated: A Yes, he said that his [Mike McCaskill's] management team had made the decision to inquire with a company called Pharmacy Benefit Management Institute out of Scottsdale, Arizona, and get a listing from them of the top five PBMs in the country. Q And was MedImpact included among the top five PBMs in the list? A It depends on really where -- you know, on where you look for your resources. Sometimes we're listed fifth, sometimes sixth. Q And would MedImpact be listed in any position on the list generated by that company? A No. Q Why not? A We don't subscribe to their research services. (Tr. 134, 135). In response to the follow-up conversation, however, Mr. McCaskill promised to send the ITN to MedImpact. In fact, Mr. Francis testified, Mr. McCaskill "very promptly Fed Ex'd it to us. I think we received it toward the end of the week." Exactly what week Mr. Francis was referring to between the early part of April when the ITN was issued and May 12, 2000, when the response was due, is not disclosed by the record. Nor is it clear from the record in this case precisely when Mr. Francis' conversations took place with Mr. McCaskill. It may be that they took place prior to the April 28 conference. When is immaterial aside from the fact that the conversations took place after the ITN was actually issued and mailed to suppliers other than MedImpact. The point is that Mr. Francis made it abundantly clear to the agency that MedImpact was very interested in submitting a negotiation in response to the ITN. For MedImpact, and presumably for the others who responded to the ITN in this case, it is a time-consuming and costly process to prepare and submit a response. Once the ITN was received, it took MedImpact at least 150 man hours among its upper level professional to prepare its response to the ITN. The delay caused by the Agency in getting the ITN to MedImpact must have been at least a contributing factor if not the determinative factor in the preparation of MedImpact's "negotiation" not being finished until Thursday, May 11, 2000. Since there was only one day left in which to make delivery in Tallahassee, MedImpact took the response to the Fed Ex office in San Diego. Indeed, the FedEx Airbill, with a FedEx tracking number of 8116 8522 0322 and dated "5/11" shows that a package was sent by "Bill Francis" of MedImpact in San Diego, California, to Susan Phillips, "State of Florida, Department of Management, Bureau of Policy Development" at the DMS address in Tallahassee by "FedEx Priority Overnight" for delivery "next business morning." (Petitioner's Exhibit 7). Instructions given by MedImpact to FedEx were that "the box was to be delivered by 10:30 the following morning in Tallahassee" (Tr. 138), the following morning, of course, being the morning of Friday, May 12, 2000. The package containing the response was not delivered on Friday, May 12, 2000, as FedEx had promised. The delivery was delayed in air transit by "one of the worst thunderstorms of the year" (Joint Exhibit 4) over Memphis, Tennessee, a critical hub in FedEx's delivery and sorting system. Delivery of MedImpact's negotiation occurred at 1:33 p.m. the afternoon of Monday, May 15, 2000. The moment of delivery was approximately three and one-half hours after the Agency commenced opening six negotiations submitted in response to the ITN. By the time MedImpact's submission was received, all six had been opened. The six parties whose negotiation packages were opened were: Caremark, Eckerd Health Services, Merck-Medco, PCS Health System, Advance Paradigm and Express Scripts. The Rejection Dr. Phillips, as the Issuing Officer of the ITN, was responsible for making the decision as to whether to accept or reject MedImpact's late negotiation package. Despite the clarity with which portions of the ITN describe the consequences of failure to deliver a negotiation on time to DSGI, Dr. Phillips believed on May 15 that she had discretion to accept or reject the proposal. Dr. Phillips continued to maintain that she had such discretion throughout this proceeding. No witness from DMS or produced by any party disputed that such discretion exists. As Dr. Phillips testified in her deposition read, in part, into the record at hearing, "I had the authority to determine if the proposal were going to be accepted or rejected." (Tr. 95). There are several sources from which Dr. Phillips' authority to exercise discretion in the decision might be derived. One is the ITN, itself. In the "Minor Irregularities and Clarification" subsection (Subsection 2.18), DSGI reserved the right, in its sole discretion, to waive minor irregularities. These irregularities expressly include irregularities in both "the submission and the evaluation of the written proposal." (Joint Exhibit 2, p. 11). There is also a "Minor Irregularity" Rule of the DMS. The Minor Irregularity Rule Rule 60A-1.002(10), Florida Administrative Code, states: (10) Right to Waive Minor Irregularities for Commodities or Contractual Services -- The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid or proposal or offer to negotiate. Variations which are not minor can be waived. (See Joint Exhibit 1, DMS Rule Chapter 60A, F.A.C. [as amended from 1996 to present, V. 17, p. 55, R.1/00]). The term "minor irregularity" is defined in Rule 60A- 1.001(17), Florida Administrative Code: (17) Minor irregularity -- A variation from the invitation to bid or invitation to negotiate or request for proposal terms and conditions which does not affect the price of the commodities or services, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, and does not adversely impact the interests of the agency. In considering how to exercise the Agency's discretion, Dr. Phillips wisely sought the advice of counsel first. Counsel advised her that she was free to reject the submission. Dr. Phillips then decided that MedImpact's late negotiation should be rejected. At hearing, Dr. Phillips explained some of the circumstances to be taken into consideration in the discretionary decision-making process in situations of late-filed bids, proposals, and negotiations. In every case, Dr. Phillips would seek the advice of counsel before making a decision. She would be more comfortable in accepting a late-filed submission in a case in which there was an Act of God (as in this case) but in which many submitters were late (unlike this case). From her testimony, it is apparent, as is to be expected in decision calling for the exercise of discretion, that there is not a bright