18-004813PL Department Of Health, Board Of Nursing vs. Adenike Adebiyi, R.N. Status: Closed Recommended Order on Tuesday, December 11, 2018.

Summary: Respondent's refusal to refrain from nursing practice after she missed three random drug tests was failure to comply with the terms of her monitoring agreement. The fact that no drug abuse was ever shown did not constitute good cause for such failure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

NURSING,

Petitioner,

vs. Case No. 18 - 4813PL

ADENIKE ADEBIYI, R.N.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 29, 2018, a hearing was held in Miami, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Angela Chiang, Esquire

Judson Searcy, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Adenike Adebiyi, pro se

219 Menores Drive, Apartment 3

Coral Gables, Florida 33131

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent was

terminated from a treatment program for impaired practitioners

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

monito ring contract entered into by the licensee, in violation of

section 456.072(1)(hh), Florida Statutes (2016), 1/ as set forth in

the Administrative Complaint; and, if so, what is the appropriate

sanction.

PRELIMINARY STATEMENT

On June 16, 2017, the Departmen t of Health (Petitioner or

Department) filed an Administrative Complaint against Adenike

Adebiyi, R.N. (Respondent or Ms. Adebiyi) , on behalf of the Board

of Nursing (Board). The complaint charged Respondent with being

terminated from a treatment program for impaired practitioners

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

monitoring contract. Respondent disputed material facts alleged

in the complaint and requested an administrative hearing, which

was held on October 29, 2018.

Alth ough Respondent failed to timely respond to Petitioner ' s

First Request for Admissions, she disputed some of them during a

telephone hearing on Petitioner ' s Motion to Deem Admissions

Admitted and to Relinquish Jurisdiction, and she was permitted to

withdraw those admissions. At the hearing, Admissions 1, 3, 6,

and 12 were not disputed, were accepted, and to the extent

relevant, have been made a part of the Findings of Fact below.

Petitioner offered the telephone testimony of Dr. Shannon

Large, chief execu tive officer at Intervention Program for Nurses

(IPN), and that of Ms. Miranda Bullington, a case manager at IPN.

Petitioner also offered four exhibits. Exhibit P - 1 was admitted

over Respondent ' s objection , and Exhibits P - 2 through P - 4 were

admitted into evidence without objection.

Respondent testified on her own behalf and offered five

exhibits at hearing. Exhibit R - 1 was rejected as not relevant,

and Exhibits R - 2 through R - 5 were admitted. Respondent was given

ten days after hearing to late - file addit ional exhibits, with

Petitioner ' s objections to be filed within five days thereafter.

Respondent timely filed nine additional exhibits: Exhibits R - 6

through R - 14. Petitioner filed objections to seven of the late -

filed exhibits, followed by Respondent ' s response to those

objections. All late - filed exhibits were admitted, consisting

of: Exhibits R - 6, an email from Ms. Adebiyi to Ms. King , dated

March 10, 2015; R - 7, a handwritten note from the Circuit Court

of Cook County, Illinois, dated February 27, 200 7; R - 8, a

handwritten note on Sinai Health System letterhead advising that

Ms. Adebiyi ' s depression is in remission; R - 9, a typed " Emergency

Request to Be Heard by the Board of Nursing " signed by

Ms. Adebiyi , dated November 30, 2015, with certificate of

se rvice; R - 10, a six - page Petition for Hearing Rights/Mediation

addressed to the Board, dated March 13, 2015; R - 11, a certificate

of service , dated April 22, 2016, preceded by the final paragraph

of a document requesting the Board to terminate Ms. Adebiyi ' s

relationship with IPN; R - 12, a letter from Community Mental

Health Council , dated April 24, 2007, advising that Ms. Adebiyi

has not been diagnosed with, and is not experiencing symptoms of,

mental illness; R - 13, a letter from Dr. Theodore Treese to IPN ,

da ted September 22, 2015 (already contained at pages 248 - 250 of

Petitioner ' s Exhibit P - 2); and R - 14, a Final Order of the Board,

dated December 21, 2012, in C ase No. 2011 - 02946 (a duplicate of

Petitioner ' s Exhibit P - 3).

The final hearing T ranscript was filed on November 16, 2018.

Respondent filed a " Potential Resolution to this case " on

November 5, 2018, and Petitioner filed a Proposed Recommended

Order on November 26, 2018, both of which were considered in

preparation of this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of nursing on behalf of the State of

Florida, pursuant to section 20.43 and chapters 456 and 464,

Florida Statutes. The Board is charged with final agency action

with respect to nurses licensed pursuant to chapter 464.

