11-006177PL Department Of Health, Board Of Nursing vs. Debora Jean Elwell, L.P.N., R.N. Status: Closed Recommended Order on Tuesday, March 6, 2012.

Summary: Nurse was dismissed from IPN without good cause, violating section 456.072(1)(q), (hh).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

NURSING , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6177PL

)

DEBORA JEAN ELWELL, L.P.N., )

R.N. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final h earing was held in this case on

February 7, 2012, by video teleconference with sites in Lakeland

and Tallahassee, Florida, before Susan Belyeu Kirkland, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: John Juitt, Esquire

Mich ael Lawrence, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Debora Jean Elwell, pro se

928 Winnie Lane

Lak eland, Florida 33813

STATEMENT OF THE ISSUE S

The issues are whether Respondent violated sections

456.072(1)(q) and 456.072(1)(hh), Florida Statutes (2010), 1 and,

if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On June 16, 2011, Petitioner, Department of Health

(Department), filed a two - count Administrative Complaint before

the Board of Nursing (Board), alleging that Respondent,

Debora Jean Elwell, L.P.N., R.N. (Ms. Elwell), violated section

4 56 .072(1)(q) by violating the Board's Notice of Intent to

Approve with Conditions filed on April 21, 2008, and section

456.072(1)(hh) by being dismissed from Intervention Project for

Nurses (IPN); failing to comply without good cause with the terms

of her monitoring or treatment contract; and for not successfully

completing any drug or alcohol treatment program.

Ms. Elwell requested an administrative hearing, and the case

was forwarded to the Division of Administrative Hearings on

December 5, 2011, for assignment to an administrative law judge

to conduct a final hearing.

Official Recognition wa s taken of section 20.43, Florida

Statutes (2007 - 2011); section 456.072 ; section 456.076; and

Florida Administrative Code Rule 64B9 - 8.006 by Order dated

January 31, 2012.

At the final hearing, the Department called the following

witnesses: William Earl Spooner, Jean D'Aprix, and Jeanne Marie

King. Petitioner's Exhibits 1 through 17 were admitted in

evidence. Ms. Elwell testified in her own behalf. Respondent's

Composite Exhibit 1 was admitted in evidence.

The one - volume Transcript was filed on February 21, 2012.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The Department

filed Petitioner's Proposed Recomm ended Order on February 29,

2012. As of the date of this Recommended Order, Respondent has

not filed a post - hearing submittal.

FINDING OF FACTS

1. The Department i s the state agency charged with

regulating the practice of nursing pursuant to section 20.43,

chapter 456, and chapter 464, Florida Statutes.

2. At all times material to this proceeding, Ms. Elwe ll was

a licensed practical nurse (LPN) i n the state of Flori da, having

been issued license number PN1342121. Ms. Elwell is a licensed

registered nurse i n the state of Florida, having been issued

license number RN9285922.

3. On July 31, 2002, the Department issued an Emergency

Suspension Order (ESO) against Ms. El well. Ms. Elwell became a

participant in IPN and progressed satisfactorily in the program

to the extent that the Department entered an Order Lifting

Emergency Suspension Order on July 21, 2004.

4 . On June 21, 2005, the Department issued an

Administrativ e Complaint against Ms. Elwell for working as a LPN

while her license was suspended. A Final Order was issued on

October 25, 2005, reprimand ing Ms. Elwell's license and

suspending her license until such time as she entered the IPN

program and complie d wit h any and all terms and conditions

imposed by IPN.

5 . On December 7, 2005, Ms. Elwell entered into a contract

with I PN. The length of the contract was from December 1, 2005,

through December 1, 2010. The terms of her contract required her

to attend weekly support group meetings, to attend Alcoholic

Anonymous meetings three times per week; to participate in random

drug testing; to participate in individual therapy and provide

quarterly reports completed by the therapist; to provide a

quarterly work performance evaluation by her employer; to assure

the submission of quarterly reports from her nurse support group

facilitator; and to provide a personal letter quarterly if not

employed in nursing or medical/ healthcare. As part of the

contract, Ms. Elwell was to remain free of all mood - altering,

controlled, or addictive substances (including alcohol), over -

the - counter drugs, and prescriptive drugs.

6 . The contract provide s the following concerning dismissa l

from IPN:

Specific circumstances which are considered

grounds for dismissal of an IPN participant

include:

1. Non - compliance with IPN Advocacy

Contract.

2. Failure to progress.

3. Attempting to work or working as a nurse

o r CN A without IPN approval.

4. Relocation outside the state of Florida

without IPN approval.

5. Request for dismissal by the IPN

participant.

