16-004560F Joanna Nelson, A.R.N.P. vs. Department Of Health, Board Of Nursing Status: Closed DOAH Final Order on Tuesday, December 13, 2016.

Summary: DOH proved substantial justification for filing Administrative Complaint for failure to comply, without good cause, with IPN monitoring agreement and being terminated from IPN. No fees awarded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANNA NELSON, A.R.N.P.,

Petitioner,

vs. Case No. 16 - 4560F

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Respondent.

_______________________________/

FINAL ORDER

On November 22, 2016, this case was presented to J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings, for a determination based on exhibits and proposed

orders.

APPEARANCES

For Petitioner: Carol C. Schriefer, Esquire

George F. Indest, III, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

For Respondent: Louise Wilhite - St Laurent, Esquire

Matthew George Witters, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether there was substantial justification

under section 57.111, Florida Statu tes (2013 - 2016), 1/ for the

Administrative Complaint filed by the Department of Health (DOH)

against Joanna Nelson, A.R.N.P., who prevailed and petitioned for

attorneyÓs fees and costs under that statute.

PRELIMINARY STATEMENT

The petition for attorneyÓs fe es and costs in this case was

filed o n August 11, 2016. On November 2, the parties filed a

joint motion to bifurcate the final hearing and first get a

determination based on exhibits and proposed orders as to whether

DOHÓs Administrative Complaint was sub stantially justified, as

defined by s ection 57.111(3) ( e ) . On November 9, they moved to

cancel the final hearing that was scheduled for November 15. The

partiesÓ exhibits and proposed orders were filed on N ovember 22.

FINDING S OF FACT

1. On August 12, 2 013, DOH received a complaint from the

Intervention Project for Nurses (IPN) that the Petitioner had

been terminated from her IPN contract due to noncompliance with

IPN monitoring requirements. DOH began to investigate and

obtained the PetitionerÓs IPN fi le.

2. IPN is the impaired practitioner program for the Board

of Nursing (Board). § 456.076, Fla. Stat. It monitors the

evaluation, care, and treatment of impaired nurses. Id. It

helps DOH and the Board to determine whether a licensee is

impaired and unsaf e to practice the profession.

§ 456.076(2)(c)1 , Fla. Stat .

3. The PetitionerÓs IPN file indicated that on July 12,

2013, the Petitioner was required to submit a blood sam ple for a

drug screen. On July 22, the Petitioner was notified that she

tested positive for alcohol. She was told that she would have to

refrain from practice, get evaluated, process the positive drug

screen with her sponsor, therapist, and facilitator, and execute

a voluntary withdrawal from practice agreement. The Petitioner

was given unti l August 5 to do those things.

4. The Petitioner believed and argued that the drug screen

had prod uced a false positive. On July 23, the PetitionerÓs

counsel notified IPN that the Petitioner was revoking the

authorizations previously given to IPN for the release of the

PetitionerÓs medical records. IPN informed the Petitioner that

it could no longer work with her if she was revoking the medical

releases. The Petitioner informed IPN that she no longer wished

to be involved with IPN and would n ot be executing the voluntary

withdrawal from practice.

5. On August 6, IPN terminated its contract with the

Petitioner for failure to comply with the conditions of her IPN

monitoring agreement.

6. In November 2013, DOH presented this information, along

with its complete investigative file, which included IPNÓs file

on the Petitioner, to a probable cause panel for its review and

consideration. DOH also presented the written arguments of

counsel for the Petitioner that probable cause should not be

found b ecause the IPN file did not contain either the positive

drug screen from July 22, or any documentation regarding its

collection, handling, storage, packaging, transportation,

preservation, or testing methodology. In addition, the

Petitioner contended that the Phosphatidyl Ethanol (PEth) blood

test administered to the Petitioner normally is used for chronic

alcoholism and was not appropriate or reliable as used in the

PetitionerÓs case. The Petitioner also advised DOH that she was

taking medication that co ntained alcoho l, without objection from

IPN.

7. On November 25, 2013, DOH asked the probable cause panel

to find probable cause that the Petitioner was in violation of

section 456.072(1)(hh) for being terminated from the IPN program

for failure to comply, without good cause, with the terms of her

IPN monitoring or treatment contract, and for not successfully

completing her drug or alcohol treatment program. The panel

considered the DOH investigative file, arguments of counsel for

DOH in favor of finding p robable cause, and the PetitionerÓs

arguments against finding probable cause , including the argument

that the evidence in the DOH investigative file would not be

sufficient to prove the charge in an administrative hearing. The

panel chair stated Ðeven tho ugh the attorneyÓs explanations may

be relevant, that does not Ï that does not do anything for the fact

that she was terminated from IPN and that she was still in a

contract with IPN.Ñ The panel found probable cause, and DOH

file d an Administrative Complain t.

