OAH Docket No. 1-0904-15308-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE BOARD OF NURSING

 

 

 

In the Matter of                                               RECOMMENDED ORDER

Jodi K. Brown, L.P.N.                                      ON MOTION FOR

License No. 52982-4                                        SUMMARY DISPOSITION

                                                                                                   

                                       

          This matter is before Administrative Law Judge George A. Beck on the Minnesota Board of Nursing Review Panel’s Motion for Summary Disposition.  The Review Panel filed its motion on May 12, 2003.  No oral argument was made.  Licensee filed a letter in opposition to the Review Panel’s motion on May 27, 2003.  The Review Panel filed a response on May 30, 2003, and the record closed on that day. 

 

Ruth E. Flynn, Assistant Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, Minnesota 55101-2131, represented the Review Panel of the Minnesota Board Of Nursing. 

 

Jodi K. Brown, 7349 – 62^nd Avenue North, New Hope, MN 55428, represented herself. 

 

          Based upon all of the files, records, and proceedings herein, and for the reasons set forth in the accompanying Memorandum,

 

          IT IS HEREBY RECOMMENDED:

 

          The Minnesota Board of Nursing Review Panel’s Motion for Summary Disposition is GRANTED.

 

 

 

Dated this 20^th day of June, 2003.

 

 

                                                                      s/George A. Beck

                                                                      GEORGE A. BECK

                                                                      Administrative Law Judge

 

 

NOTICE

 

This is a recommendation, not a final decision.  The Board of Nursing will make a final decision after reviewing the administrative record, and may adopt, reject or modify this Recommendation.  Under Minn. Stat. § 14.61, the final decision of the Board shall not be made until this Recommendation has been made available to the parties to the proceeding for at least ten days.  An opportunity must be afforded to each party adversely affected by the Recommendation to file exceptions and present argument to the Board.  If the Board fails to issue a final decision within 90 days of the close of the record, this Recommendation will constitute the final Board decision under Minn. Stat. § 14.62, subd. 2.  The record closes upon the filing of comments, or upon the expiration of the deadline for doing so.  The Board must notify the parties and the Administrative Law Judge of the date on which the record closes.

 

 

MEMORANDUM

 

Factual Background

 

A.       Licensee’s Employment Problems

 

          Licensee is a 30-year-old female trained and employed as a licensed practical nurse.  Licensee’s employment history includes positions in various health care facilities around the metro area.

 

On September 3, 1999, Licensee failed a pre-employment urine toxicology screen when she applied for a licensed practical nurse (L.P.N.) position in St. Louis Park, MN.[1]  The Board of Nursing received notice on September 20, 1999, that Licensee’s urine test was positive for cannaboids.  Licensee submitted to the Board, in writing, her history with alcohol and marijuana and indicated that she had participated in chemical dependency treatment programs in the past.  Based upon Licensee’s statements, the Board referred Licensee to the Health Professional Services Program (HPSP).

 

On February 24, 2000, Licensee contacted the HPSP and further explained her heavy drug use as an adolescent.   Licensee also noted recent problems sleeping and concentrating, likely attributable to stress.  She reported that she continued to use cannabis one to two times per month to help her relax.  As part of her relationship with HPSP, Licensee signed a Terms of Participation Agreement on July 6, 2000, that required her to abstain from the use of alcohol or mood-altering drugs and immediately inform the HPSP of changes in her employment or work site.

 

On September 26, 2000, HPSP received information from Licensee’s employer, a facility in Bloomington, MN, that she had been terminated due to repeated failure to report for her shifts.  As a result, HPSP discharged Licensee from the program for failure to comply with the Terms of Participation Agreement.  Subsequent investigation into Licensee’s employment at the Bloomington facility revealed frequent tardiness, extended breaks, and failure to complete delinquent Medicare documentation upon request.  Licensee resigned from the position and was rehired multiple times.  Ultimately, Licensee resigned her employment on August 24, 2000; the facility had not actually terminated her. 

 

Licensee met with the Board’s Review Panel[2] on August 22, 2001, pursuant to a Notice of Conference, to discuss allegations regarding Licensee’s nursing practice.  The Review Panel informed Licensee of her right to have legal counsel and Licensee waived that right.  Licensee elaborated on her alcohol and marijuana abuse, reported being arrested for driving while intoxicated multiple times in the early 1990’s, and admitted to entering chemical dependency treatment solely to avoid serving a jail sentence.  Licensee stated that her heavy use of alcohol and marijuana ended in 1994, and that she has only used on occasion since that time.  The Review Panel also heard comments from Licensee regarding her history of depression. 

 

Also on August 22, 2001, Licensee admitted to problems in her past employment including pre-setting medications,[3] poor and argumentative interactions with co-workers,[4] and requests by several facilities that the temporary agency with which Licensee was working not assign Licensee to their facilities.  Licensee acknowledged that her communication and stress management skills needed improvement. 

