09-000611PL Department Of Health, Board Of Nursing vs. Nancy Ellen Cunningham, R.N. Status: Closed Recommended Order on Tuesday, June 9, 2009.

Summary: Petitioner proved by clear and convincing evidence that Respondent was dismissed from an approved treatment program without good cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 09-0611PL

)

NANCY ELLEN CUNNINGHAM, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

On April 15, 2009, a duly-noticed hearing was held by means

of video teleconferencing with sites in Daytona Beach and

Tallahassee, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Walter T.S. Widener, Esquire

William Freeman Miller, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Paul Kwilecki, Esquire

629 Peninsula Drive

Daytona Beach, Florida 32118

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent committed

the violation alleged in the Administrative Complaint and if so,

what penalty should be imposed?

PRELIMINARY STATEMENT

On October 27, 2008, the Department of Health (Petitioner or

Department) filed an Administrative Complaint alleging that

Respondent violated Section 464.018(1)(hh), Florida Statutes

(2007), by being terminated from a treatment program for impaired

practitioners for failure to comply without good cause with the

terms of the monitoring or treatment contract or not successfully

completing any drug or alcohol treatment program. Respondent

filed an Election of Rights disputing the allegations in the

Administrative Complaint and requesting a hearing pursuant to

Section 120.57(1), Florida Statutes. The case was referred to

the Division of Administrative Hearings (DOAH or the Division)

for assignment of an administrative law judge.

A Notice of Hearing issued February 13, 2009, scheduling the

final hearing for April 15, 2009, by means of video

teleconferencing, and the case proceeded as scheduled. At

hearing, Joint Exhibit A was admitted into evidence. The

Department presented the testimony of two witnesses and

Petitioner's Exhibits A through M were admitted into evidence.

Respondent testified on her own behalf, but presented no

exhibits.

The proceedings were recorded and the Transcript was filed

with the Division on May 5, 2009. Proposed Recommended Orders

were submitted by both parties on May 14, 2009, and have been

carefully considered in the preparation of this Recommended

Order. Unless otherwise indicated, all references to the Florida

Statutes are to the codification in effect at the time of the

conduct giving rise to this proceeding, i.e. , 2007.

FINDINGS OF FACT

1. Respondent is a licensed registered nurse in the State

of Florida, holding license number RN 2802012.

2. In late 2004, Respondent was employed as a nurse by

Florida Hospital Deland. At that time, Respondent was

experiencing a problem with alcohol use that resulted in

complaints of alcohol on her breath when she reported to work and

possible intoxication on the job.

3. As a result, she was referred to the Employee Assistance

Program (EAP) at the hospital, and suspended from work for a

period of three days. The EAP Program referred her to the

Intervention Project for Nurses (IPN).

4. IPN is an alternative to discipline program established

by legislation in 1983. It is a program authorized pursuant to

Section 456.076, Florida Statutes. IPN works through a contract

with the Department of Health, Board of Nursing and monitors

nurses with substance abuse, dependence, psychiatric illnesses,

physical illnesses, and sexual misconduct issues and attempts to

assure that licensees with the above-referenced problems are

receiving adequate treatment and are safe to practice.

5. On December 8, 2004, Respondent was evaluated by Nancy

Ackerman of the Orlando Regional Chemical Dependency Program.

Respondent was diagnosed with alcohol dependence, rule out

depression, chemical dependency. Based upon this evaluation and

diagnosis, the IPN Treatment Team recommended that Respondent

receive intensive outpatient treatment, no less than 3 days per

week, and contract with IPN for monitoring.

6. The length of a contract with IPN depends on the

diagnosis a participant receives. If a participant is diagnosed

with alcohol abuse, the contract is generally for two years, with

review for completion after one year of compliant monitoring. A

diagnosis of alcohol dependence, as with Respondent, requires a

five-year contract. The difference between the two contracts is

based upon the difference in criteria for the two diagnoses.

7. Consistent with the criteria in the Diagnostic and

Statistical Manual IV (DSM-IV), dependence has more factors to

consider in terms of consequences for alcohol use. A longer

contract for persons with a dependence diagnosis is geared toward

reducing the chance of relapse by providing for a longer

monitoring period.