8. The Petitioner disputed the charges in the

Administrative Complaint and continued to press her arguments

regarding the insufficiency of the DOH investigative file.

(S ubsequent facts are irr elevant to the determination whether

there was substantial justification for DOHÓs filing of the

Administrative Complaint. ) See Conclusions of Law.

9. In 2016, the charges we re dismissed.

CONCLUSIONS OF LAW

10. Under section 57.111, attorneyÓs fees and costs can be

awarded to a small business party who prevails in an action

initiated by a state agency. However, they are not awarded if

Ðthe actions of the agency were substantially justified.Ñ

§ 57.111(4)(a) , Fla. Stat . Agency action is s ubstantially

justified if it had Ða reasonable basis in law and fact at th e

time it was i nitiated by a state agency.Ñ £ 57.111(3)(e) , Fla.

Stat .

11. The burden is on the agency to prove that its action

was substantially justified at the time it was initiated . The

agency must demonstrate more than just that its action was not

frivolous . However , the agency does not have to prove that its

action was correct. Substantial justification is between those

standards. The closest approximation is that the agency must

pre sent an argument for its action that could satisfy a

reasonable person. See Ag. for Health Care Admin. v. MVP

Health, Inc. , 74 So. 3d 1141 , 1143 - 44 (Fla. 1st DCA 2011).

12 . The agency action in this case was initiated by the

filing of an Administrative Complaint charging the Petitioner

with a violation of section 4 56.072(1)(hh) for being terminated

from the IPN program for failure to comply, without good cause,

with the terms of her IPN monitoring or treatment contract, and

for not successfully completing her drug or alcohol treatment

program.

13 . At the time the A dministrative Complaint was filed,

there was ample justification for the agency action. The

Petitioner had been in the IPN program and was being monitored

for alcohol abuse. A blood alcohol test came back positive.

Instead of cooperating with IPNÓs requ est that she refrain from

practice, get evaluated, process the positive drug screen with

her sponsor, therapist, and facilitator, and execute a voluntary

withdrawal from practice agreement until the matter was resolved,

the PetitionerÓs response was to rev oke her medical release and

refuse to further cooperate with IPN. Although the Petitioner

raised legitimate issues about the blood alcohol test that

triggered IPNÓs demands, which would have been appropriate to

pursue both by IPN and by DOH as part of the resolution of the

matter, the PetitionerÓs response gave the probable cause panel

and DOH substantial justification to take action and charge the

Petitioner with a violation of section 456.072(1)(hh). Put

another way, DOH was substantially justified in t aking the

position that the issues raised by the Petitioner were not good

cause for her not complying with the terms of her IPN monitoring

or treatment contract, or for not successfully completing her

drug or alcohol treatment program.

14. The Petitioner cites McCloskey v. Departmen t of

Fin ancial Serv ice s , 172 So. 3d 973, 978 - 79 (Fla. 5th DCA 2015) ,

in support of her arguments that DOH was required to further

investigate the validity of her positive blood screen before

filing an administrative complaint an d that DOH applied the

incorrect law when it did not further investigate . McCloskey is

distinguishable. There, the agency reasonably should have

recognized that the statute allegedly violated should not have

been applied retroactively to the licensee . N o comparable

ignorance of the law by the agency occurred in this case.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the petition for attorneyÓs fees and costs under

section 57.111 is dismissed.

DONE AND ORDERED this 13 th da y of December , 2016 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of December , 2016 .

ENDNOTE

1/ The pertinent provisions of the statutes cited in this Final

Order have not changed since the conduct that is the subject of

the Administrative Complaint in questi on, which was filed in

November 2013 .

COPIES FURNISHED:

Carol C. Schriefer, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

(eServed)

Geo rge F. Indest, III, Esquire

The Health Law Firm

1101 Douglas Avenue

Altamonte Springs, Florida 32714

(eServed)

Louise Wilhite - St Laurent, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Nichole Chere Gea ry, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Matthew George Witters, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServe d)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

P rocedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.