2. At all times material to this proceeding, Ms. Adebiyi

was a registered nurse, having been issued license number

RN 9429602. As a registered nurse, Ms. Adebiyi was subject to

regulation by the Department.

3. As stipulated by the parties, IPN is the impaired

practitioners program o f the Board, designated pursuant to

section 456.076. IPN monitors the evaluation, care, and

treatment of impaired nurses. IPN also provides for the exchange

of information between treatment providers and the Department for

the protection of the public.

4. In a Final Order of the Board issued December 21, 2012,

Ms. Adebiyi ' s earlier license to practice as a registered nurse

was suspended until she appeared before the Board to demon strate

her ability to safely practice nursing, including an in - depth

psychological evaluation coordinated through IPN. The basis for

the suspension was that she had failed to timely report that she

had been found guilty of crimes that constituted grounds for

disciplinary action. This earlier license subsequently expired.

5. In March 2015, as part of her efforts to reinstate her

licen s e, Ms. Adebiyi contacted IPN. After communication with the

Board, IPN requested that she submit to an independent medical

evaluation and gave her a list of approved providers.

6. On April 15, 2015, Dr. Jack Abramson conducted an

evaluation of Ms. Adebiyi, which included some psychological

testing. His report diagnosis under Axis I of DSM - 5 was

delusional disorder, ruling out manic psychosis. Though he

admitted that the diagnosis was not firmly established because it

was based upon only one period of examination, he stated it was

clear that Ms. Adebiyi would not be able to practice nursing with

reasonable skill and safety at that time, and recommended mental

health treatment and monitoring on a regular basis by an

organization such as IPN.

7. After discussing her disagreement with portions of

Dr. Abramson ' s evaluation with IPN, Ms. Adebiyi wanted a second

opinion, and set up an evaluation on July 15, 2015, with

Dr. Theodore Treese. She did not notify IPN about this

evaluation until after it had been completed. Dr. Treese

diagnosed Ms. Adebiyi with unspecified psychosis; major

depressive disorder, recurrent episode, in par tial or unspecified

remission; and unspecified personality disorder.

8. Dreese recommended that Ms. Adebiyi undergo " a full

battery of psychological/psychometric testing for diagnostic

clarification, treatment recommendations, and clarification of

cog nitive functioning to include ability of demonstration for

safety to practice, " but ultimately was unable to find a

psychologist who could perform the testing in Ms. Adebiyi ' s

native language, Yoruba.

9. Dreese concluded that Ms. Adebiyi might benefi t from

having individual psychotherapy and psychiatric support, IPN

participation, and continued diagnostic workup including UDS

(urine drug screen) testing, as this approach might allow her to

later complete psychological testing without difficulty and to

ultimately be capable of practicing nursing.

10. On October 30, 2015, Ms. Adebiyi signed and entered

into a monitoring contract with IPN. The IPN program to which

she agreed had a projected active monitoring period from

October 2, 2015, through October 1, 2020, and required compliance

with both the monitoring contract and the IPN Participant Manual ,

which outlines the terms of IPN participation.

11. Under the IPN program, Ms. Adebiyi was required to

undergo random toxicology screening, participate in i ndividual

therapy, and submit quarterly self - reports. She was required to

immediately notify and obtain approval from IPN prior to starting

employment or making any change in any healthcare - related

position. She was further required to participate in and

successfully complete therapy, and to provide her therapist with

a copy of the monitoring requirement. Ms. Adebiyi understood

these conditions and knowingly entered into the IPN program.

12. Dr. Large is certified as an advanced practice

addictions nurs e and serves as the chief executive officer at

IPN. She credibly testified, and it is found, that even if a

professional has a mental health diagnosis with no evidence of

drug use, if there has been a specific recommendation from an

evaluator, IPN may inc lude testing because the use of

psychoactive substances like alcohol or drugs may negatively

impact someone ' s psychiatric state. The IPN Participant Manual

provides that three instances of material noncompliance,

including unexcused missed toxicology scre ens, are grounds for

IPN termination.

13. On November 13, 2015, Ms. Adebiyi submitted an

application for nursing licensure by endorsement to the Board.

On March 3, 2016, the Board filed its Notice of Intent to approve

Ms. Adebiyi ' s application with condi tions, requiring her to

comply with any and all terms and conditions imposed by IPN.

14. On or about March 23, 2016, the Board issued

Ms. Adebiyi a license to practice as a registered nurse in

Florida conditioned upon, among other things, her continued

p articipation with IPN.

