00-001246 Department Of Health, Board Of Medicine vs. Oscar Diaz, T. T. Status: Closed Recommended Order on Wednesday, January 10, 2001.

Summary: Revocation of respiratory therapist`s license recommended where therapist, due to cocaine dependency, not able to skillfully and safely deliver respiratory care services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

RESPIRATORY CARE, )

)

Petitioner, )

)

vs. ) Case No. 00-1246

)

OSCAR DIAZ, T. T., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on

November 9, 2000, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Linton Eason, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: No appearance

STATEMENT OF THE ISSUES

Whether Respondent is guilty of being in violation of

Section 468.365(1)(x), Florida Statutes, as alleged in the

Administrative Complaint, and, if so, what disciplinary action

should be taken against him.

PRELIMINARY STATEMENT

On March 17, 1999, Petitioner's predecessor, the Department

of Health, Board of Medicine, 1/ filed an Administrative

Complaint against Respondent, a Florida-licensed respiratory

care practitioner, alleging that Respondent had "violated

Section 468.365(1)(x), Florida Statutes, by being unable to

deliver respiratory care services with reasonable skill and

safety to patients by reason of illness or the use of alcohol,

drugs, narcotics, chemicals, or any other type of material or as

a result of any mental or physical condition."

Through the submission of a completed Election of Rights

form dated March 16, 2000, Respondent "dispute[d] the

allegations of fact contained in the Administrative Complaint

and request[ed] . . . a formal hearing, pursuant to Section

120.569(2)(a)(1), Florida Statutes, before an Administrative Law

Judge appointed by the Division of Administrative Hearings." On

March 23, 2000, the matter was referred to the Division of

Administrative Hearings (Division) for the assignment of a

Division Administrative Law Judge to conduct the "formal

hearing" Respondent had requested.

The final hearing was originally scheduled to commence on

September 5, 2000, but was continued at Petitioner's request and

rescheduled for November 9, 2000, starting at 9:00 a.m.

Petitioner and Respondent were each provided with written

notice of the rescheduled hearing in accordance with Section

120.569(2)(b), Florida Statutes. The notice was issued on

August 28, 2000. It directed the parties to report to the Court

Administrator's Office located in Room 1600 of the Dade County

Courthouse at 9:00 a.m. on November 9, 2000, "for room

assignment."

On October 31, 2000, Petitioner filed its witness and

exhibit lists with the Division, accompanied by a written

advisement, in which it stated the following:

Despite numerous failed attempts to contact

Respondent and messages left with his mother

at his telephone number on record with the

Board of Medicine [sic] and listed on the

Election of Rights form dated March 16,

2000, Respondent has not contacted our

office. Furthermore, Respondent's mother

has notified our office that the number

listed as Respondent's is hers and

Respondent has not left a forwarding address

or telephone number where [she] or anyone

else may contact him.

On November 6, 2000, the undersigned issued an Amended

Notice of Hearing, in which he announced that the final hearing

in this case would be held (on November 9, 2000, starting at

9:00 a. m.), not at a single location in Miami, as previously

scheduled, but by video teleconference at two locations: one in

Tallahassee (at the Division's headquarters) and another in

Miami (in Room N-106 of the Ruth Bryan Rohde Building at 401

Northwest 2nd Avenue, which is a short walk from the Dade County

Courthouse). The Court Administrator's Office was instructed to

tell anyone reporting to Room 1600 of the Dade County Courthouse

and asking for the "room assignment" for the final hearing in

the instant case that the hearing would be held in Room N-106 of

the Ruth Bryan Rohde Building at 401 Northwest 2nd Avenue.

As noted above, the final hearing was held on November 9,

2000, by video teleconference, as described in the Amended

Notice of Hearing issued on November 6, 2000. Petitioner

appeared at the hearing, through its counsel of record, Albert

Peacock, Esquire, at the Tallahassee site. The undersigned also

participated in the hearing from the Tallahassee site.

Respondent did not make an appearance (in person or through

counsel or an authorized representative) at either the Miami or

the Tallahassee site.

Two witnesses testified on behalf of Petitioner at the

hearing: Zulma del Torro, an Investigative Specialist I with

the Department of Health, who testified (from the Miami site)

that she had waited in Room 1600 of the Dade County Courthouse

from 8:50 a.m. to 9:35 a.m. that morning (in accordance with Mr.

Peacock's directions) and no one (other than employees of the

Court Administrator's Office) had entered the room during that

time; and Raymond Pomm, M. D., the director of Physicians

Recovery Network, who gave testimony (from the Tallahassee site)

concerning the allegations set forth in the Administrative

Complaint. In addition to the testimony of Ms. del Torro and

Dr. Pomm, Petitioner offered nine exhibits (Petitioner's

Exhibits 1 through 9) into evidence. All nine exhibits were

admitted.