 

Based upon Licensee’s statements, the Review Panel and Licensee agreed that corrective action was reasonable.  Pursuant to the resulting Agreement for Corrective Action,[5] signed March 9, 2002, Licensee agreed to 1) undergo a mental health evaluation within sixty days by a psychiatrist or licensed psychologist preapproved by the Review Panel, 2) comply with the recommendations of the evaluator, 3) participate in at least eight one-on-one consultations within sixty days with a nurse consultant or a mental health professional preapproved by the Review Panel, 4) comply with the recommendations of the nurse consultant or mental health professional, 5) submit a type-written report addressing her achievements in consultation, and 6) successfully participate in HPSP if recommended by the Board.  Licensee’s satisfactory completion of the corrective action would result in a dismissal of the complaint by the Review Panel.  Licensee specifically agreed that “failure to complete corrective action satisfactorily constitutes failure to cooperate under Minnesota Statutes section 148.265 (2000) and may subject Licensee to disciplinary action by the Board.”[6]

 

 

 

B.       Licensee’s Criminal Convictions

 

On February 27, 2002, Licensee was charged with one felony count of misappropriation of personal identifying materials and one misdemeanor count of fraud in obtaining a driver’s license in the St. Croix County Circuit Court in Wisconsin.[7]  The complaint was later amended to include a misdemeanor count of receiving stolen property and issuance of a worthless check.  Licensee was convicted on all counts on January 8, 2003.  The Court stayed a nine month jail sentence and gave Licensee three years’ probation, requiring her to abstain from the use of all drugs and alcohol.

 

On July 8, 2002, the Goodhue County Sheriff’s Department charged Licensee with one felony count of check forgery, one felony count of theft of more than $2,500, one gross misdemeanor count of giving a peace officer a false name, and one misdemeanor count of receiving stolen property.[8]  Another count of check forgery was added on January 14, 2003.  Licensee pled guilty to one felony count of check forgery and the remaining counts were dismissed.  A Goodhue County District Court judge stayed imposition of Licensee’s sentence and placed her on probation for a maximum of five years.  The conditions of her probation included, among other things, participation in a treatment program and therapy as well as attendance at Narcotics Anonymous meetings as recommended.

 

The Prior Lake Police Department charged Licensee on September 4, 2002, with one felony count of check forgery and one felony count of offering a forged check.[9]  Licensee pled guilty to one felony count of check forgery, and a Scott County District Court judge stayed imposition of Licensee’s sentence and placed her on probation for five years. 

 

On October 3, 2002, the Bloomington Police Department charged Licensee with three felony counts of identity theft.[10]  Licensee pled guilty to one of the charges, and a Hennepin County District Court judge stayed imposition of her sentence and placed Licensee on probation for one year.  Licensee’s probation included serving 90 days in the workhouse.

 

The Inver Grove Heights Police Department charged Licensee with one felony count of offering a forged check on November 6, 2002.[11]  Licensee pled guilty to the charge, and on March 31, 2003, a Dakota County District Court judge stayed imposition of her sentence and placed Licensee on probation for five years.  Conditions of her probation included, among other things, submitting to a chemical dependency evaluation and following all recommendations, abstaining from the use of alcohol or illegal drugs, and submitting to random chemical/substance testing.

 

Licensee’s modus operandi on each occasion generally involved purse snatching followed by use of the stolen driver’s license, credit cards and/or checks to obtain driver’s licenses in other states or additional credit cards.  Licensee often used the stolen property to claim prizes, gamble, or obtain money to gamble at local casinos.

 

C.       Licensee’s Violation of the Agreement for Corrective Action

 

When Licensee failed to submit the names of an evaluator or a nursing consultant by September 13, 2002,[12] the Review Panel served Licensee with a Notice of Conference for failure to comply with the terms of the Agreement for Corrective Action.[13]  A conference date was set for October 11, 2002.

 

On October 10, 2002, Licensee contacted the Board staff to explain that she had entered chemical dependency treatment that day and would not be able to attend the conference the following day.  Licensee admitted to using alcohol and drugs over the past eleven months and that she had not been practicing nursing during that time.[14]  The conference had to be rescheduled again when Licensee informed Board staff that she had left the treatment program in search of another one.[15] 

 

When the conference finally occurred on November 15, 2002, Licensee admitted to using methamphetamine regularly and marijuana occasionally.  Mental health and chemical dependency evaluations completed in August 2002, confirmed Licensee’s continued use of drugs and need for in-patient treatment.  Subsequently, Licensee continued to wrestle with her drug problem, stating she could only maintain “some sobriety.”[16]  During a visit to Hennepin County Medical Center on February 16, 2003, Licensee tested presumptive positive[17] for marijuana.[18]

 

 

Motion for Summary Disposition

 

          Summary disposition is the administrative equivalent to summary judgment.[19]  Summary judgment is appropriate when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.[20]  A genuine issue is one that is not a sham or frivolous, and a material fact is one which will affect the outcome of the case.[21]  The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested case matters.[22] 

 

The moving party must demonstrate that no genuine issues of material fact exist.[23]  If the moving party is successful, the nonmoving party then has the burden of proof to show specific facts are in dispute that can affect the outcome of the case.[24]  It is not sufficient for the nonmoving party to rest on mere averments or denials; it must present specific facts demonstrating a genuine issue for trial.[25]  When considering a motion for summary judgment, the Judge must view the facts in the light most favorable to the non-moving party.[26]  All doubts and factual inferences must be resolved against the moving party.[27]  If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.[28]  In this matter there is no dispute as to the facts alleged.  A summary disposition is therefore appropriate on the legal issues.