8. On or about January 28, 2005, Respondent voluntarily

entered into a monitoring contract with IPN. As part of her

contract, she was required to complete intensive outpatient

treatment, attend weekly nurse support group meetings, attend

AA/NA meetings, and participate in random drug testing.

9. At the time Respondent signed her contract with IPN, she

was provided with a copy of the Participant Manual, which

outlines IPN's policies and requirements.

10. IPN uses urine drug screens to determine whether a

participant is using mood-altering drugs or alcohol.

11. A urine sample is considered to be too dilute for

testing if the creatinine and specific gravity levels are low.

When a sample is too dilute for testing, there is a concern that

the sample can be masking the use of a mood-altering substance.

12. For the period from February 2, 2005, to March 31,

2008, Respondent provided 44 urine samples for random drug

screening. The majority of her urine samples registered low

creatinine levels but were sufficient for testing purposes. Of

those 44 samples, however, eight were too dilute for testing.

Those urine screens were submitted on the following dates:

March 28, 2007; June 25, 2007; September 25, 2007; October 5,

2007; October 23, 2007; December 27, 2007; January 14, 2008; and

February 5, 2008.

13. When a participant has a urine specimen that is too

dilute for testing, IPN's policy is to contact the participant to

submit to an additional test. If two specimens in a row are

dilute, IPN will send a warning letter to the participant,

counseling them about the need to have the urine samples provided

first thing in the morning and advising the participant to

decrease their water intake before providing the sample. This

letter also advises the participant that there may be a physical

condition causing the dilute specimens that should be evaluated.

If there is a second incident where two consecutive drug

specimens are too dilute for testing, the participant would

receive a second letter advising them that the dilute urine

samples cannot be treated as a negative drug screen, and advising

the participant to schedule an appointment with his or her

medical provider to rule out a physical cause for the dilute

specimens.

14. On October 5, 2007, Respondent submitted a urine sample

that was too dilute for testing. It was her second consecutive

dilute sample. Consistent with IPN policy, on October 9, 2007,

Lorraine Busch, Respondent's Case Manager, sent her a letter

advising her that she had submitted two consecutive dilute

samples. The letter advised,

Dilute urine drug screens may indicate a

physical condition that you should have

evaluated. For urine drug screen purposes,

IPN recommends that you attempt to give the

most concentrated specimen possible in order

to avoid questions about the accuracy of your

urine drug screen.

You may need a physical examination to

determine if there is a physiological basis

for your urine to be dilute. If you are

someone who ingests a lot of fluids, you may

need to cut down on your intake of liquids

several hours prior to your urine drug

screen. You may also want to try to submit

an early morning urine specimen, which tends

to be more concentrated.

15. There is no clear indication how Respondent responded

to this letter. However, on February 5, 2008, and February 13,

2008, Respondent again had consecutive urine specimens that were

considered dilute. On February 26, 2008, Ms. Busch wrote to

Respondent, advising her that the clinical team had discussed her

recurrent dilute urine specimens and directed her to schedule an

appointment with her primary care provider to discuss the issue.

She also provided a letter to present to the Respondent's primary

care provider, which requested a comprehensive physical exam to

determine if there was a physical condition causing the recurrent

dilute screens. The letter requested that results of the

physical exam be sent to the IPN office, along with the primary

care provider's impression regarding any physical condition that

may produce the results.

16. Respondent made an appointment to see her primary care

provider, Dr. Patel. A urinalysis was performed and the results

forwarded to IPN which indicated normal levels. However,

Respondent took issue with IPN's directions and Dr. Patel's

suggested course of action, and on March 28, 2008, wrote to her

Case Manager, stating in pertinent part:

I feel the need to communicate to IPN of how

insane I believe the request for a humane

being to be subjected to the medical system

for tests no one knows nothing about. To

imply someone might have a physical problem

is a psyhic hit. How many times we have seen

Drs. think they know something and so surg

and nothing there and they die.

With more people in holistic health &

science, we know if you tell someone they are

sick they become sick. The mind, body

conscience is an amazing study.

