02-001446PL Department Of Health, Board Of Nursing vs. Deborah Ketz Status: Closed Recommended Order on Thursday, September 5, 2002.

Summary: Failure to comply with urine specimen collection procedure per Florida rules warrants dismissal of complaint based on out-of-state drug test.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1446PL

)

DEBORAH KETZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On J une 13, 2002, a formal administrative hearing in this

case was held in St. Petersburg, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Alexis J. DeCaprio, Esquire

Reginald D. Dixon, Esquire

Division of Medical Quality Assurance

Bureau of Health Care

Practitioner Regulation

Department of Health

4052 Bald Cypress W ay, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Suzanne H. Suarez, Esquire

447 3rd Avenue, North

Suite 404

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations set forth

in the Amended Administrative Complaint filed against the

Respondent are correct, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated Februa ry 5, 2002,

the Department of Health, Board of Nursing (Petitioner), alleges

that a urine specimen obtained from Deborah Ketz (Respondent) as

part of a pre - employment drug screen tested positive for

controlled substances, specifically marijuana and codeine , on a

pre - employment urinalysis test. The Respondent filed a request

for formal hearing. The request was forwarded to the Division

of Administrative Hearings, which scheduled the hearing.

During the proceeding, the Petitioner presented the

testimony o f four witnesses, and had Exhibits numbered 1

through 3 admitted into evidence. The Respondent testified on

her own behalf, presented the testimony of four witnesses, and

had one Exhibit, numbered 2, admitted into evidence.

A Transcript of the hearing wa s filed on July 8, 2002.

Both parties filed Proposed Recommended Orders that were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent is a Florida - licensed registered nurse,

holding license number RN 2061632.

2. At all times material to this case, the Respondent

resided with her daughter in an unidentified city in

Massachusetts.

3. In February 2001, the Respondent sought employment at

the Pleasant Manor Health and Rehabilitation Center ("Pleasant

Manor"), a fa cility located in Attleboro, Massachusetts.

4. As part of the employment application process, the

Respondent was required to submit a urine sample to a Pleasant

Manor employee.

5. The evidence fails to establish that the procedure

utilized by the Pleas ant Manor employee in collecting the urine

specimen was sufficient to preclude contamination of the

specimen.

6. Prior to the urine collection procedure, the Pleasant

Manor employee did not require that the Respondent wash her

hands.

7. The Respondent wa s taken into a restroom to provide the

specimen. The Pleasant Manor employee waited outside the

restroom while the Respondent collected the urine sample.

8. The water in the toilet bowl was clear. Hot and cold

running water was available in the restro om sink.

9. After the sample was taken, the Respondent remained

with the Pleasant Manor employee while the sample was sealed and

packaged for transportation to the testing lab.

10. The urine specimen was submitted to a LabCorp testing

facility in Nor th Carolina for analysis.

11. The initial LabCorp test on the Respondent's urine

specimen produced results indicating the presence of

cannabinoids and opiates.

12. The Respondent's urine specimen was subjected to

confirmation testing and returned a test result of 31 ng/mL for

cannabinoids and 920 ng/mL for opiates/codeine.

13. The evidence establishes that the LabCorp tests were

performed according to appropriate standards and practice.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings ha s

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

15. The Petitioner has the burden of proving by clear and

convincing evidence the allegations against the Respondent.

Ferris v. Turlington , 51 0 So. 2d 292 (Fla. 1987). In this case,

because the specimen collection process failed to meet minimal

standards designed to protect the integrity of the collected

sample, the results of the tests are unreliable and the burden

has not been met.

16. Count One of the Administrative Complaint alleged that

the Respondent's conduct is a violation of Section 456.072

(1)(z), Florida Statutes (2001), which in relevant part provides

as follows:

456.072 Grounds for discipline; penalties;

enforcement. --

(1) The fo llowing acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(z) Testing positive for any drug, as

defined in s. 112.0455, on any confirmed

preemployment or employer - ordered drug

screening whe n the practitioner does not

have a lawful prescription and legitimate

medical reason for using such drug.

17. Count Two of the Administrative Complaint alleges that

the Respondent's conduct violates Section 464.018(1)(h), Florida

Statutes (2001), by viol ating Rule 64B9 - 8.005(18), Florida

Administrative Code. Rule 64B9 - 8.005(18), Florida

Administrative Code, does not appear to exist.

