15-002494PL Department Of Health, Board Of Nursing vs. Tonya L. Shrader, R.N. Status: Closed Recommended Order on Wednesday, July 29, 2015.

Summary: Department of Health proved nurse was not able to practice nursing with reasonable skill and safety to patients.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF NURSING,

Petitioner,

vs. Case No. 15 - 2494PL

TONYA L. SHRADER, R.N.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrativ e Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH) heard this case by

video teleconference on June 30, 2015, at sites in Fort Myers and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Kristen M. Summers, Esquire

Francis A. Carbone II, Esquire

Louise Wilhite - St Laurent, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 1701

For Respondent: No Appearance

STATEMENT OF THE ISSUE S

A. Did Respondent, Tonya Shrader , R.N. (Ms. Shrader),

violate section 464.018(1)(j) , Florida Statutes (2015), 1/ by being

unable to practice nursing with reasonable skill and safety to

patients by reason of illness or use of alcohol, drugs,

narcotics, or chemicals or any other type of mat erial , or as a

result of any mental or physical condition?

B. If Ms. Shrader violated section 464.018 (1 )(j), what

penalty should be imposed?

PRELIMINARY STATEMENT

Petitioner, Department of Health (Department) , Board of

Nursing, filed its Administrative Complaint against Ms. Shrader

on February 25, 2015 . The Complaint alleged that Ms. Shrader

violated section 464.018(1)(j) by being unable to practice

nursing with reasonable skill and safety to patients by reason of

illness or use of alcohol, drugs, narc otics or chemicals or any

other type of material , or as a result of any mental or physical

condition. Ms. Shrader requested a formal administrative

hearing. The Department referred the matter to the Division of

Administrative Hearings for conduct of the hearing.

During this proceeding , Ms. Shrader did not respond to

discovery demands from the Department. She also did not respond

to or comply with O rders entered.

The undersigned conducted the hearing , as noticed , on

June 30, 2015. Ms. Shrader did not attend the hearing. The

Department ' s Exhibits 1 through 3, 4a, and 5 were admitted in

evidence. These exhibits include the deposition testimony of

Patricia Falke and Dr. Mark Sylvester submitted in lieu of live

testimony.

A T ranscript of the hearing wa s filed on July 6, 2015. The

Department timely filed a proposed recommended order.

Ms. Shrader did not file a proposed recommended order.

FINDING S OF FACT

1. Section 20.43 and chapters 456 and 464, Florida

Statutes, charge the Department of Health, Boar d of Nursing , with

the licensing and regulation of nurses.

2. At all times material to the allegations in the

Administrative Complaint, Ms. Shrader wa s a licensed registered

nurse in the State of Florida. She h olds license RN 9180605.

3. Ms. Shrader has a complicated history of psychiatric and

medical problems that affect her ability to practice nursing with

the level of skill and safety to patients required in the State

of Florida.

4. Ms. Shrader has suffered from depression since

childhood. Ms. Shrad er treated her depression with a variety of

medications, including: L ithium, Depakote, Pamelor, Elavil,

Topamax, Lamictal, and Prozac . In the past five years,

Ms. Shrader has not received treatment for her depression.

5. Ms. Shrader also suffers from an xiety . Ms. Shrader is

not receiving treatment for her anxiety.

6. In addition to depression and anxiety, Ms. Shrader

suffers from chronic severe migraines. The cause has not been

determined despite extensive neurological evaluations .

Ms. Shrader has be en prescribed Tramadol, Fiorcet, and Clonazepam

to treat her migraines . At all times material to the

Department ' s c omplaint, Ms. Shrader was prescribed Fiorcet for

her migraine symptoms.

7. Between March 24, 2012, and July 22, 2013, Ms. Shrader

complaine d of multiple neurological symptoms , including double

vision, balance and gait instability, and tingling and numbness

in her hands . Ms. Shrader elected to undergo extensive

neurological testing to rule out demyelinating disease, multiple

sclerosis, and pa lsy . The tests provided no indication that

Ms. Shrader ' s symptoms resulted from a neurological disorder.

8. At all times material to this proceeding, Ms. Shrader

worked as a registered nurse in the Neurological and Psychiatric

Unit at Gulf Coast Medical Center (Gulf Coast).

9. On December 20, 2013, Ms. Shrader took an excess ive dose

of four Fiorcet pills . She told her family that she " plans to

keep overdosing until she dies, " and that she " predicts that

[she] will be dead by the end of the year. "

10. Ms. Shrader ' s family contacted the Emergency Medical

Services . Ms. Shrader was transported to Lehigh Regional Medical

Center, where she was treated for an overdose.