At the close of the evidentiary portion of the hearing the

undersigned established a deadline (ten days from the date of

the filing of the hearing transcript with the Division) for the

filing of proposed recommended orders.

A transcript of final hearing (consisting of one volume)

was filed with the Division on December 26, 2000. On January 5,

2000, Petitioner filed a Proposed Recommended Order, which has

been carefully considered by the undersigned. To date,

Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

the record as a whole, the following findings of fact are made:

1. Respondent is now, and has been since January 5, 1987,

a Florida-licensed respiratory therapist. He holds license

number CRT 830.

2. Respondent has a lengthy history of drug abuse.

3. In or about June of 1996, when he was employed as a

blood gas laboratory technologist by Miami Children's Hospital

(MCH) in Miami, Respondent submitted to a drug screen (performed

at the request of MCH) and tested positive for cocaine. 2/

4. MCH referred Respondent to South Miami Hospital's

(South Miami's) addiction treatment program, to which Respondent

was admitted on June 6, 1996.

5. Respondent successfully completed the South Miami

program.

6. He was discharged from the program on July 3, 1996.

7. Respondent thereafter voluntarily enrolled in the

state-approved program for impaired Florida health care

practitioners offered by Physicians Recovery Network (PRN).

8. PRN monitors the care, treatment, and evaluation of the

impaired practitioners in its program.

9. On July 11, 1996, Respondent entered into an "Advocacy

Contract" with PRN, in which he agreed to, among other things,

the following: "participate in a random urine drug and or blood

screen program through [the] PRN office within twenty-four hours

of notification"; "release by waiver of confidentiality the

written results of all such screens to the Physicians Recovery

Network to validate [his] continuing progress in recovery";

"abstain completely from the use of any medications, alcohol,

and other mood altering substances including over the counter

medication unless ordered by [his] primary physician, and when

appropriate, in consultation with the Physicians Recovery

Network"; "attend a self help group such as AA or NA";

"participate in continuing care group therapy"; "attend a 12-

step program of recovering professionals"; "notify Physicians

Recovery Network in the event of use of mood altering substances

without a prescription"; and "be appropriately courteous and

cooperative in all contacts with the PRN staff and

representatives of PRN." The contract further provided that

"[r]elapse will result in re-assessment and possible residential

treatment."

10. A "monitoring professional" or "facilitator" was

appointed by PRN to assist in Respondent's recovery.

11. PRN "facilitators" are responsible for providing

therapy in a group setting to those under their charge and

reporting to PRN any suspected failure on the part of a member

of their group to adhere to the terms of the group member's

"Advocacy Contract." (There are 33 "therapy groups" led by PRN

"facilitators" throughout the State of Florida.)

12. In March of 1997, Respondent's "facilitator" reported

to PRN that Respondent had started using cocaine again (this

time intravenously), resulting in his being fired from his

position at Miami Children's Hospital.

13. PRN responded to the facilitator's report by voiding

Respondent's July 11, 1996, "Advocacy Contract."

14. Respondent was thereafter involuntarily hospitalized

pursuant to the Baker Act at the request of his family.

15. Following his discharge from the hospital, Respondent

was reported missing.

16. In June of 1997, Respondent resurfaced and, pursuant

to a court order, was admitted to Miami-Dade County's Treatment

Alternative to Street Crime (TASC) program.

17. In August of 1997, after Respondent completed Phases I

and II of the TASC program, he was evaluated, at PRN's request,

by Anthony P. Albanese, M.D., the Co-Director of the Addiction

Treatment Program at Mount Sinai Medical Center in Miami Beach.

18. Dr. Albanese determined that Respondent was suffering

from "cocaine . . . dependence in early remission" and was

"medically able to return to work."

19. On September 10, 1997, Respondent entered into a

second "Advocacy Contract" with PRN, which was similar to the

first contract.

20. In March of 1998, after receiving word that Respondent

had again relapsed, as evidenced by the results of a urine

screen, which revealed the presence of cocaine metabolites, PRN

voided Respondent's second "Advocacy Contract."

21. Subsequent analysis of Respondent's hair confirmed

that he had been using cocaine.

22. In July of 1998, Respondent was evaluated by David

Myers, M.D., a PRN-approved evaluator and treatment provider.

Dr. Myers diagnosed Respondent as having "cocaine dependency,

continuous and severe," "marijuana dependency," and "nicotine

dependency."

23. On July 7, 1998, Respondent was admitted as a patient

in the Tampa-based Healthcare Connection P.I.N. [Professionals

in Need] Program (P.I.N. Program).

24. Respondent was referred, through the P.I.N. Program,

for treatment at the Salvation Army Adult Rehabilitation Center.