15. On September 6, 2016, Ms. Adebiyi was selected to

provide a urine sample for random toxicology screening, as

required under her monitoring contract. Ms. Adebiyi left a phone

message around noon telling IPN that she would be un able to

provide a sample that day. Ms. Bullington returned her call and

advised her that if she failed to provide a sample it would count

as an instance of material noncompliance. Ms. Adebiyi did not

provide a sample on September 6, but completed a self - test the

following day. Ms. Bullington advised Ms. Adebiyi that the self -

test would " resolve " her material noncompliance and advised her

that she must provide a sample on the day she was selected.

16. On September 22, 2016, Ms. Bullington and Suzanne

Kin kle, IPN ' s chief nursing director, placed a telephone call to

Ms. Adebiyi regarding documentation that Ms. Adebiyi had

submitted from Mr . Vega, Ms. Adebiyi ' s therapist, regarding her

ability to safely return to work. Ms. Bullington advised

Ms. Adebiyi tha t her return to work evaluation must be completed

by an approved IPN provider and again provided her with a list of

IPN - approved evaluator options.

17. On October 25, 2016, Ms. Adebiyi submitted to a

fitness - for - duty independent medical evaluation conduct ed by

Dr. Treese. Again, Ms. Adebiyi did not notify IPN that she was

undertaking this examination until after it was completed and IPN

had to send Dreese the referral paperwork afterward. In his

report dated November 1, 2016, Dreese noted no sign s that

would suggest that Ms. Adebiyi was suffering from a substance

abuse disorder, assessed problems related to psychosocial

circumstances, and concluded that she was capable of practicing

as a registered nurse with reasonable safety and skill provided

t hat she remained in compliance with IPN.

18. On November 4, 2016, IPN sent a letter to Ms. Adebiyi

notifying her that IPN approved her return to work in nursing.

Among other requirements, the letter notified Ms. Adebiyi that

she was required to notify a nd obtain approval from IPN prior to

starting employment or making any change in any healthcare -

related position.

19. Ms. Adebiyi was selected to provide a urine sample for

random toxicology screening on November 18, 2016. She failed to

do so. IPN noti fied Ms. Adebiyi that the missed screening was

considered a material noncompliance.

20. Respondent again failed to provide a urine sample for

toxicology screening on January 23, 2017. Due to the number

of missed random toxicology screenings, IPN policy r equired

Ms. Adebiyi to refrain from nursing practice and participate

in an IPN - facilitated evaluation. On January 24, 2017,

Ms. Bullington sent a letter to Ms. Adebiyi advising her that

IPN required her to immediately refrain from nursing practice.

The l etter also required Ms. Adebiyi to participate in an IPN -

facilitated evaluation and provided a list of three IPN - approved

evaluators. The letter advised that failure to schedule and keep

an appointment would result in her immediate termination from

IPN.

2 1. On January 27, 2017, Ms. Bullington placed a call to

Ms. Adebiyi. Ms. Adebiyi stated that she refused to undergo an

evaluation or refrain from practice and told Ms. Bullington that

she was going to continue working as a nurse part - time.

22. Dr. Larg e credibly testified, and it is found, that

refusing to refrain from practice, once instructed to do so,

constitutes material noncompliance and is grounds for termination

of a monitoring contract.

23. Ms. Adebiyi ' s IPN contract was terminated on

January 27, 2017, based on the determination that Ms. Adebiyi

refused to refrain from practice.

24. Ms. Adebiyi participated in IPN from October 2015 until

January 27, 2017, approximately 15 months. During that time, she

complied with the terms of her monitori ng contract, providing

samples for toxicology screening on approximately 15 different

occasions and submitting four quarterly self - reports for 2017.

25. Ms. Adebiyi testified that she only agreed to an

evaluation through IPN and that she never entered int o a

monitoring contract. She also testified that she was not

required to participate in the random drug screening tests

because she had never used drugs. Ms. Adebiyi ' s testimony on

these matters was not credible and is rejected. Ms. Adebiyi did

not have good cause for her failure to comply with the terms of

her monitoring contract. However, Ms. Adebiyi ' s testimony that

it has never been shown that she uses drugs and that the

screening tests were costly to her is accepted. Ms. Adebiyi

credibly testified that the cost of the monitoring program

created a financial hardship on her.

26. There was no showing in the record that Ms. Adebiyi has

ever caused actual damage, physical or otherwise, to a patient

under her care, or that her violations of IPN procedur es caused

such damage.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2018).