7. The contract further defines Ðfailure to progressÑ as

follows:

Failure to progress is defined as IPN

Advocacy Contract noncompliance that results

in dismissal from IPN and subsequent report

to DOH/FBON. The primary elements indicating

failure to progress are:

1. Failure to comply with the terms of

your IPN Advocacy Contract and the

requirements o f 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.

8. The contract defines Ðsatisfactory progressÑ as follows:

Progress in the area of concern that

precipitated your referral to the IPN must

be demonstrated while being monitored by

the IPN. Progress is demonstrated by:

1. Compliance with all aspects of your

individualized IPN Advocacy Contract.

2. Consistent positive reports from Nurse

Support Group Facilitators and treatment

provider(s) indicating stability, progress,

and consistent attendance at required

appointments a nd meetings.

3. Consistent positive reports from

employers indicating ability to practice

with reasonable skill and safety to

patients.

4. Negative random drug screens

substantiating continued abstinence if

required by IPN Advocacy Contract.

5. Consiste nt attendance and verification

of required meetings.

9 . Ms. Elwell's initial diagnos is at the beginning of her

contract in 2005 was alcohol dependence in remission since

January 26, 2003 .

10 . In 2008, Ms. Elw ell applied for licensure as a

registered nur se. On April 21, 2008, the Board issued a Notice

of Intent to Approve with Conditions. The notice stated:

It is therefore ORDERED that the application

for certification to be licensed of DEB O RA

JEAN ELWELL is hereby APPROVED subject to the

following conditions:

The license of DEBORA JEAN ELWELL will be

issued conditioned on her successful

completion of the IPN contract. The licensee

shall comply will all conditions of the IPN

Advocacy Contract or she will be in violation

of the Board Order.

1 1 . Ms. Elwell failed to attend a nurse support group

meeting scheduled for June 5, 2008. By letter dated June 6,

2008, Ms. Elwell's case manager, Jeanne King, advised Ms. Elwell

that IP N had received information from Ms. Elwell's nurse group

support facilitator (NGSF) that Ms. Elwell had failed to attend

the mandatory nurse support group meeting on June 5, 2008. The

letter stated:

A "no - show" or unexcused absence is

considered noncompli ance. Per IPN Policy and

DOH Monitoring Guidelines, this is your first

occurrence of material noncompliance.

Any further report of unexcused absence at

Nurse Support Group and/or any other material

noncompliance will require either an IPN -

facilitated eva luation and execution of a

Voluntary Withdrawal from practice, or IPN

dismissal.

12 . The Department provides guidelines for the consequences

for material noncompliance with the contract. Ms. Elwell was

aware of these guidelines, which provide:

On the fi rst incident of material non -

compliance with or inability to progress

under the program contract, IPN will require

the licensee to refrain from practice as a

condition of continued enrollment. If the

licensee refuses to refrain or otherwise

fails to compl y with program requirements,

IPN will immediately refer the matter to the

DEPARTMENT.

On the second incident of material non -

compliance with or inability to progress

under the program contract, the licensee will

have the option of (1) being terminated fr om

the program and referred immediately to the

DEPARTMENT for potential emergency action or

prosecution, not more than five business days

after confirmation of an incident of material

compliance [sic], or (2) entering into a

voluntary withdrawal from pract ice in the

form attached hereto and complying with all

other requirements of the program. . . .

On the third incident of material non -

compliance with or inability to progress

under the program contract, IPN will report

the matter to the DEPARTMENT not mor e than

five business days after confirmation of an

incident of material non - compliance. IPN

will either 1) refer the licensee for

termination from the program; 2) continue the

voluntary withdrawal of the licensee from

practice if a filed withdrawal form i s still

in effect; 3) allow the licensee to again

enter into a voluntary withdrawal from

practice using the form attached hereto and

until the licensee has complied with all

other requirements of the program.

Failure to attend group meetings, failure to submit to random

drug testing, and relapses are considered to be material non -

compliance.

13. The Department guidelines also provide:

First, second and third incidents of material

non - compliance or inability to progress are

counted beginning the date a p articipant

first enters the program, whether voluntarily

or not, until the participant has

successfully completed the program,

regardless of subsequent or sequential

contracts or other interruptions in

participation prior to successful completion

of the pr ogram. Prior successful completion

of the program shall not be counted against a

practitioner in tabulating the number of

material non - compliances in the event the

practitioner re - enters the program.

1 4 . By letter dated June 16, 2008, Ms. King notified

Ms. Elwell that based on the information provided by Ms. Elwell's

NGSF concerning the unexcused absence from the nurse support

group meeting and Ms. Elwell's negative urine drug screen, the

letter served as a warning.