25. On January 8, 1999, after receiving treatment at

Salvation Army Adult Rehabilitation Center and successfully

completing the P.I.N. Program, Respondent entered into a third

"Advocacy Contract" with PRN, which was similar to the first two

contracts.

26. In early February of 1999, Respondent's "facilitator"

reported that Respondent was not attending required group

meetings and could not be located. Based upon the facilitator's

report, PRN voided Respondent's third "Advocacy Contract."

27. At no time subsequent to the voiding of his third

"Advocacy Contract" has Respondent made contact with PRN.

28. Because of the "continuous and severe" nature of his

cocaine dependency, Respondent is presently unable to deliver

respiratory care services with reasonable skill and safety to

patients.

CONCLUSIONS OF LAW

29. The Board of Respiratory Care (Board) is statutorily

empowered to take disciplinary action against Florida-licensed

respiratory therapists based upon any of the grounds enumerated

in Section 468.365(1), Florida Statutes. Such disciplinary

action may include one or more of the following penalties:

license revocation; license suspension; imposition of an

administrative fine not to exceed $1,000 for each count or

separate offense; issuance of a reprimand; and placement on

probation for a period of time and subject to such conditions as

the Board may specify, including, but not limited to, requiring

the licensee to submit to treatment, to attend continuing

education courses, or to work under the supervision of another

licensee. Section 468.365(2), Florida Statutes.

30. A license that has been suspended or revoked may not

be "reinstate[d] . . . until such time as [the Board] is

satisfied that [the disciplined licensee] has complied with all

the terms and conditions set forth in the final order and that

the [licensee] is capable of safely engaging in the delivery of

respiratory care services." Section 468.365(3), Florida

Statutes.

31. Section 468.365(1)(x), Florida Statutes, authorizes

the Board to take disciplinary action against a licensed

respiratory care practitioner or respiratory therapist who is

"unable to deliver respiratory care services with reasonable

skill and safety to patients by reason of illness or use of

alcohol, drugs, narcotics, chemicals, or any other type of

material as a result of any mental or physical condition."

Section 468.365(1)(x), further provides as follows:

In enforcing this paragraph, the department

shall, upon probable cause, have authority

to compel a respiratory care practitioner or

respiratory therapist to submit to a mental

or physical examination by physicians

designated by the department. The cost of

examination shall be borne by the licensee

being examined. The failure of a

respiratory care practitioner or respiratory

therapist to submit to such an examination

when so directed constitutes an admission of

the allegations against her or him, upon

which a default and a final order may be

entered without the taking of testimony or

presentation of evidence, unless the failure

was due to circumstances beyond her or his

control. A respiratory care practitioner or

respiratory therapist affected under this

paragraph shall at reasonable intervals be

afforded an opportunity to demonstrate that

she or he can resume the competent delivery

of respiratory care services with reasonable

skill and safety to her or his patients. In

any proceeding under this paragraph, neither

the record of proceedings nor the orders

entered by the board shall be used against a

respiratory care practitioner or respiratory

therapist in any other proceeding.

32. "No revocation [or] suspension . . . of any

[respiratory care practitioner's or respiratory therapist's]

license is lawful unless, prior to the entry of a final order,

[Petitioner] has served, by personal service or certified mail,

an administrative complaint which affords reasonable notice to

the licensee of facts or conduct which warrant the intended

action and unless the licensee has been given an adequate

opportunity to request a proceeding pursuant to ss. 120.569 and

120.57." Section 120.60(5), Florida Statutes.

33. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint.

Sections 120.569(1) and 120.57, Florida Statutes.

34. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's

guilt is required. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

and Company , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Pou v. Department of

Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and

Section 120.57(1)(j), Florida Statutes ("Findings of fact shall

be based upon a preponderance of the evidence, except in penal

or licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

35. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable doubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983).

36. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegations made

in the administrative complaint. Due process prohibits an

agency from taking disciplinary action against a licensee based

upon conduct not specifically alleged in the agency's

administrative complaint or other charging instrument. See

Hamilton v. Department of Business and Professional Regulation ,

764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health

Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996).

37. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

complaint] to have been violated." Delk v. Department of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992). In deciding whether "the statute or rule claimed to have

been violated" was in fact violated, as alleged by Petitioner,

if there is any reasonable doubt, that doubt must be resolved in

favor of the licensee. See Whitaker v. Department of Insurance

and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah

v. Department of Professional Regulation, Board of Medicine , 574

So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

38. The Administrative Complaint issued in the instant

case alleges that Respondent "is unable to deliver respiratory

care services with reasonable skill and safety to patients by

reason of his ongoing and recurrent cocaine dependency" and

therefore is in violation of Section 468.365(1)(x), Florida

Statutes.

