96-005580 Robert Thomas vs. Department Of Veterans Affairs Status: Closed Recommended Order on Thursday, June 5, 1997.

Summary: Petitioner violated rules and resident and substance abuse contracts engaged in pursuant to those rules. Therefore, for alcohol use, he should be dismissed from home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5580

)

DEPARTMENT OF VETERANS' AFFAIRS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 20, 1997, in Lake City, Florida, before P. Michael

Ruff, a duly designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Thomas, pro se

c/o Veterans' Domiciliary Home

1300 Sycamore Lane

Lake City, Florida 32025

For Respondent: Ronald S. Frankel, Esquire

Department of Veterans' Affairs

Post Office Box 31003

St. Petersburg, Florida 33731

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether

the petitioner should be dismissed from the Veterans' Domiciliary

Home of Florida pursuant to legal authorities cited herein and

for the factual reasons cited herein.

PRELIMINARY STATEMENT

This cause arose upon notification to the Respondent Robert

Thomas, on October 2, 1996, that he was to be dismissed from his

residency as a member of the Veterans' Domiciliary Home (Home) in

Lake City, Florida for violations of his "Resident Contract,"

"Addiction Recovery Support Contract" and his "Self-Administered

Medication Contract" which are provided for and constituted by

the statutes and rules cited herein. The Petitioner timely

sought a formal proceeding to contest his dismissal and the

instant proceeding ensued.

The cause came on for hearing as noticed. Inasmuch as the

Respondent named above is attempting to alter the status quo and

dismiss the Petitioner from his residency in the subject

facility, it was required to proceed first with the burden of

proof. The Respondent produced the testimony of Ms. Polly Tyler,

the Administrator of the Domiciliary Home and a registered nurse;

Ms. Donna Harris, a senior licensed practical nurse (LPN); Ms.

Sharon Johnson, LPN, Ms. Michelle Dicks, Senior Case Manager and

Lawrence Davis, the Petitioner's counselor. The Petitioner

presented his own testimony and that of Jim Hanusek, Robert

Lipscomb, William Friedly, Jerry Lust, Robert H. Duncan, Jr.,

Hope Turner, and Mary Ellen MacDuffie. Petitioner adduced seven

exhibits into evidence and the Respondent presented ten exhibits

which were admitted into evidence. Upon the conclusion of the

proceeding, the parties were accorded the right to submit

proposed recommended orders which have been considered in the

rendition of this recommended order.

FINDINGS OF FACT

1. The Florida Department of Veterans' Affairs is an agency

of the State of Florida charged by the Legislature with

administering and regulating various benefits and assistance

programs for Florida resident veterans. The Veterans'

Domiciliary Home of Florida (Home) is an assisted living facility

as defined in Chapter 400, Florida Statutes. It provides

shelter, sustenance and incidental medical care or temporary care

for eligible veterans who suffer from a disability, disease or

defect that incapacitates them from earning a living but who do

not need hospitalization or skilled nursing services. It

attempts to assist them in attaining maximum physical mental and

social well-being through rehabilitative programs so as to

restore into their highest level of functioning.

2. Under the provisions of Chapter 296, Florida Statutes

and Section 55-11.005, Florida Administrative Code, a veteran

cannot be mentally ill, habitually inebriated or addicted to the

use of controlled substances in order to be eligible to be

admitted to the Home and to remain a resident therein.

3. The Home is also licensed by the Agency for Health Care

Administration as an Assisted Living Facility. It is also

mandated to follow the statutes and rules administered by the

Department of Elder Affairs contained in Chapter 58A, Florida

Administrative Code. Under certain circumstances, as stated

herein, the Executive Director of the Department of Veterans'

Affairs refers dismissal decisions from the home administrator to

the Division of Administrative Hearings for formal adjudication.

4. Pursuant to Section 400.424, Florida Statutes, an

assisted living facility is required to offer a contract to all

residents which sets forth financial matters, rights, and

obligations of the residents of the assisted living facility.

Rule 58A-5.024(2)(a), Florida Administrative Code, provides that

a resident contract shall be given to all residents, and that the

rights, duties and obligations of residents other than those

specified in Section 400.428, as to residents rights, may be

placed in that contract. Rule 58A-5.0181, Florida Administrative

Code, states that prior to or at the time of admission, a new

resident shall enter into a contract which meets the requirements

of Rule 58A-5.024(2)(a), Florida Administrative Code.

5. On June 13, 1996, the Petitioner was given a Certificate

of Eligibility for pre-screen examination prior to his admittance

to the Home. Because he was identified as a substance abuser,

based upon his "driving under the influence" conviction in

Broward County, the Certificate of Eligibility made clear to him

that he would be required to sign a six-month Addiction Recovery

Support Contract and a "Mental Health Contract Supplement" as a

stipulation for his admission. That letter also notified him

that he would be required to have his sobriety verified by a

mental health or substance abuse professional prior to pre-

screening. See Respondent's Exhibit 9 in evidence.