18. Section 464.018(1)(h), Florida Statutes (2001),

provides in relevant part as follows:

464.018 Disciplinary actions. —

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(h) Unprofessional conduct, which shall

include, but not be limited to, any

departure from, or the failure to conform

to, th e minimal standards of acceptable and

prevailing nursing practice, in which case

actual injury need not be established.

19. Rule 64B9 - 8.005(2)(k), Florida Administrative Code,

provides in relevant part as follows:

64B9 - 8.005 Disciplinary Proceedings.

( 2) Failing to meet or departing from

minimal standards of acceptable and

prevailing nursing practice shall include,

but not be limited to, the following:

(k) Testing positive for any drugs under

Chapter 893, F.S., on any drug screen when

the nurse does not have a prescription and

legitimate medical reason for using such

drug.

20. The substances detected in the urine sample attributed

to the Respondent in this case are controlled substances under

the provisions of Chapter 893, Florida Statutes.

21. Th e Respondent asserts that her daughter, with whom

she resides, is a chronic marijuana smoker and that the positive

test for cannabinoids is the result of "second - hand smoke." The

Respondent further asserts that the positive test for

opiates/codeine is rel ated to prescription medications she takes

for pain relief. The assertions are not supported by credible

evidence and are rejected.

22. The Respondent further asserts that the testing

methodology utilized by the employer in this case fails to

comply wit h standards applicable to such tests performed within

the state of Florida. The Respondent further asserts that the

test results for opiates should have been treated as negative

because under applicable Florida standards the detected level of

opiates was insufficient to be reported as "positive" tests.

23. The Petitioner asserts that such standards are not

relevant because the statutes and rule under which the

Respondent is charged do not reference such standards but merely

require establishment that th e test results were positive for

prohibited substances.

24. The Petitioner's position in this case (essentially

that any detection of a controlled substance in a urinalysis

screen warrants disciplinary action) disregards the requirement

that initial posit ive test results be confirmed through use of a

different test methodology that could produce a result contrary

to the initial screening. The Petitioner's position also

disregards the reporting requirements that result in instances

where indicators of cont rolled substances are detected in urine

but at levels below the specified threshold levels, and

therefore are reported as negative despite the presence of the

controlled substance.

25. It is relevant to consider the standards for testing

and for the repor ting of results that would have been applied in

a pre - employment urinalysis screening administered to a

registered nurse by a nursing facility located within Florida.

26. Florida Law provides that private employers have the

right to test potential employe es for use of controlled

substances. Section 440.102(2), Florida Statutes (2001).

Section 112.0455, Florida Statutes (2001), authorizes drug

testing of public employees. In both cases, the testing

methodologies are similar and are codified by statute.

27. Collection, storage, and transportation of specimens

must be performed in a manner that reasonably precludes

contamination and alteration of specimens. Sections

112.0455(8)(c) and 440.102(5)(c), Florida Statutes (2001).

28. The Florida Agency for H ealth Care Administration is

charged by statute with adoption of rules further refining

procedures to be utilized in collection of specimens. Sections

112.0455(13) and 440.102(10), Florida Statutes (2001). Such

rules have been adopted and are set forth a t Chapter 59A - 24,

Florida Administrative Code.

29. Rule 59A - 24.005, Florida Administrative Code,

addresses collection site and specimen collection procedures.

Rule 59A - 24.005(3)(c), Florida Administrative Code, provides as

follows:

Integrity and Identity of Specimen. The

collection site person shall take

precautions to ensure that a specimen not be

adulterated or diluted during the collection

procedure and that information on the

collection bottle and on the chain of

custody form can identify the individ ual

from whom the specimen was collected. The

following minimum precautions shall be taken

to ensure that unadulterated specimens are

obtained and correctly identified.

1. To prevent specimen contamination

at the collection site:

a. For urine specimens, toilet bluing

agents shall be placed in toilet tanks so

the reservoir of water in the toilet bowl

always remains blue . There shall be no

other source of water in the enclosure or

partitioned area where urination occurs.

All other sources of water shall be

controlled by the collector.

* * *

6. The individual shall be instructed

to wash and dry his or her hands prior to

urination . After washing hands, the

individual shall remain in the presence of

the collection site person and shall not

have access to any water fountain, faucet,

soap dispenser, cleaning agent or any other

materials which could be used to adulterate

the specimen .