39. In support of its allegation, Petitioner presented

documentary evidence establishing Respondent's "ongoing and

recurrent cocaine dependency," and it further offered credible,

unrebutted expert testimony (from Dr. Pomm) concerning the

impact of Respondent's dependency on his ability to skillfully

and safely deliver respiratory care services.

40. Through the presentation of this evidence, Petitioner

met its burden of proving by clear and convincing evidence that

Respondent is in violation of Section 468.365(1)(x), Florida

Statutes, as alleged in the Administrative Complaint, and that

therefore the Board is authorized to take disciplinary action

against him.

41. In determining what disciplinary action the Board

should take, it is necessary to consult the Board's

"disciplinary guidelines," which impose restrictions and

limitations on the exercise of the Board's disciplinary

authority. See Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA

1999)("An administrative agency is bound by its own rules . . .

creat[ing] guidelines for disciplinary penalties."); cf . State

v. Jenkins , 469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and

regulations, duly promulgated under the authority of law, have

the effect of law."); Buffa v. Singletary , 652 So. 2d 885, 886

(Fla. 1st DCA 1995)("An agency must comply with its own

rules."); Decarion v. Martinez , 537 So. 2d 1083, 1084 (Fla. 1st

1989)("Until amended or abrogated, an agency must honor its

rules."); and Williams v. Department of Transportation , 531 So.

2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply

with its disciplinary guidelines in taking disciplinary action

against its employees).

42. The Board's "disciplinary guidelines" are found in

Rule 64B32-5.001, Florida Administrative Code, which provides,

in pertinent part, as follows:

(1) The Board may impose disciplinary

penalties upon a determination that a

certificate holder or registrant:

(a) Has violated any provision of Chapter

468, Part V, Florida Statutes, or any rules

promulgated thereunder; . . .

(2) The range of disciplinary penalties

which the Board may impose includes denial

of an application, revocation, suspension,

probation, reprimand, and a fine. In

determining the appropriate disciplinary

action to be imposed in each case, the Board

shall take into consideration the following

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the date of

the violation;

(e) The number of previous disciplinary

cases filed against the certificate holder

or registrant;

(f) The length of time certificate holder

or registrant has practiced;

(g) The actual damage, physical or

otherwise, to the patient;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

certificate holder's or registrant's

livelihood;

(j) Any efforts for rehabilitation;

(k) Any other mitigating or aggravating

circumstances.

(3) Violations and Range of Penalties. In

imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and (2), F.S., the Board

shall act in accordance with the following

disciplinary guidelines and shall impose a

penalty within the range corresponding to

the violations set forth below. The verbal

identification of offenses are descriptive

only; the full language of each statutory

provision cited must be consulted in order

to determine the conduct included. . . .

VIOLATION: (x) Inability to practice

respiratory care with skill and safety.

(468.365(1)(x), F.S.)

RECOMMENDED RANGE OF PENALTY: (x) From

submission [to] a mental or physical

examination directed towards the problem,

one year probation with conditions, possible

referral to PRN to revocation or denial, and

an administrative fine from $100.00 to

$1,000.00. . . .

43. Having carefully considered the facts of the instant

case (including, most significantly, the persistent nature of

Respondent's use of cocaine, despite the opportunity he has been

given to receive treatment to combat his cocaine dependency) in

light of the provisions of Rule 64B32-5.001, Florida

Administrative Code, set forth above, the undersigned concludes

that, for being in violation of Section 468.365(1)(x), Florida

Statutes, Respondent's license should be revoked and he should

be fined $500.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board enter a final order finding

Respondent is in violation of Section 468.365(1)(x), Florida

Statutes, as alleged in the Administrative Complaint, and

disciplining him therefor by revoking his license and fining him

$500.00.

DONE AND ENTERED this 10th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January, 2001.

ENDNOTES

1/ The Board of Respiratory Care was created by Chapter 99-397,

Section 176, Laws of Florida, effective July 1, 1999. Prior to

its creation, the Board of Medicine exercised regulatory

authority over respiratory care practitioners and respiratory

therapists in Florida.

2/ The Florida Legislature, in Section 893.02(2)(a)4, Florida

Statutes, has designated cocaine a Schedule II substance, which

is described in Section 893.02(2), Florida Statutes, as a

substance having "a high potential for abuse and ha[ving] a

currently accepted but severely limited restricted medical use

in treatment in the United States, and abuse of the substance

may lead to severe psychological or physical dependency."

COPIES FURNISHED:

Albert Peacock, Esquire

Linton Eason, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Oscar Diaz, T. T.

372 East 36th Street

Hialeah, Florida 33013

Dr. Kaye Howerton, Executive Director

Board of Respiratory Care

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.