08-002106PL Department Of Health, Board Of Nursing vs. Jean Cassel, R.N. Status: Closed Recommended Order on Tuesday, September 2, 2008.

Summary: Nurse was dismissed from Intervention Project for Nurses for failure to comply with the contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING, )

)

Petitioner, )

)

vs. ) Case No. 08-2106PL

)

JEAN CASSEL, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

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

on July 9, 2008, in Clearwater, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Megan M. Blancho, Esquire

William Miller, Esquire

Department of Health

4052 Bald Cypress Way, Bin No. C-65

Tallahassee, Florida 32399

For Respondent: Louis Kwall, Esquire

Kwall, Showers, Coleman

& Barack, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

STATEMENT OF THE ISSUES

The issues in the case are whether Respondent violated

Subsections 456.072(1)(q) and 456.072(1)(gg), Florida Statutes

(2005), 1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On March 21, 2008, the Department of Health (Department)

filed a two-count Amended Administrative Complaint before the

Board of Nursing (Board) against Respondent, Jean Cassel, R.N.

(Ms. Cassel), alleging that she violated Subsections

requested an administrative hearing, and the case was forwarded

to the Division of Administrative Hearings for assignment to an

Administrative Law Judge to conduct the final hearing.

On July 7, 2008, the Department filed Petitioner’s Request

for Official Recognition. The request was granted at the final

hearing, where official recognition was taken of Subsections

Section 456.076, Florida Statutes; Florida Administrative

Code Rule 64B4-8.006, effective from February 22, 2004,

until August 2, 2005; and Florida Administrative Code

Rule 64B4-8.006, effective August 3, 2005, until July 4, 2006.

The parties filed a Joint Prehearing Stipulation in which

they stipulated to certain facts contained in Section E of the

Joint Prehearing Stipulation. To the extent relevant, those

stipulated facts have been incorporated in this Recommended

Order.

At the final hearing, Ms. Cassel filed Respondent’s Motion

to Dismiss Second Amended Administrative Complaint for Failure

to Comply with Florida Bar Rules of Civil Procedure and Failure

to Obtain the Court’s Permission to Amend. Argument was heard

on the motion, and the motion was denied at the final hearing.

At the final hearing, the Department called Ms. Cassel,

Jean D’Aprix, and Lorraine Busch as its witnesses. Petitioner’s

Exhibits 1 through 7 and 9 were admitted in evidence. At the

final hearing, Ms. Cassel testified in her own behalf, and

Respondent’s Exhibits 1, 2, 3, 5 through 10, 12, and 13 were

admitted in evidence.

The one-volume Transcript was filed on July 28, 2008. The

parties agreed to file their proposed recommended orders within

ten days of the filing of the Transcript. The parties timely

filed their Proposed Recommended Orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Board is the state agency charged with regulating

the practice of nursing pursuant to Section 20.43 and Chapters

456 and 464, Florida Statutes.

2. Ms. Cassel is and has been at all times material to

this case a licensed registered nurse in the State of Florida,

having been issued license number RN 9177327.

3. The Intervention Project for Nurses (I.P.N.) is part of

the impaired practitioner programs established pursuant to

Subsection 456.072(1), Florida Statutes. The mission of I.P.N.

is to ensure public health and safety by providing an avenue for

swift intervention and close monitoring of nurses whose practice

may be impaired due to the use, misuse, or abuse of alcohol or

drugs, or a mental and/or physical condition. Any nurse,

including employers who are nurses, are required to report any

nurse who is in violation of the Nurse Practices Act. Nurses

may be referred to I.P.N. instead of being reported to the Board

if the violation is associated with impairment due to drugs,

alcohol, psychiatric or physical problems. Nurses who are

referred to I.P.N. must voluntarily request admission to I.P.N.

4. In 2005, Ms. Cassel was hospitalized after attempting

suicide by ingesting alcohol and Amitriptyline. Amitriptyline

is an anti-depressant, which Ms. Cassel received after

completing an online application listing her symptoms.

Ms. Cassel was employed as a registered nurse with the Visiting

Nurses Association at the time of her attempted suicide.

5. Following her attempted suicide, Ms. Cassel asked an

employee at her work place about a referral program, and

Ms. Cassel was given the telephone number of I.P.N.