28. A proceeding to su spend, revoke, or impose other

discipline upon a professional license is penal in nature. State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491

(Fla. 1973). Petitioner must therefore prove the charges against

Respondent by clear and convin cing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

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

1996)).

29. The clear and convincing standard of proof has been

described by the Florida Supreme Co urt:

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 explicit and the witnesses must be

lacking in confusion as to the facts in issue.

The evidence must be of such 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 Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

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

30. D isciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by constr uction. "

Griffis v. Fish & Wildlife Conser. Comm ' n , 57 So. 3d 929, 931

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

31. Petitioner charged Respondent with violation of

section 456.072(1)(hh ), which provided, in relevant part:

(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 pract itioner

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 progra m.

32. Petitioner proved by clear and convincing evidence that

IPN is a treatment program for impaired practitioners, which is

overseen by an impaired practitioner consultant as described in

section 456.076.

33. Petitioner proved by clear and convincing evidence that

Respondent entered into a monitoring contract with IPN on

October 30, 2015, and was terminated from that program for

failure to comply, without good cause, with the terms of that

contract on January 27, 2017.

34. Respondent ' s contention tha t she never agreed to enter

into a monitoring program with IPN, but instead only agreed to an

evaluation, is contradicted by the plain language of the

agreement that she signed on October 30, 2015. She knowingly

entered into a monitoring program and succe ssfully participated

in that program for many months.

35. Respondent ' s secondary argument is that she does not

use drugs or alcohol, does not need a treatment program, and was

not required to comply with the agreement. This argument is

rejected. While t he evidence does not prove drug or alcohol

abuse by Respondent, the requirement for testing to rule out

substance abuse was clearly set forth in the IPN contract that

Respondent agreed to, and she was required to comply with its

terms regardless of whether or not she was engaged in substance

abuse.

36. Respondent did not have good cause for her failure to

comply with her IPN m onitoring c ontract.

37. Petitioner proved by clear and convincing evidence that

Respondent violated section 456.072(1)(hh) .

Penalty

38. The Board imposes disciplinary action upon licensees in

accordance with disciplinary guidelines set by rule. Florida

Administrative Code Rule 64B9 - 8.006(3)(g) provided that the

recommended penalty for the first offense of being terminated

from a tre atment program for impaired practitioners for failure

to comply without good cause with the terms of the monitoring

contract should range from a " $250 fine, suspension, and IPN

evaluation to a $500 fine and suspension. "

39. Section 456.072(4) provided tha t i n addition to any

other discipline imposed under section 456.072, a professional

board shall assess costs related to the investigation and

prosecution of the case.

40. Rule 64B9 - 8.006(5)(b) provided c ircumstances that could

be considered for purposes of mitigation or aggravation of the

penalty included, but were not limited to, the following:

1. The danger to the public.

2. Previous disciplinary action against the

licensee in this or any other jurisdiction.

3. The length of time the licensee has

p racticed.

4. The actual damage, physical or otherwise,

caused by the violation.

5. The deterrent effect of the penalty

imposed.

6. Any efforts at rehabilitation.

7. Attempts by the licensee to correct or

stop violations, or refusal by the licensee

to correct or stop violations.

8. Cost of treatment.

9. Financial hardship.

10. Cost of disciplinary proceedings.

41. There was no showing in the record that Respondent has

caused actual damage, physical or otherwise, to a patient or that

her viola tion of IPN procedures has caused such damage. An

administrative fine would pose financial hardship on Respondent.

These mitigating factors in the record warrant slight downward

departure from the guideline penalties set forth in the rule.

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 Adenike Adebiyi, R.N., in violation of

section 456.072(1)(hh), Florida Statutes; suspending her license

as a r egistered n urse until completion of a successful evaluation

by the Intervention Program for Nurses; and imposing costs of

investigation and prosecution.

DONE AND ENTERED this 1 1 th day of December , 2018 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 1 1 th day of December , 2018 .

ENDNOTE

1/ All references to the Florida Statutes or provisions of the

Florida Administrative Code refer to versions in effect in

January 2017, when the alleged offense took place, e xcept as

otherwise indicated.

COPIES FURNISHED:

Angela Chiang, Esquire

Judson Searcy, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Adenike Adebiyi

219 Menores Drive , Apartment 3

Coral Gables, Florida 33131

(eServed)

Louise Wilhite - St Laurent, Interim Gen eral Counsel

Florida Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Joe Baker, Jr., Executive Director

Florida Depar tment of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399

(eServed)

Jody Bryant Newman, EdD, EdS

Florida Department of Health

4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399

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.