1 5 . On August 4, 2008, Ms. King wrote Ms. Elwell advising

that Ms. E l well's NGSF had advised IPN that Ms. Elwell's

attendance at the nurse support group meetings had been sporadic

during July and that Ms. Elwell had advised her NGSF that she had

been absent for medical reasons. The letter ad vised that any

further absences d ue to illness would require documentation from

a hospital or physician before the absence would be considered to

be an excused absence.

1 6 . IPN did not receive an evaluation of Ms. Elwell's work

performance, which was due on March 1, 2009. By letter dated

March 16, 2009, Ms. King advised Ms. Elwell that IPN had not

received a quarterly report from Ms. Elwell's employer concerning

Ms. Elwell's work performance and required Ms. Elwell to subm it

the paperwork by March 30, 2009. The letter contained the legend

"IMPENDING DISMISSAL" at the top, which meant that failure to

comply with the directive could result in Ms. Elwell 's being

dismissed from the IPN program. Ms. Elwell sent IPN a letter

st ating that she was unemployed during the evaluation time

period.

1 7 . By letter dated April 23, 2009, Ms. King confirmed a

conversation she had had with Ms. Elwell on the same date

concerning Ms. Elwell's terminations from employment due to

frequent absenc es and Ms. Elwell's frequent absences from nurse

support group meetings. Frequents absences from employment an d

group meetings are of concern because they may be indicative of

relapse or instability in recovery. Ms. Elwell was required to

have a recovery evaluation performed by one of three evaluators

listed in the letter.

1 8 . Ms. Elwell was evaluated by Louise Buhrmann, M.D., who

recommended that Ms. Elwell submit monthly monitoring reports

from her employer. By letter dated May 13, 2009, Ms. King

advised Ms. Elwell that she would be required to submit monthly

reports from her employer.

1 9 . The contract provide s that participants who are in

five - year contracts would be eligible for transitional mo nitoring

in the fourth and fifth years of the contract. Participants who

meet the requirements for transitional monitoring will have some

of their contract restrictions lifted or modified to allow for

more flexibility in their monitoring requirements. B y letter

dated May 13, 2009, Ms. King advised Ms. Elwell that the review

for Ms. Elwell's transitional monitoring would be delayed six

months because of the concerns voiced by Ms. Elwell's NGSF and

employers. Additionally, Ms. Elwell was advised that she had to

demonstrate a period of six months without any concerns from her

NGSF or employers in order to be eligible for transitional

monitoring.

20 . Ms. Elwell had an unexcused absence from her nurse

support group meeting on January 28, 2010, and she failed to

provide a drug screen when she was randomly selected for testing

on January 27, 2010. By letter dated February 2, 2010, Ms. King

notified Ms. Elwell that she was required to refrain from all

nursing practice and to enter into a Voluntary Withdrawal fr om

practice. Ms. Elwell was also required to have a fitness - for -

duty evaluation performed by one of three evaluators listed in

the February 2, 2010, letter.

21 . A progress evaluation from Ms. Elwell's therapist and a

work performance evaluation from Ms. Elwell's employer were due

to be filed with IPN by March 1, 2010. IPN did not receive the

evaluations and sent a letter dated March 24, 2010, to Ms. Elwell

advising that the evaluations had not been received by IPN.

Ms. Elwell was given until April 7, 20 10, to submit the

paperwork. The letter contained the legend "IMPENDING

DISMISSAL," and provided that if the paperwork was not received

that Ms. Elwell would be dismissed from the IPN program.

2 2 . In April 2010, Ms. Elwell had a n admitted relapse and

drank alcohol . IPN had been unable to reach Ms. Elwell by

telephone and sent her a letter dated April 29, 2010, stating

that IPN had learned that Ms. Elwell had relapsed. Ms. Elwell

was required to refrain from nursing practice and to engage in

in - patient treatment at an IPN - approved facility.

2 3 . As a result of this relapse, Ms. Elwell entered into a

second contract with IPN which extended the IPN time for

Ms. E l well to June 20, 2015. The same conditions listed in the

abov e - paragraphs 5, 6, 7 , and 8 for the contract entered in to in

December 2005 were contained in the June 2010 contract.

2 4 . A progress evaluation from Ms. Elwell's therapist was

due to be filed on September 1, 2010. IPN did not receive the

report. By lette r dated September 20, 2010, IPN informed

Ms. Elwell that the paperwork had to be submitted no later than

October 4, 2010. The letter contained the legend "IMPENDING

DISMISSAL" and further provided:

If IPN does not receive your paperwork, I

will proce ss your dismissal and forward all

information regarding any alleged violations

of the Nurse Practice Act to the Department

of Health.

