10-004761PL Department Of Health, Board Of Nursing vs. Cynthia L. Mcnemar, L.P.N. Status: Closed Recommended Order on Friday, January 14, 2011.

Summary: Respondent committed unprofessional conduct when an employer-ordered drug test was positive for butalbital, for which she had no valid prescription.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 10 - 4761PL

)

CYNTHIA L. MCNEMAR, L.P.N., )

)

Respondent. )

)

RECOMMENDED O RDER

On November 3, 2010 , a duly - noticed hea ring was held by

video teleconferencing with sites in Daytona Beach and

Tallahassee , Florida , before Lisa Shearer Nelson , an

Administrative Law Judge of the Division of Administrative

Hearings .

APPEARANCES

F or Petitioner: Michael G. Lawrence, Esquire

Jodi - Ann V. Johnson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Paul Kwilecki, Jr., Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 464.018(1)(h), Florida Statutes (2009), 1/ as alleged in

the Administrati ve Complaint, and if so, what penalty should be

imposed?

PRELIMINARY STATEMENT

On May 21, 2010, Petitioner, Department of Health

(Petitioner or the Department), filed an Administrative Complaint

charging Respondent, Cynthia McNemar (Respondent or Ms. McNe mar),

with violating section 464.018(1)(h), Florida Statutes.

Respondent disputed specific allegations in the

Administrative Complaint and requested a hearing pursuant to

section 120.57(1), Florida Statutes. On July 6, 2010, the

Department referred the c ase to the Division of Administrative

Hearings (Division) for assignment of an administrative law

judge.

Upon referral of the case to the Division, the parties were

directed, by means of an Initial Order, to confer and file a

Joint Response providing info rmation necessary to schedule the

case for hearing. The parties instead filed separate responses

with conflicting information. On July 19, 2010, an Order

Requiring Amended Response was issued, directing the parties to

confer and provide a Joint Response with the information required

in the Initial Order. On July 27, 2010, the parties did so and

by a Notice of Hearing dated August 2, 2010, the hearing was

schedul ed for September 2, 2010. On August 2, 2010, the parties

filed a Joint Motion for Continuance which was granted, and the

case was rescheduled for November 3, 2010.

The parties submitted a Joint Prehearing Statement that

included stipulated facts which, where relevant, have been

included in the findings of fact below. Official recognition was

tak en of sections 20.43, 464.018, and 893.03, Florida Statutes ,

and of Florida Administrative Code Rules 64B9 - 8.005 and 64B9 -

8.006. At hearing, the Department presented the testimony of

Respondent and Tyina Lomena, and Petitioner's Exhibits 1 - 5 were

admitted into evidence. Respondent testified on her own behalf

and Respondent's Exhibits 1 - 2 were also admitted.

The Department indicated at hearing that it would be

ordering the transcript of the proceedings , and some of the

exhibits were to be attached to th e transcript for transmittal to

the administrative law judge . By agreement of the parties, the

proposed recommended orders were due December 5, 2010, and both

submissions were timely filed. However, the transcript had not

been filed , and at least one Pro posed Recommended Order included

references to transcript pages. After inquiry by the

undersigned's assistant, a certified copy of the transcript was

filed at the Division on December 30, 2010; however , the copy was

incomplete. An order was issued requir ing the Department to file

either the original transcript or a statement that the Department

d id not intend for the transcript to be a part of the record of

the proceedings. On January 5, 2011 , the complete original

Transcript of the proceedings was filed with the Division.

FINDINGS OF FACT

1. The Department of Health, Board of Nursing, is the state

agency charged with the licensing and regulation of nurses in the

State of Florida pursuant to section 20.42 and chapters 456 and

464, Florida Statutes.

2. At all times material to this Administrative Complaint,

Respondent was employed by Maxim Healthcare Services (Maxim) in

Daytona Beach, Florida.

3. On or about January 11, 2010, Maxim required Respondent

to submit to an employer - ordered urine drug screen .