11. Ms. Shrader was involuntarily admitted to SalusCare,

Inc. (SalusCare) , for inpatient psychiatric observation and

treatment.

12. On December 20, 201 3 , the Crisis Stabilization Unit

(CSU) at SalusCare conducted an in - patient psychiatric evaluation

of Ms. Shrader.

13. During the evaluation, Ms. Shrader denied past

psychiatric treatment s or p sychiatric medication . Ms. Shrader

also denied that her Fiorcet overdose was an attempted suicide .

Her statements during her SalusCare evaluation contradict her

medical charting and statements she has made , which indicate that

she has an extensive histor y of psychiatric illnesses . SalusCare

discharged Ms. Shrader on December 23, 201 3 .

14. The director of nursing at Gulf Coast contacted the

Intervention Project for Nurses (IPN) about Ms. Shrader . IPN is

an impaired practitioner consultant to the D epartme nt ' s Board of

Nursing . IPN works with nurses and monitors them for safety to

practice issues.

15. IPN contacted Ms. Shrader on January 2, 2014 , to

discuss her entering the program. Ms. Shrader denied that she

was impaired or abused any substances . She a dmitted that she was

depressed . But she said t hat she stopped her depression

treatment approximately five years earlier.

16. I PN asked Ms. Shrader to undergo an evaluation to

determine her fitness to practice nursing . Ms. Shrader scheduled

an evaluation with Theodore Treese, M.D., an expert in the

psychiatric treatment, monitoring, and care of health care

practitioners. He conducted the evaluation on January 28, 2014.

17. Dreese diagnosed Ms. Shrader with severe major

depressive disorder; alcohol ab use; opioid abuse; sedative,

anxiolytic abuse; relational problems, not otherwise specified;

and rule - out polysubstance abuse .

18. During the evaluation, Ms. Shrader attempted to hide

her in - patient psychiatric treatment at SalusCare.

19. Based on Ms. Shra der ' s diagnoses, Dreese determined

that Ms. Shrader was not capable of practicing as a registered

nurse with reasonable skill and safety to patients.

20. Dreese recommended that Ms. Shrader seek treatment

at a substance abuse treatment center at a level of at least

partial hospitalization.

21. Ms. Shrader did not agree with Dreese ' s

recommendation . IPN gave Ms. Shrader the opportunity to seek a

second opinion from another IPN - approved evaluator . IPN informed

Ms. Shrader that she needed to eith er obtain a second opinion or

enter the recommended treatment before April 14, 2014 ; otherwise ,

IPN would close her intake case file .

22. Ms. Shrader refused to obtain a second opinion or enter

into the recommended treatment . IPN closed Ms. Shrader ' s file on

April 14, 2014.

23. On December 2, 2014, Mark Sylvester, M.D., a physician

specializing in psychiatry and addiction medicine, evaluated

Ms. Shrader pursuant to Department Order.

24. Dr. Sylvester reviewed Ms. Shrader ' s medical records,

the IPN intak e case file, and the Department ' s investigative

report . Dr. Sylvester also asked Ms. Shrader to undergo a urine

and hair drug screen . Ms. Shrader did not participate in the

screens.

25. Dr. Sylvester diagnosed Ms. Shrader with recurrent

major depressive di sorder, opioid abuse, alcohol abuse,

benzodiazepine abuse, nicotine dependence, factitious disorder

versus malingering, rule - out hypochondriasis, and rule - out

conversion disorder.

26. During the evaluation, Ms. Shrader attempted to conceal

her psychiatric history, substance ab use, and symptoms of

depression . Ms. Shrader ' s unwillingness to be forthcoming during

her evaluation demonstrated denial of her symptoms and presented

a significant barrier to her treatment and recovery.

27. Dr. Sylvester concluded th at Ms. Shrader ' s poor

judgment and decision - making detrimentally affected her ability

to practice nursing. Specifically, Ms. Shrader ' s judgment in

attempting to practice nursing while impaired, her lack of

insight into her illnesses, her inability to foll ow treatment

recommendations, and her disagreement with medical professionals

showed poor judgment . Poor judgment can affect decision - making

while practicing nursing, especially in a crisis situation .

28. Dr. Sylvester concluded that Ms. Shrader was una ble to

practice nursing with reasonable skill and safety by reason of

her depression, use of alcohol, opioids, and benzodiazepines,

lack of insight into her symptoms, and poor judgment.

29. In order for Ms. Shrader to be able to practice nursing

with reaso nable skill and safety to patients, she must: undergo

treatment at a residential treatment center ; enter into an IPN

monitoring agreement ; and submit to a hair analysis drug

screening test.

30. These steps are essential to Ms. Shrader ' s recovery and

to regaining the ability to practice nursing with reasonable

skill and safety to patients. There is no evidence that

Ms. Shrader has taken any of these steps.