6. In April 2005, Ms. Cassel contacted I.P.N. to see if

I.P.N. had a referral program for depression.

7. When Ms. Cassel initially contacted I.P.N., she was

advised by I.P.N. staff that Cherry Pfau from the Visiting

Nurses Association had contacted I.P.N. about Ms. Cassel’s

attempted suicide.

8. After her initial contact with I.P.N., but prior to

entering into a contract with I.P.N., Ms. Cassel received an

evaluation by an I.P.N. approved evaluator. She was diagnosed

with alcohol abuse versus alcohol dependency and major

depressive disorder, recurrent, moderate to severe. Prior to

entering into the contract, Ms. Cassel began and entered into an

intensive outpatient treatment program, which she successfully

completed on September 25, 2005.

9. On or about August 2005, Ms. Cassel entered into a

five-year I.P.N. advocacy contract with monitoring from

August 2005 through August 2010. 2 Ms. Cassel was provided a

Participant Manual as part of the contract. Ms. Cassel read the

Participant Manual.

10. The Participant Manual provides:

USE OF MOOD-ALTERING CHEMICALS

1. IPN participants in abstinence contracts

are expected to remain free of all mood-

altering, controlled, or addictive

substances (including alcohol), over-the-

counter drugs and prescriptive drugs.

2. IPN does not determine if you can take a

mood-altering and/or over-the-counter

medication. This is a decision you and your

prescribing professional (who is aware of

your IPN participation) must make. IPN

encourages you and your prescribing

professional to explore non-mood-altering

alternative methods of pain control to

minimize risk to your recovery.

3. If there is a medical need for the use

of any mood-altering chemical, you are

required to inform your IPN Case Manager as

soon as possible, either when prescribed or

the next business day. You must submit a

fully completed Medication Report form to

IPN. If IPN does not receive a completed

Medication Report, your use of a prescribed

medication may be considered a chemical

relapse.

4. In the event a random drug screen is

positive and you have not informed IPN of

your medication use as required, your use of

the medication may be managed as a relapse.

5. You are to refrain from providing

patient care when using any prescribed mood-

altering medication until authorized to

return to practice by IPN. A negative urine

drug screen may be required prior to return

to patient care.

6. Medically necessary, frequent or

extended use of any mood-altering

medications will require that an IPN-

approved addictionist be involved in your

case to monitor your medication management.

A performance assessment and/or

neuropsychological testing to determine your

practice ability may be required.

11. The contract required Ms. Cassel to participate in

random drug testing. Testing positive on a random drug test is

deemed to be a relapse. The Participant Manual provides:

When relapse has occurred, the IPN

participant and employer will be informed

that the nurse or CNA must refrain from work

until an IPN-facilitated evaluation is

completed. . . . Nurses or CNA’s who refuse

to comply with reevaluation or treatment

recommendations will be dismissed from IPN

and reported to [Department of Health,

Florida Board of Nursing].

12. Ms. Cassel submitted to a random drug screen which

returned positive for ethanol in November 2005 while under an

abstinence contract with I.P.N. Ms. Cassel attributes the

positive test result to her having taken NyQuil for the flu.

She did not advise I.P.N. as required by the contract that she

had taken the medication, and the use of the NyQuil was managed

as a relapse.

13. Ms. Cassel received a telephone call from Lorraine

Busch, a case manager with I.P.N., advising Ms. Cassel that she

had tested positive for alcohol and that she would need to be

reevaluated. Ms. Cassel became angry and asked, “You mean I

can’t have a glass of wine with dinner?” Ms. Busch reminded

Ms. Cassel that she was in an abstinence contract. Ms. Cassel

did not tell Ms. Busch that she had taken NyQuil. Ms. Cassel

also told Ms. Busch that she was on her way to a job orientation

and that she was not going to participate in the I.P.N. any

longer because she did not think that the program was geared for

persons suffering from depression. Ms. Cassel was upset,

essentially told the I.P.N. case manager that I.P.N. could take

up on her.