4. Respondent's drug screen tested positive for butalbital.

5. Butalbital is commonly prescribed for the treatment of

migraine headaches. Pursuant to section 893.03(3), Florida

Statutes, butalbital is a Schedule III controlled substance that

has a pot ential for abuse, less than the substances in Schedules

I and II, and has a currently accepted medical use in treatment

in the United States. Abuse of Schedule III drugs may lead to

moderate or low physical dependence or high psychological

dependence. A brand name for butalbital is Fioricet.

6. Respondent admits taking Fioricet, and claims that the

drug was prescribed to her for migraines, a long - standing problem

for her, by Dr. Jerry Robinson.

7. While she claims that Dr. Robinson prescribed the

Fioric et for her, she could not remember when she last saw him or

when the medicine was prescribed. She testified that she last

saw him either three to four years ago (Petitioner's Exhibit 4,

p. 8) or eight to n ine years ago (Transcript at p. 17). She also

tes tified that she received the prescription two to four years

ago (Petitioner's Exhibit 4, p. 8), or five to six years ago

(Transcript at p. 16). She did not explain how she may have

received the prescription for a controlled substance without

seeing the pr escribing physician.

8. She did not produce the prescription for the drug, and

did not present the original pill bottle which would indicate

when and where it was filled, and who prescribed it. The

original prescription, Respondent claimed, was for 30 to 40

pills, and she had two remaining when she took them the weekend

before the drug test. Her attempts to retrieve records from the

Eckerd pharmacy , where she clai med the prescription was filled ,

were unsuccessful because of the transfer of pharmacy recor ds to

successor pharmacies when Eckerd Drugs closed, and the subsequent

purge of older records.

9. Dr. Robinson died in December of 2008. His practice was

apparently taken over by Central Florida Primary Physicians, and

records of his patients are ma inta ined at this practice.

Dr. Robinson's patients who still receive care at Central Florida

Primary Physicians have medical records going back up to 30

years. Patient records for former patients who have not been

seen in ten years or more are purged.

10. U pon inquiry, at least two different staff members at

Central Florida Primary Physicians searched for medical records

related to Respondent. None was found.

11 . Respondent did not produce and , it is found , did not

have a valid prescription for Fioricet at the time of her drug

screen January 11, 2010.

12 . On January 15, 2010, Respondent filled a new

prescription for Fioricet written by Dr. Scolaro. Another

prescription for Fioricet was wr itten for her by someone in

Dr. Scolaro's office on September 21, 20 10. Neither of these

prescriptions had been filled at the time Respondent tested

positive for Fioricet on January 11, 2010.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

a ction in accordance with s ections 120.569 and 120.57(1), Florida

Statutes (2010) .

14 . Petitioner is seeking to take disciplinary action

against Respondent's license as a practical nurse. Because

disciplinary proceedings are considered to be penal proc eedings,

Petitioner has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep't. of Banking and Fin. v. Osborne Stern and Co. , 670 So. 2d

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

1987) . As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

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 lacking in confu sion as to the

facts in issue. The evidence must be of such

a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

15 . Moreover, disciplinary provisions such as section

464.018 must be strictly construed in favor of the licensee.

Elmariah v. Dep't of Prof. Reg. , 574 So. 2d 164 (Fla. 1st DCA

1990); Taylor v. Dep't of Prof. Reg. , 534 So. 782, 784 (Fla. 1st

DCA 1988).

16 . The Administrative Complaint charges Respondent with

violating section 464.018(1)(h), which makes unprofessional

conduct, as defined by board rule, a basis for disciplinary

action.

17 . Florida Administrative Code Rule 64B9 - 8.005(12)

provides that "unprofessional conduct" shall include " [t]esting

positive for any drugs under Chapter 893, F.S., on any drug

screen when the nurse does not have a prescription an d legitimate

medical reason for using such drug."

18 . The rule requires that when a nurse tests positive for

a controlled drug, he or she must have both a prescription for

the drug and a legitimate medical reason for using the drug. In

this case, Respon dent may well suffer from migraine headaches.

Her testimony in this regard is unrefuted and credible. However,

clear and convincing evidence presented at hearing indicates that

she tested positive for the Schedule III drug Fioricet and that

she did not p resent a prescriptio n that was in force for Fioricet

at the time she submitted to the drug test.