 

 

Violation of an Order of the Board or a State Law Relating to the Practice of Nursing

 

          Pursuant to Minn. Stat. § 148.261, subd. 1(18), the Board has grounds to take disciplinary action against a licensed practical nurse based upon the violation of “a rule adopted by the board, an order of the board, or a state or federal law relating to the practice of . . . practical nursing, or a state or federal narcotics or controlled substance law.”

 

Minn. Stat. § 148.265 states, in relevant part, that “[a] nurse who is the subject of an investigation by or on behalf of the board shall cooperate fully with the investigation.  Cooperation includes responding fully and promptly to any question raised by or on behalf of the board relating to the subject of the investigation . . . .”

 

When Licensee failed to obtain a mental health assessment by a preapproved evaluator by May 13, 2002, and failed to complete consultation with a preapproved nurse consultant or mental health provider on certain personal and interpersonal issues by September 13, 2002, Licensee violated the terms of the Agreement for Corrective Action.  Furthermore, by signing the Agreement, Licensee acknowledged in Paragraph 10 that failure to complete the corrective action satisfactorily would constitute failure to cooperate under Minn. Stat. § 148.265.

 

Accordingly, summary disposition in favor of the Review Panel based upon Licensee’s violation of the Agreement for Corrective Action issued by the Review Panel of the Board is appropriate.

 

 

Actual or Potential Inability to Practice Nursing with Reasonable Skill and Safety

 

          Pursuant to Minn. Stat. § 148.261, subd. 1(9), the Board may take disciplinary action against a licensed practical nurse based upon “[a]ctual or potential inability to practice nursing with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, chemicals, or any other material, or as a result of any mental or physical condition.”

 

          Licensee’s alcohol and drug usage, while most heavy in her teenage days, continues to this day.  She admitted to using marijuana and methamphetamine and tested presumptive positive for cannaboids as recently as February, 2003.  Licensee repeatedly gave statements to a mental health provider and a judge indicating lack of sobriety, and false information about length of sobriety.

 

          Though Licensee’s mental health diagnosis of major depressive disorder on March 18, 2003, is a serious matter, the Administrative Law Judge declines to recommend summary disposition in favor of the Review Panel on the basis that Licensee cannot practice nursing with reasonable skill and safety due to that disorder.  But summary disposition is appropriate on the basis of Licensee’s chronic drug problem and its actual and potential ability to affect the degree of safety and skill with which Licensee cares for patients.  Although Licensee states that she has completed treatment and is involved in aftercare, she has used drugs subsequent to treatment and acknowledges a problem with concentration.  Licensee has not cooperated with the Review Panel to establish that she can now practice nursing with safety.

 

 

Felony and Gross Misdemeanor Convictions Related to the Practice of Nursing

 

          Pursuant to Minn. Stat. § 148.261, subd. 1(3), the Board may take disciplinary action against a licensed practical nurse based upon a “[c]onviction during the previous five years of a felony or gross misdemeanor reasonably related to the practice of . . . nursing.  Conviction as used in this subdivision includes a conviction of an offense that if committed in this state would be considered a felony or gross misdemeanor without regard to its designation elsewhere . . . .”

 

          Within the last five years, Licensee has been convicted of four felonies and three gross misdemeanors in five different jurisdictions.  Because the Wisconsin judge sentenced Licensee to three concurrent 90-day sentences for her Class A Misdemeanor convictions in St. Croix County, Minnesota considers the convictions to be gross misdemeanors pursuant to Minn. Stat. § 609.02, subds. 2, 3, and 4.  Licensee pled guilty to the majority of those crimes.  Each conviction involved a similar pattern of Licensee stealing purses, money, checkbooks, and identities in order to gamble, and buy drugs, alcohol, and personal and household items.  Licensee argues that the convictions do not relate to the practice of nursing.  However, through these behaviors, Licensee has shown poor fitness of character and an inability to behave honestly, qualities that are directly related to the practice of nursing as Licensee has access to vulnerable patients, and has demonstrated an inability to control this pattern of criminal activity.  

 

          Summary disposition is appropriate in that Licensee has been convicted of felonies and gross misdemeanors within the last five years and those convictions are related to the practice of nursing.

 

Criminal Convictions Constitute Unethical Conduct

 

          Pursuant to Minn. Stat. § 148.261, subd. 1(11), the Board may take disciplinary action against a licensed practical nurse for “[e]ngaging in any unethical conduct, including, but not limited to, conduct likely to deceive, defraud, or harm the public, or demonstrating a willful or careless disregard for the health, welfare, or safety of a patient.”

 

          Licensee has repeatedly engaged in conduct that deceives and defrauds the public as shown through her criminal convictions.  She has again shown poor judgment and character and an inability to behave in a lawful manner.  Licensee’s drug usage contributes to this cycle of criminal behavior.

 

          Summary disposition is appropriate in that Licensee’s criminal convictions constitute unethical conduct.