14. Ms. Cassel received a letter from I.P.N. dated

November 8, 2005, informing her that, following her positive

urine drug screen for alcohol, she was required to refrain from

the nursing practice and was required to schedule an evaluation

with either Martha Brown, M.D.; Chowallur Chacko, M.D.; or

Richard Saini, M.D. Additionally, the letter advised Ms. Cassel

that her failure to schedule an appointment or failure to keep a

scheduled appointment would result in her immediate dismissal

from I.P.N. Ms. Cassel did not schedule and did not appear for

an evaluation with any of the evaluators listed in the letter.

Ms. Cassel did not refrain from the practice of nursing.

15. Ms. Cassel received a letter from I.P.N. dated

November 22, 2005, informing her that she had been dismissed

from I.P.N. effective immediately for her failure to comply with

the conditions of her I.P.N. advocacy contract. The letter also

advised Ms. Cassel that the information in Ms. Cassel’s I.P.N.

file would be forwarded to the Department in the form of a

complaint.

16. Ms. Cassel discontinued her participation with I.P.N.

prior to the end of her five-year advocacy contract with I.P.N.

She did not successfully complete her five-year monitoring

contract with I.P.N.

17. On or about February 10, 2006, the Department, through

the designee of the secretary of the Department, issued an Order

Compelling an Examination to Ms. Cassel. A Department

investigator hand-served Ms. Cassel’s attorney with a copy of

the Order Compelling an Examination. The order specified that

the examination was scheduled for March 7, 2006, at 11:00 a.m.,

at the offices of David Myers, M.D. Ms. Cassel did not provide

a written objection to the Department to the Order Compelling an

Examination prior to March 7, 2006. Ms. Cassel did not appear

at Dr. Myers’ office on March 7, 2006, for the scheduled

examination.

18. Ms. Cassel objects to the use of a physician chosen by

the Department and wants to use a physician of her own choice

for an evaluation.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

20. The Department has the burden of establishing the

allegations in the Amended Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). The

Department has alleged that Ms. Cassel has violated Subsections

456.072(1)(q) and 456.072(1)(gg), Florida Statutes, which

provide:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(q) Violating a lawful order of the

department or the board, or failing to

comply with a lawfully issued subpoena.

* * *

(gg) Being terminated from a treatment

program for impaired practitioners, which is

overseen by an impaired practitioner

consultant as described in s. 456.076, for

failure to comply, without good cause, with

the terms of the monitoring or treatment

contract entered into by the licensee, or

for not successfully completing any drug

treatment or alcohol treatment program.

21. The Department has established by clear and convincing

evidence that Ms. Cassel violated Subsection 456.072(1)(q),

Florida Statutes. The Department entered an Order Compelling an

Examination. Ms. Cassel did not file an objection to the order

prior to the scheduled time for examination and did not comply

with the order.

22. The Department has established by clear and convincing

evidence that Ms. Cassel violated Subsection 456.072(1)(gg),

Florida Statutes. Ms. Cassel was dismissed from I.P.N. for

failure to comply with the request to be reevaluated following a

positive drug screen for alcohol. Ms. Cassel was aware that her

contract with I.P.N. provided that if she tested positive for

use of alcohol she would be required to be reevaluated.

23. Ms. Cassel stated that she did not want to be in the

program because she did not feel that the program had anything

to offer her. Her reason for not complying with her I.P.N.

contract did not constitute good cause for failing to comply

with the terms of her contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Jean Cassel, R.N., violated Subsections 456.072(1)(q) and

456.072(1)(gg), Florida Statutes; suspending her license until

she undergoes an I.P.N. evaluation and follows any and all

recommendations of I.P.N.; and imposing an administrative fine

of $500.00.

DONE AND ENTERED this 2nd day of September, 2008, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 2nd day of September, 2008.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2005 version.

2/ Ms. Cassel had objected to a five-year contract at the time

she signed the contract and filed a grievance, requesting that

the duration of the contract be for two years. Her request was

denied by I.P.N.

COPIES FURNISHED :

Louis Kwall, Esquire

Kwall, Showers, Coleman

& Barack, P.A.

133 North Fort Harrison Avenue

Clearwater, Florida 33755

Megan M. Blancho, Esquire

William Miller, Esquire

Department of Health

4052 Bald Cypress Way, Bin No. C-65

Tallahassee, Florida 32399

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Rick Garcia, MS, RN, CCM,

Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C-02

Tallahassee, Florida 32399-1701

Patricia Dittman, Ph.D(C), RN, CDE,

Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way

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.