19 . Although Respondent claimed that a prescription for

Fioricet was issued several years ago by a physician who has

since died, her testimony on this issu e was not credible. The

time frame in which she claimed to have seen this physician and

to have obtained a prescription from him was elastic, stretching

over a span of several years. It is simply difficult to believe

that she was issued a prescription wi th 30 to 40 tablets between

three and six years ago, experienced migraine headaches on a

random basis during that period 2/ and still had approximately two

tablets when she took the drug the weekend before her drug test.

To use this one prescription over s uch a lengthy period of time,

whether it be three years or six years, while possible, seems

unlikely, especially when she has had two prescriptions for

Fioricet, 40 tablets each, filled in 2010 alone. The Department

has proven a violation of rule 64B9 - 8.0 05(12), and therefore a

violation of section 464.018(1)(h), by clear and convincing

evidence.

20 . Pursuant to the mandate in section 456.079, Florida

Statutes, the Board of Nursing has adopted disciplinary

guidelines to " specify a meaningful range of des ignated penalties

based upon the severity and repet ition of specific offenses."

§ 456.079(2), Fla. Stat. For a first - time violation of section

464.018(1)(h), the minimum penalty is a $50 fine, a reprimand and

probation, and continuing education. The max imum penalty,

without resort to mitigating or aggravating factors, is a $150

fine, a reprimand, and suspension followed by probation. Fla.

Admin. Code R. 64B9 - 8.006(3)(iii).

21 . Although listed for a separate statutory violation,

rule 64B9 - 8.006(3) (ff) provides that for "testing positive for

any drug, as defined in Section 112.0455, F.S., on any confirmed

preemployment or employer - ordered drug screening when the

practitioner does not have a lawful prescription and legitimate

medical reason for using such drug," the minimum penalty for a

first - time offense is a $50 fine, IPN evaluation, and probation,

and the maximum penalty is a denial of certification or $100

fine, IPN evaluation, and suspension to be followed by a term of

probation.

22 . The Department recommends that Respondent be

reprimanded, pay a $250 fine, and submit to an IPN evaluation.

Respondent recommends that the charges be dismissed. No evidence

of aggravating or mitigating factors was presented.

RECOMMENDATION

Upon consideration of the fac ts found and conclusions of law

reached, it is

RECOMMENDED that the Florida Board of Nursing enter a Final

Order finding that Respondent has committed unprofessional

conduct in violation of section 464.018(1)(h), Florida Statutes,

as defined in Florida Ad ministrative Code Rule 64B9 - 8.005(12).

It is further recommended that Respondent be reprimanded, fined

$100, and be placed on probation for one year. As a condition of

probation, it is recommended that the Board require an IPN

evaluation.

DONE AND ENT ERE D this 14th day of January, 2011 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of January , 2011 .

ENDNOTE S

1/ All references to the Florida Statutes are to the 2009

codification unless otherwise specif ied.

2/ When asked at hearing how often she had migraine headaches,

Respondent replied, "It varies. It depends on my stre ss level.

Sometimes I have them for three days straight; sometimes once a

month; sometimes it could be months. You know, I mean, I 've gone

years without having a migraine, too." Her answer to the same

question at deposition was similar: "It varies. Sometimes I

don't have a migraine for several months. Sometimes I have them

for three days in a row. I have one now."

COPIES FURNISH ED :

Jodi - Ann V. Johnson, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

Paul Kwilecki, Jr., Esquire

327 South Palmetto Avenue

Daytona Beach, Florida 32114

Rick Garcia, MS, RN, CCM

Executive Director

Board of Nu rsing

Department of Health

4052 Bald Cypress Way, C 02

Tallahassee, Florida 32399 - 1701

Dr. Jessie M. Colin, RN, Board Chair

Department of Health

4052 Bald Cypress Way, A02

Tallahassee, Florida 32399 - 1701

E. Renee Alsobrook, Acting General Counsel

Depart ment of Health

4052 Bald Cypress Way, A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, A02

Tallahassee, Florida 32399 - 1701

Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahasse e, 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 th at will

issue the final order in this case.