31. Ms. Shrader is unable to practice nursing with

reasonable skill and safety to patients.

CONCLU SIONS OF LAW

32. 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.

33. This is a proceeding to take disciplinary action

again st Ms. Shrader ' s nursing license. Because of the penal

nature of these proceedings, the Department bears the burden of

proving the allegations in the Administrative Complaint by clear

and convincing evidence. Nair v. Dep 't of Bus. & Prof ' l Reg.,

Bd. of M ed . , 654 So. 2d 205 (Fla. 1st DCA 1995). As the Supreme

Court of Florida stated :

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 confusion 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 esta blished.

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

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

34. In disciplinary proceedings, the statutes and rules for

which a violation is alleged must be strictly construed in favor

of the licensee. Elmariah v. Dep ' t of Prof ' l Reg. , 574 So. 2d

164 (Fla. 1st DCA 1990); Taylor v. Dep ' t of Prof ' l Reg. ,

534 So. 2d 782, 784 (Fla. 1st DCA 1988).

3 5 . The clear and convincing evidence prov ed that

Ms. Shrader suffered and continues to suffer fr om recurrent major

depressive disorder, opioid abuse, alcohol abuse, benzodiazepine

abuse, nicotine dependence, factitious disorder versus

malingering, rule - out hypochondriasis, and rule - out conversion

disorder.

3 6 . Clear and convincing evidence also estab lished that ,

based on Ms. Shrader ' s diagnoses and medical history, she is

unable to practice nursing with reasonable skill and safety to

patients.

3 7 . Clear and convincing evidence proved that Ms. Shrader

will not be able to practice nursing with reasonabl e skill and

safety to patients until she undergoes treatment at a residential

treatment center , enters into an IPN monitoring agreement , and

submits to a hair analysis drug screening test.

3 8 . Based on the foregoing, the clear and convincing

evidence prove d that Ms. Shrader is in violation of section

464.018(1)(j).

3 9 . Section 456.072(2) permits the Board of Nursing to

impose the following penalties: suspension or permanent

revocation of a license ; restriction of practice of license ;

imposition of an admin istrative fine ; issuance of a reprimand or

letter of concern ; placement of the licensee on probation for a

period of time ; corrective action ; and/or requirement that the

practitioner undergo remedial education.

40 . Florida Administrative Code Rule 64B9 - 8.0 06(3)(g)

provides that the Board of Nursing shall, when it finds a

licensee has violated section 464.018(1)(j), impose penalties

ranging from a $250 fine, suspension, and an IPN evaluation to a

$500 fine and suspension.

4 1 . Rule 64B9 - 8.006(5)(b) requires c onsidering the

following aggravating and mitigating circumstances when imposing

a penalty:

a . The danger to the public;

b . Previous disciplinary action against the

licensee in this or any other jurisdiction;

c . The length of time the licensee has

prac ticed;

d . The actual damage, physical or

otherwise, caused by the violation;

e . The deterrent effect of the penalty

imposed;

f . Any efforts at rehabilitation;

g . Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations;

h . Cost of treatment;

i . Financial hardship; and/or

j . Cost of disciplinary proceedings.

42 . Factors (a), (e), and (g) are relevant in this case.

They weigh as aggravating factors because they emphasize the

danger to the public and the unlikeliness that Ms. Shrader will

change her conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Department of Health,

Board of Nursing , enter a final order : finding t hat Respondent,

Tonya L. Shrader , R.N., violated section 464.018(1)(j); requiring

her to undergo an IPN evaluation; imposing a suspension of her

license until such time as she undergoes an IPN evaluation;

requiring compliance with IPN recommendations, if a ny; requiring

the payment of an administrative fine in the amount of $250.00;

and awarding costs for the investigation and prosecution of this

case, as provided in section 456.072(4) to the Department.

DONE AND ENTERED this 29th day of July , 2015 , in

Talla hassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 29th day of July , 2015 .

ENDNOTE

1/ All citations to the Florida Statutes are to the 2015 edition.

COPIES FURNISHED:

Joe Baker, Jr., Executive Dire ctor

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C - 02

Tallahassee, Florida 32399 - 3252

(eServed)

Ann - Lynn Denker, Ph.D., ARNP Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way , Bin C - 02

Tallahassee, Florida 32399 - 3252

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Kristen M. Summers, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 1701

( eServed)

Tonya Shrader, R.N.

554 Chamonix Avenue

Lehigh Acres, Florida 33974 - 5921

Francis A. Carbone II, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 1701

(eServed)

Louise Wilhite - St Laurent, Esquire

Departme nt of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 1701

(eServed)

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.