7. The individual may provide his or

her urine specimen in a stall or otherwise

partitioned enclosure that allows for

indiv idual privacy. The collection site

person shall remain in the restroom or area,

but outside the stall or partitioned

enclosure.

* * *

10. No longer than 4 minutes following

collection, the collection site person shall

measure and record the temperature of the

urine specimen , as indicated, on the chain

of custody form. The temperature measuring

device must be placed on the outside of the

container to prevent contamination. If the

temperature measurement exceeds 4 minutes,

the specimen shall be rendered invalid and

shall be rejected. A second specimen shall

be collected and a new chain of custody form

generated. (emphasis supplied)

30. In this case, the evidence fails to establish that the

Respondent's urine sample was collected in accordance with th e

cited rules and failed to guarantee that the specimen provided

was not adulterated. The Respondent was not directed to wash

and dry her hands. The water in the toilets was not tinted.

The sample collector left the Respondent in the restroom alone.

Ot her sources of water in the restroom were not controlled. The

restroom sink had hot and cold water available; therefore, the

temperature measurement of the urine sample is not reliable.

31. The Agency for Health Care Administration has

established initi al test result thresholds that trigger

confirmation - testing, and has established confirmation - testing

levels that are reported as "positive" tests. In this case, the

initial test results are unavailable. Standards for reporting

confirmation test results as "positive" are set forth at Rule

59A - 25.006(4)(f)1., Florida Administrative Code. According to

the Rule, a confirmation test result for cannabinoids of

15 ng/mL is reported as positive; a confirmation test result of

2,000 ng/mL for opiates/codeine is r eported as positive.

32. In this case, the confirmation test result attributed

to the Respondent's urine sample was 31 ng/mL for cannabinoids

and 920 ng/mL for opiates/codeine.

33. The Agency for Health Care Administration has also

adopted standards related to the reporting of test results.

Rule 59A - 24.006(4)(g), Florida Administrative Code, provides as

follows:

Reporting Results.

1. The laboratory shall report all test

results to the MRO indicated on the chain of

custody form. Before any test resu lt is

reported by the laboratory, the results of

initial tests, confirmation tests, and

quality control data of such tests shall be

reviewed by the certifying scientist and the

test certified as an accurate report. The

report, at a minimum, shall identify the

drugs or metabolites tested for, the results

of the drug test either positive or

negative, the specimen number assigned on

the chain of custody form, the name and

address of the laboratory performing the

testing, and the drug testing laboratory's

spec imen accession number.

2. The following criteria shall be used

when reporting drug testing results.

a. Specimens that test negative as

specified in subparagraphs 59A -

24.006(4)(e)1. and 2., F.A.C., on the

initial test shall be reported as negative.

If an employer wishes to retest a negative

specimen under the provisions of Section

112.0455(9)(a), F.S., such testing is

authorized to be conducted only once and

must be requested no more than 7 working

days from the time the original negative

test result wa s reported to the employer by

the MRO. Hair specimens may be re - collected

only once to perform repeat confirmation

testing under the provisions of Section

112.0455(9)(a), F.S.

b. Specimens that test positive as

specified in subparagraph 59A -

24.006(4)(e) 1., F.A.C., on initial

immunoassay tests, but test negative as

specified in paragraph 59A - 24.006(4)(f),

F.A.C., on confirmation shall be reported as

negative.

34. Under these procedures, the test result for

opiates/codeine would have been reported as neg ative. In any

event, the failure of the specimen collection process to meet

minimal standards designed to protect the integrity of the

collected sample requires that the results of the tests be

rejected as unreliable.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of Nursing,

enter a Final Order dismissing the Amended Administrative

Complaint filed against Respondent Deborah Ketz.

DONE AND ENTERED this 5th day of S eptember, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of September, 2002.

COPIES FURNISHED :

Alexis J. DeCaprio, Esquire

Division of Medical Quality Assur ance

Bureau of Health Care Practitioner Regulation

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Suzanne H. Suarez, Esquire

447 3rd Avenue, North

Suite 404

St. Petersburg, Florida 33701

William W. Large, General C ounsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C.

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C02

Tallahassee, Florida 32399 - 3252

Reginald D. Dixon, Esquire

Division of Medical Quality Assurance

Bureau of Health Care Practitioner Regulation

Department of Health

4052 Bald Cy press Way, Bin C65

Tallahassee, Florida 32399 - 3265

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.