11-0904-15376-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE BOARD OF NURSING

 

In the Matter of Cynthia A. Palafox, L.P.N. License No. 30534-9

FINDINGS OF FACT,          CONCLUSIONS, AND          RECOMMENDATION

         The above-entitled matter came on for prehearing conference before Administrative Law Judge Barbara L. Neilson commencing at 1:30 p.m. on June 11, 2003, at the offices of the Board of Nursing in Minneapolis, Minnesota.  Ruth E. Flynn, Assistant Attorney General, 445 Minnesota Street, Suite 1400, St. Paul, Minnesota  55101-2131, appeared on behalf of the Minnesota Board of Nursing.  There was no appearance by or on behalf of the Respondent, Cynthia A. Palafox, who was served at 588 Fourth St. N.W., Montgomery, MN  56069, and at P.O. Box 3754, South Padre Island, TX  78597.  The final submission from counsel for the Board was received on June 13, 2003.

NOTICE

 

This Report is a recommendation, not a final decision.  The Board will make the final decision after a review of the record.  The Board may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations.  Under Minn. Stat. § 14.61, the final decision of the Board shall not be made until this Report 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 this Report to file exceptions and present argument to the Board.  Parties should contact the Executive Director, Minnesota Board of Nursing, Suite 500, 2829 University Avenue, S.E., Minneapolis, Minnesota  55414 (telephone:  612-617-2296), to ascertain the procedure for filing exceptions or presenting argument.

 

 

STATEMENT OF THE ISSUE

 

          The issue in this case is whether or not disciplinary action should be taken against the L.P.N. license of the Respondent under Minn. Stat. § 148.261 or whether costs or a civil penalty should be imposed against the Respondent under Minn. Stat. § 148.262 based upon allegations that she has an actual or potential inability to practice nursing with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, or chemicals, or as a result of any mental or physical condition in violation of Minn. Stat. § 148.261, subd. 1(9); she has engaged in unethical conduct, including 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 in violation of Minn. Stat. § 148.261, subd. 1(11); and she has violated a rule adopted by the Board, an order of the Board, or a state or federal law relating to the practice of professional, advanced practice registered, or practical nursing, or a state or federal narcotics or controlled substance law in violation of Minn. Stat. § 148.261, subd. 1(18).

 

          Based upon the record in this matter, the Administrative Law Judge makes the following:

 

FINDINGS OF FACT

   

1.          On May 13, 2003, the Notice of and Order for Prehearing Conference and Hearing in this matter was mailed to the Respondent, Cynthia A. Palafox, at 588 Fourth St. N.W., Montgomery, MN  56069, and at P.O. Box 3754, South Padre Island, TX  78597, her most recent addresses on file with the Minnesota and Texas Boards of Nursing.[1]

 

2.          The Notice of and Order for Prehearing Conference and Hearing that was mailed to the Respondent scheduled a prehearing conference for June 11, 2003, at 1:30 p.m.  The Notice of and Order for Prehearing Conference and Hearing contained the following statement:

 

If Respondent fails to appear without the advance consent of the administrative law judge at the prehearing conference or a settlement conference in this matter, Respondent shall be deemed in default and the allegations or issues in this notice may be taken as true without further evidence and the Board may revoke, suspend, and take other action against Respondent’s license to practice practical nursing and her application for registered nurse licensure by endorsement in the State of Minnesota.  Respondent is further notified that if disciplinary action is taken against her license, she may be required to pay all costs of proceedings resulting in the action and a civil penalty as provided for in Minnesota Statutes section 148.262.[2] 

 

3.          The Respondent did not file any Notice of Appearance with the Administrative Law Judge or contact the Administrative Law Judge to request a continuance prior to the prehearing conference.  The Respondent did not personally appear at the prehearing conference in this matter scheduled for June 11, 2003, or have an appearance made on her behalf.[3]

 

4.          The allegations set forth in the Notice of and Order for Prehearing Conference, having been deemed proved and taken as true, are hereby incorporated into these Findings by reference.

 

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

 

1.    The Minnesota Board of Nursing and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 214.10, 214.103 and 14.50.

 

2.     The Respondent was given timely and proper notice of the Prehearing Conference in this matter.

 

3.          The Minnesota Board of Nursing has complied with all relevant substantive and procedural requirements of statute and rule.

 

4.          Under Minn. Rule 1400.6000, the Respondent is in default as a result of her failure to appear at the scheduled prehearing conference.

 

5.          Under Minn. Rule 1400.6000, when a party defaults, the allegations and the issues set out in the Notice of and Order for Prehearing Conference and Hearing may be taken as true and deemed proved.  The Administrative Law Judge therefore takes those allegations and issues as true and deemed proved.

 

6.     Based upon the facts set out in the Notice of and Order for Prehearing Conference and Hearing, the Respondent has violated Minn. Stat. §§ 148.261, subd. 1(9), (11), and (18), and is subject to disciplinary action by the Minnesota Board of Nursing.

   

7.     An order by the Board imposing disciplinary action against the Respondent is in the public interest.

   

 

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

   

RECOMMENDATION

   

IT IS HEREBY RESPECTFULLY RECOMMENDED: that appropriate disciplinary action be taken against Cynthia A. Palafox by the Minnesota Board of Nursing and that appropriate costs and a civil penalty be imposed. 

 

Dated:  June 19, 2003

 

/s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

 

Reported:  Default (no tape recording).

 

ADDITIONAL NOTICE

 

Pursuant to Minn. Stat. § 14.62, subd. 1, the Board of Nursing is required to serve its final decision upon each party and the Administrative Law Judge by first-class mail.