I am sending you information on the water I

drink. I eat a healthy diet. Excercize. I

feel great. I went to my primary Dr. and got

an urinalysis. After decreasing my water

intake x 1 week. My specific gravity remains

<. he="" doesn't="" know="" why.="" the="" next="" thing="">

would order another urinalsis with complete

dehydration x 24 hours. Now I am asking IPN

in their group conscience if this is

something they want to be a part of to

another human being.

It is against my spritual beliefs to be

submitted to the medical system and unneeded

tests.

I am very grateful to IPN I was very lost &

didn't know what to do. You showed me the

way. The knowledge, wisdom & higher

consciencness that is achievable is amazing.

Thanks to yall, I am able to share it.

Thanks for letting me share. (Spelling and

grammar as in original.)

17. On April 22, 2008, Ms. Busch responded to Respondent's

letter, reminding her that the urine drug screen is an important

monitoring tool and a part of the contract Respondent signed.

Ms. Busch instructed Respondent to have Dr. Patel send

documentation to IPN indicating whether or not he feels there is

a diagnosis to support her dilute urine drug screens.

18. Ms Cunningham sent another letter dated April 15, 2008,

and received by IPN on April 22, 2009, stating:

I am requesting an early end to my contract.

My enrollment as student healer, medium, &

minister will be very involved with classes

and study. This is my chosen path now. I

prefer to keep an untarnished nursing

license, however its in Gods hands now. I

thank you for putting me towards my path.

19. Generally, a participant in IPN is allowed to terminate

his or her contract early for good cause. A participant is

considered to have good cause for early termination when he or

she is deployed for active duty in the armed forces.

Compassionate release is also allowed when a nurse is no longer

physically or mentally able to practice his or her profession and

will not be practicing as a nurse ever again. Personal feelings

toward the practice of traditional medicine, the desire to

consume large quantities of oxygenated water, making healthy

lifestyle changes, a reluctance to submit to physical

examinations or taking classes toward spiritual pursuits are not

considered good cause for early termination of the IPN contract.

20. The Participant Manual which Respondent received

specifically addresses failure to progress and dismissal from the

IPN program. The Manual provides in pertinent part:

Failure to progress is defined as IPN

Advocacy Contract noncompliance that results

in dismissal from IPN and subsequent report

to the DOH/BON. The primary elements

indicating failure to progress are:

1. Failure to comply with terms of your IPN

Advocacy Contract and the requirements of IPN

participation.

2. Failure to obtain IPN facilitated

evaluation(s) and/or comply with treatment as

recommended by evaluator(s) and required for

IPN participation.

3. Unacceptable or limited demonstration of

progress as determined by the IPN clinical

team and treatment providers.

The statutes and rules that govern IPN

mandate that IPN participants must

demonstrate progress while being monitored by

IPN. By law, any IPN participant is to be

reported to DOH/FDON if failure to progress

occurs.

* * *

DISMISSAL

Specific circumstances which are considered

grounds for dismissal of an IPN participant

include:

1. Non-compliance with the IPN Advocacy

Contract.

2. Failure to progress.

3. Attempting to work or working in nursing

without IPN approval.

4. Relocation outside of the State of

Florida without IPN approval.

5. Request for dismissal by the IPN

participant.

At the time of dismissal, IPN will forward a

written report to the DOH/FBON with

information regarding any alleged violations

of the Nurse Practice Act, reasons for

dismissal, and any safety concerns the

dismissed nurse may present. . . .

21. Consistent with IPN policy and the express terms of the

Participation Manual, on April 22, 2008, Respondent was advised

by letter that her request for early termination of her contract

had been denied, and that she needed to complete her contract,

which would end January 20, 2010. She was reminded that "[s]ince

IPN is a voluntary program, if you wish to discontinue

participation, you may do so. However, as you know, your file

will be sent to the Department of Health for whatever action they

deem appropriate."

22. On April 24, 2009, Respondent again wrote to her Case

Manager, stating,

I have decided to discontinue my

participation in IPN after much prayer and

meditation. I live to share experience

strength & hope, activly in AA and to

everyone. Its wonderful to live your spitual

Truths. I will remain forever grateful to

IPN for showing me how to get help. I had so

much fear then, today its faith experience

strength & hope. (Spelling and grammar as in

original.)