line as to when a late-filed submission should be accepted and when not. Dr. Phillips explained further, however, her decision in this case. Critical to her decision were two facts: 1) there was only one late-filed submission, and 2) there were six timely submissions. In light of ample timely competitive submissions, the purpose of competitive procurement was served by going forward, in her view, without MedImpact's submission being in the mix. Dr. Phillips reasoned that the interest of the state and the public was protected by the number of accepted submissions. In light of this protection and in light of the clear language of the ITN requiring submission on time, Dr. Phillips rejected the submission of MedImpact. Application of the Minor Irregularity Rule or the "minor irregularity" portion of the ITN in light of the definition of minor irregularity in Rule 60A-1.001(17), Florida Administrative Code, should have led to a different result. The late submission of MedImpact's negotiation constituted a variation from the ITN. The variation did not affect the price of the services. It did not give MedImpact an advantage not enjoyed by the other negotiators since the negotiation left MedImpact's control once handed over to FedEx and remains unopened to this day. It did not adversely affect the interests of the Agency save the possibility of exposing it to a protest from one of the other negotiators, a possibility that could not be more adverse to the Agency than what has ensued in the wake of its decision to reject, namely this case and Case No. 00-3553RU. Events Post-Rejection DSGI returned MedImpact's response unopened under cover of a letter from Dr. Phillips to Mr. Francis dated May 17, 2000. Dr. Phillips wrote: Thank you for your response to our Invitation to Negotiate for Pharmacy Benefits Management Services. Unfortunately, the Department received your proposal at 1:33 p.m. on Monday, May 15, 2000. The deadline for submission of your proposal was 5:00 p.m., Friday, May 12, 2000 as outlined in Section , Calendar of Events. Therefore, in accordance with Section 2.19, Rejection of Proposals, paragraph a, your proposal has been rejected. We are returning your unopened proposal via Federal Express. (Joint Exhibit 3). Shortly thereafter, FedEx described the cause of the late delivery as a FedEx error. In a letter dated May 18, 2000, to Ms. Julie Smith of MedImpact, Theresa E. Ledbetter of FedEx's Customer Relations Department wrote: According to our records, the above referenced priority package was tendered to us for carriage with delivery scheduled by 10:30 AM on Friday, May 12. Unfortunately, due to our error, your package was delayed in our sorting network and did not arrive in our Tallahassee FedEx office until Monday, May 15. I note final delivery was completed on Monday at 1:33 p.m. Petitioner's Exhibit 9. The letter from FedEx did not sway DSGI from its rejection of MedImpact's negotiation. Challenge to the Rejection, Posting, a Contract and Referral On June 30, 2000, MedImpact filed a petition for formal administrative hearing. The case was treated by DMS as one without disputed issues of fact and so it kept jurisdiction of the case and assigned it to Hearing Officer Strickland for informal hearing. On July 17, 2000, the results of the evaluation of the submitted negotiations and the scoring of the submissions were posted. Express Scripts received a "TOTAL Weighted Score" of 70; Advance Paradigm, 72; PCS Health System, 73; MMMC and EHS tied at 75; and, Caremark received a total weighted score of 77. On August 25, 2000, MedImpact filed an amended petition by which it hoped to convince the hearing officer that the case contained disputed issues of material fact. While the informal proceeding pended at DMS, Caremark and DSGI conducted negotiations. They were successful. Caremark and DMS entered a contract on August 28, 2000. Three weeks later, on September 20, 2000, when Hearing Officer Strickland found that there were indeed disputed issues of material fact (born out abundantly by the record in this case) he referred the case to DOAH. In his letter of referral he called the case a "bid protest." DOAH Proceedings During the pendency of the "bid protest" at DMS, MedImpact discovered two statements by DSGI it believed constituted unpromulgated rules. MedImpact filed a proceeding challenging the two statements pursuant to Section 120.56(4), Florida Statutes. Its petition was assigned Case No. 00-3553RU. When the challenge to the rejection reached the Division of Administrative Hearings via Hearing Officer Strickland's order, the two cases were consolidated. Bond or a Substitute As of the day of hearing, MedImpact had not filed any bond or substitute therefor with DSGI. Intervention by MMMC At hearing, Connie Martin, MMMC's Vice President for National and Special Accounts testified that if MedImpact's negotiation is ultimately accepted by DMS and scored higher than MMMC's, she would recommend that MMMC file a protest. (See Tr. 57). Jurisdiction
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Management Services give MedImpact a reasonable amount of time to post a bond or provide a substitute for a bond as required by Section 120.57(3), Florida Statutes, in order to continue to pursue this protest related to competitive procurement; The Division of State Group Insurance accept MedImpact's negotiation, open it, and subject it to its process for evaluation applicable to negotiations under ITN Number DSGI 00- 001; and, Post the results of the evaluation of all the negotiations submitted to the ITN; and Provide the seven negotiators to the ITN rights to protest the results of the posting that have not been waived when the results of the posting in July 2000 were not protested. DONE AND ENTERED this 21st day of November, 2000, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 21st day of November, 2000. COPIES FURNISHED: Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Bruce Hoffmann, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Julia P. Forrester, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Robert P. Smith, Esquire Timothy G. Schoenwalder, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32302-6526 Fred McCormack, Esquire Landers & Parson, P.A. 310 West College Avenue Tallahassee, Florida 32301 Thomas J. Maida, Esquire Austin B. Neal, Esquire Foley & Lardner 300 East Park Avenue Tallahassee, Florida 32301 Donna H. Stinson, Esquire Broad & Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301