6. Thereafter on July 3, 1996, as provided by the relevant

Florida Statutes and rules cited herein, the Home and the

Petitioner entered into a contract, as a condition of the

Petitioner's admission into the Home, which has a supervision of

Self-Administered Medication requirement and an Addiction

Recovery Support Supplement Contract as a requirement.

7. The Supervision of Self-Administered Medication

Supplement specifically provides that individuals under such

contract are not allowed to secure their own narcotic medication

from a nursing station for self-administration. They must have

the drugs dispensed to them for self-administration by a nursing

staff employee at the Home.

8. The six month Addictions Recovery Support Contract which

was signed by the Petitioner on June 26, 1996, provides that upon

reasonable suspicion of being under the influence of alcohol or

illegal drugs the Petitioner must consent to testing, either

through blood, saliva, or supervised urine tests. That contract

further provides that if the Petitioner refuses to allow such

tests or interferes in any way with the staffs performance of

these tests, he may be dismissed from the Home.

9. Thereafter, in the late evening hours of September 17th

and 18th, 1996, Ms. Donna Harris and Sharon Johnson, LPN's who

were then on duty at the Home, observed the Petitioner, without

authority, reaching into a drug bin which contained narcotic

substances, ostensibly to retrieve his own medications. This is

a violation of the Self-Administered Medication Supplement

Contract and other procedures of the Home. Later that same

evening, Ms. Donna Harris detected the odor of alcohol on the

Petitioner's person and thus, having a reasonable suspicion that

he had been drinking, requested that he test for alcohol. The

Petitioner refused testing in violation of his Addiction Recovery

Support Contract.

10. On October 8, 1996, Ms. Michelle Dicks, an LPN, also

had reasonable suspicion that the Petitioner had been drinking

due to the odor of alcohol and his behavior, she observed, and

said she asked him to test based on this suspicion. The

Petitioner refused to test again, in violation of his Addiction

Recovery Support Contract.

11. On September 18, 1996, Lawrence Davis, a counselor at

the home, observed the Petitioner standing in line at a liquor

store, apparently to make a purchase. Since Mr. Davis had

information concerning the Petitioner's alleged alcohol use from

the previous evening, he requested that the Petitioner test for

alcohol use. The Petitioner agreed to test, the test was

performed and was positive for alcohol consumption.

12. Alcohol consumption is a violation of the Addiction

Recovery Support Contract as well as the terms of the

Petitioner's probation adjudged against him as a result of the

criminal conviction for driving under the influence of alcohol,

with property damage, in Broward County, Florida. Other

conditions of his probation were attendance at AA meetings,

restitution regarding the property damage and attendance at "DUI

school."

13. Lawrence Davis, the Petitioner's counselor, upon

determining that the Petitioner had apparently relapsed into

alcohol abuse, attempted to make arrangements for him to attend a

VA rehabilitation program at the U.S. Department of Veterans'

Affairs Medical Center in Lake City, a short distance up the

street from the Home. Although various appointments were made by

Mr. Davis for the Petitioner, the Petitioner refused to enroll in

the rehabilitation program at the Lake City VA Medical Center.

14. The field test for alcohol consumption has a high

probability of correctness. Certain "false positives" are

possible, based upon leaving the sample out untested for more

than two minutes. The Petitioner's sample, however, according to

credible testimony, was tested within a two minute period and

tested positive. The test within the two minutes is the

acceptable norm for a correct testing procedure promulgated by

the manufacturer of the test kit, Roche Pharmaceuticals.

15. The Petitioner was accordingly given a notice of

dismissal from the Home on October 2, 1996, for violations of the

Addiction Recovery Support Contract and for attempting to

retrieve his narcotic medications out of the bin or basket

without authority, in violation of his Self-Administered

Medications Contract. A dismissal decision was made by Executive

Director of the Department by letter of October 30, 1996 which

ultimately resulted in this proceeding.

16. Respondent's Exhibit 10 in evidence establishes the

strict alcohol and drug testing policy at the Home. It is

properly constituted in the statutory and regulatory authority

referenced herein and was appropriately followed during the

testing procedures of the Petitioner for alcohol consumption.

The use of alcohol by individuals on Addiction Recovery Support

Contracts or refusal by individuals to be tested for alcohol when

engaged in such contracts and residence in the Home, is inimical

to the proper operation of the Home. It frustrates its efforts

to rehabilitate its members and to return them as better

functioning members of society, as mandated by the requirements

of Chapter 296, Florida Statutes.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to this proceeding.