Thanks again,

Nancy Cunningham

23. As a result, on April 29, 2009, Ms. Busch sent

Respondent a letter notifying her that she had been dismissed

from the IPN effective immediately for failure to comply with the

conditions of her contract. She was also notified that her file

would be forwarded to the Department of Health.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

25. Petitioner is the state agency charged with the

licensing and regulation of nursing pursuant to Section 20.43 and

Chapters 456 and 464, Florida Statutes.

26. Because this is a license disciplinary proceeding,

Petitioner has the burden to prove the allegations against

Respondent by clear and convincing evidence. Department of

Banking and Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

27. The Administrative Complaint charged Respondent with

violating Section 456.072(1)(hh), Florida Statutes, which

provides:

456.072 Grounds for discipline; penalties;

enforcement.--

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(hh) 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 monitoring or treatment contract

entered into by the licensee, or for not

successfully completing any drug treatment or

alcohol treatment program.

28. The Department has proven the allegations in the

Administrative Complaint by clear and convincing evidence. The

terms of Respondent's IPN contract make it abundantly clear that

submission of urine specimens for testing is an essential aspect

of her contract with IPN. It is also abundantly clear that the

specimens submitted must be suitable for testing. IPN's policies

for dealing with dilute specimens are reasonable and necessary to

insure that appropriate monitoring of drug and alcohol use may

take place.

29. Respondent's reasons for not wanting to comply with

IPN's request for consultation with her physician would not be

good cause. She was not deployed by the military and she was not

prevented from practicing nursing by reason of a physical or

mental disability. She simply did not want to do what was

requested of her, despite the terms of her IPN contract, which

she entered voluntarily. However, the Department made it clear

at hearing that she was not dismissed for failure to follow her

doctor's suggestions. She was dismissed from the IPN program

because she chose to be dismissed. Quite simply, she no longer

wanted to comply with IPN's requirements and chose not to do so.

30. Respondent has argued that her compliance for

approximately three years of her five-year contract should be

considered substantial compliance. This claim is without merit.

As stated in the findings of fact, the contract for those nurses

suffering from alcohol dependence is five years because of

considerations listed in the DSM-IV, and the many life situations

that could lead a participant to relapse. Further, nearly 20

percent of her urine specimens submitted for testing during the

course of her contract were too dilute for monitoring purposes.

Her resistance to any sort of testing to ensure that there was no

physiological basis for these dilute screens, coupled with the

repetitive nature of dilute screens and her decision to no longer

submit to the requirements of the program, is inconsistent with

the claim of substantial compliance.

31. The Board of Nursing has adopted Florida Administrative

Code Rule 64B9-8.006, which identifies the range of penalties for

violations of Chapters 456 and 464, Florida Statutes. The rule

also identifies aggravating and mitigating circumstances to

consider in determining the appropriate penalty to be imposed.

The minimum penalty for a first violation of Section

456.072(1)(hh) is a $250 fine and suspension until successful

completion or receipt of written confirmation from the treatment

program that further treatment is neither required nor

indicated. 1/ No significant evidence of aggravating or

mitigating factors has been identified.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding that Respondent has

violated Section 456.072(1)(hh), Florida Statutes; imposing a

$250 fine; and suspending Respondent's license until such time as

she undergoes an IPN evaluation and complies with any and all

recommendations IPN may make, including resumption of her IPN

contract, consistent with Florida Administrative Code Rule 64B9-

8.006(1)(d).

DONE AND ENTERED this 9th day of June, 2009, in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June, 2009.

ENDNOTE

1/ The rule identifies the violation as §456.072(1)(gg), Fla.

Stat. However, the violation was renumbered in § 456.072 as (hh)

in 2006. §2, Ch. 2006-207, Laws of Fla. The rule has not been

amended since that time.

COPIES FURNISHED:

Walter T. S. Widener, Esquire

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-3265

Paul Kwilecki, Jr., Esquire

629 North Peninsula Drive

Daytona Beach, Florida 32118

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

Rick Garcia, Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

Patricia Dittman, Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1703

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.