2 5 . Ms. Elwell's case was presented to the clinical team at

IPN for a determination of whether she should be dismissed from

the program. It was determined by the clinical team that

dismissal was appropriate because Ms. Elwell was failing to

progress under the terms of her contract based on the ongoing

concerns from t he NGSF regarding the continued absences, possible

impairment, and difficulty in sustaining employment. By letter

dated October 4, 2010, IPN dismissed Ms. Elwell from the IPN

program for failure to comply with the stipulations of her

contract and the Fina l Order of the Board.

2 6 . Ms. Elwell did not provide any information that would

be considered good cause for dismissal from the IPN program .

Examples of good cause would include death, active military duty

or documentation from a physician that a nurs e could never

practice again because of a disabling medical condition.

Ms. Elwell does not deny that she was terminated from four jobs

for poor attendance , that she failed to timely appear for a drug

test, and that she missed nurse support group meetings.

CONCLUSIONS OF LAW

2 7 . 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. (2011).

2 8 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

2 9 . The Department alleges that Ms. Elwell violated s ection

456.072(1)(q), which provides:

(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 of the

department.

1 3

30 . The Department alleges that Ms. Elwell violated section

456.072(1)(q) by violating the Board's Notice of Intent to

Approve with Conditions filed on April 21, 2008, by being

dismissed from IPN and by failing to successfully complete her

IPN contract.

31 . The Department alleges that Ms. Elwell violated section

456.072(1)(hh), which provides:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsecti on (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 the monitoring or treatment

contract entered into by the licensee, or for

not successfully completing any drug

treatment or alcohol treatment program.

3 2 . The Department alleges that Ms. Elwell violated section

456.072(1)(hh) by being terminated from a treatment program for

impaired practitioners, which is overseen by an impaired

practitioner consultant as described in section 456.076; by

failing to comply, without good cause, with the terms of the

monitoring or treatment contract entered into by Ms. Elwell; and

by not successfully completing any drug treatment or alcohol

treatment program.

3 3 . Ms. Elwell was in a treatment pro gram for impaired

nurses, IPN. She was dismissed from the IPN program without good

cause. The dismissal from IPN was due to Ms. Elwell's conduct.

During the five - year contract period which began on December 1,

2005, Ms. Elwell missed mandatory nurse support group meetings,

failed to timely submit required quarterly reports, failed to

timely have a drug screen done when selected to do so, and was

terminated from jobs for excessive absences. In April 2010,

Ms. Elwell relapsed and drank alcohol.

3 4 . As a result of her relapse, Ms. Elwell was required to

engage in in - patient treatment at an IPN - approved facility. S he

was also required to extend the contract beginning April 20,

2010, for another five years. Ms. Elwell was to file her

therapist report with IPN on September 1, 2010, but by

September 20, 2010, IPN still had not received the report. Based

on Ms. Elwell 's conduct there was sufficient justification to

dismiss her from the IPN program. There were no circumstances

present which would constitute good cause for dismissal.

3 5 . The Notice of Intent to Approve with Conditions issued

by the Board on April 21, 2 008, required Ms. Elwell to

successfully complete her IPN contract and to comply with all

conditions of the IPN contract. Ms. Elwell did not successfully

complete her IPN contract and she did not comply with all the

conditions of her IPN contract. Theref ore, the Department

established by clear and convincing evidence that Ms. Elwell

violated section 456.072(1)(q).

3 6 . Ms. Elwell was dismissed from IPN, and Ms. Elwell

failed to comply with the conditions of her contract with IPN

without good cause. There fore, the Department has established by

clear and convincing evidence that Ms. Elwell violated section

456.072(1)(hh).

3 7 . Pursuant to rule 64B9 - 8.006(5)(b)2, a prior

disciplinary action can be considered as an aggravating factor in

determining the approp riate discipline to be imposed. Ms. Elwell

was previously disciplined for practicing while her license was

suspended.

3 8 . The Board's order granting a conditional license was

predicated upon Ms. Elwell's completing her IPN contract and

compliance with al l conditions of the IPN contract. Ms. Elwell

has failed to meet these conditions; therefore, the appropriate

disciplinary action is revocation of her license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Nursing enter a final

order finding that Ms. Elwell violated sections 456.072(1)(q) and

456.072(1)(hh) and revoking her registered nursing license.

DONE AND ENTERED this 6th day of March , 2012 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 6th day of March , 2012 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 20 10 version.

COPIES FURNISHED:

John Juitt, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

[e-mail]

Debora Jean Elwell

928 Winnie Lane

Lakeland, Florida 33813

Joe Baker, Jr., Executive Director

Board of Nursing

Dep artment of Health

4052 Bald Cypress Way, Bin C 02

Tallahassee, Florida 32399 - 3265

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin C 02

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.