Sections 120.569(1), and 120.57(1)(a)Florida Statutes.

18. Section 296.07, Florida Statutes provides as follows:

"Certain persons ineligible.-No person shall

be received or retained in the home who is

mentally ill, habitually inebriated, or

addicted to the use of drugs, it is the

legislative intent that a member of the home

who is discharged therefrom, or voluntarily

leaves the home, because such member exhibits

mental illness, inebriation, or drug

addiction shall be referred to appropriate

federal, state, or county agencies by the

home for treatment.

19. Rule 58A-5.0182(5)(b) provides that, prior to or at the

time of admission, the facility and a resident enter into a

contract that meets the requirements of Rule 58A-5.0184(2)(a),

Florida Administrative Code. That provision provides, in

pertinent part, that resident contracts shall contain the rights,

duties and obligations of residents other than those specified in

Section 400.428, Florida Statutes. Rule 59-11.009-"Order and

Discipline of Members" provides, at paragraph (1)(a)2. "the use

or possession of non-medicinal alcohol, illegal drugs or any

controlled substance in the home or on the grounds of the home is

prohibited. Prescription drugs will be controlled by the home

and administered or supervised by the home staff." The rule then

provides at paragraph (2) as follows: "The administrator,

subject to the approval of the director, is empowered by Section

296.04, Florida Statutes, to dismiss a member of the home for any

infraction of these rules."

20. It has been shown that the Veterans Domiciliary Home of

Florida is licensed as an Assisted Living Facility, and is

governed by the rules requiring contractual requirements of the

Department of Elder Affairs and Florida Statute 400.424, Florida

Statutes.

21. Section 400.424, Florida Statutes, provides that an

Assisted Living Facility such as the respondent is required to

offer a contract to all residents which sets forth financial

matters, rights and obligations of the residents of the Assisted

Living Facility.

22. Rule 58A-5.0181, Florida Administrative Code, provides

that, prior to or at the time of admission, a resident shall

enter into a contract which meets the requirements of Rule 58A-

5.024(2)(a), Florida Administrative Code, which in turn requires

a contract to specify the rights, duties and obligations of

residents, other than those elements concerning residents' rights

which Section 400.428, Florida Statutes, requires to be placed in

the contract.

23. It has been established that, as a condition for

admission to this facility, an individual such as the Petitioner

with a substance abuse/alcohol problem must not only sign the

basic resident contract, but also an Addiction Recovery Support

Contract and a Self-Administration of Medication Supplement

Contract. The Petitioner was informed of this upon his seeking

entitlement to residency at the facility, agreed to it, and

signed the relevant contracts referenced above. There is no

question that the conduct referenced in the above findings of

fact was violative of the above-cited legal authority and the

contracts entered into pursuant to that authority. The Home may

not admit potential residents nor retain residents who use

alcohol or controlled substances or who are habitually inebriated

and the statute, rules and policies under which it operates

permit it to dismiss the member who refuses to comply with the

contract, including the provisions concerning abstention from use

of alcohol and which require that such a resident submit to

testing therefor. Residents who engage in such miscreant conduct

and who refuse to obey the above-cited legal authority and

provisions of their relevant contracts pose a substantial risk to

successful fulfillment of the mission of the Home to help the

resident obtain physical, mental and social well-being through

special rehabilitative programs to restore them to their highest

level of functioning. The Petitioner willingly violated the

agreements referenced above by using alcohol, being inebriated on

a number of occasions, refusing on a number of occasions to be

tested for alcohol and, when tested, testing positive for

alcohol.

24. In summary, it has been shown that the Veterans'

Domiciliary Home correctly carried out its statutory and

regulatory mandates with regard to its care, and ultimately the

dismissal procedure followed. The Petitioner violated his

voluntarily signed contracts on several occasions. His remaining

at the Veterans' Domiciliary Home poses a harm to its

rehabilitative programs or other patients currently residing

there and, in reality, poses a harm to the Petitioner under the

present circumstances because he injures himself by avoiding the

rehabilitative programs that have been offered to him through the

Department of Veterans Affairs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED

That a final order be entered by the Department of Veterans'

Affairs dismissing Robert Thomas a resident of the Veterans'

Domiciliary Home of Florida.

DONE AND ENTERED this 5th day of June, 1997, in Tallahassee,

Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 1997.

COPIES FURNISHED:

Major General Earl G. Peck

Executive Director

Department of Veteran's Affairs

Post Office Box 31003

St. Petersburg, Florida 33731

Ronald Frankel, General Counsel

Department of Veteran's Affairs

Post Office Box 31003

St. Petersburg, Florida 33731

Robert Thomas

c/o Veterans Domiciliary Home

1300 Sycamore Lane

Lake City, Florida 32025

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.