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7-0904-19414-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE
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In the Matter of S.S., L.P.N. |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter came on for Hearing before
Administrative Law Judge (ALJ) Richard C. Luis at the Office of Administrative
Hearings in
Whether the Respondent’s Application for Registered Nurse Licensure by examination should be denied, and whether disciplinary action should be taken against the Practical Nursing License of the Respondent for conduct constituting grounds for disciplinary action that is within the jurisdiction of the Board of Nursing to impose, specifically:
1. Procuring or attempting to procure a permit, license, or nursing registration certificate by fraud or deceit or attempting to subvert the licensing examination process in violation of Minn. Stat. § 148.261, subd. 1(2);
2. Conviction during the previous five years of a felony or gross misdemeanor reasonably related to the practice of nursing in violation of Minn. Stat. § 148.261, subd. 1(3);
3. Engaging in unprofessional conduct, including failure to conform to minimal standards of acceptable and prevailing nursing practice in violation of Minn. Stat. § 148.261, subd. 16;
4. 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); and/or
5. Failing to cooperate with an investigation of the Board in violation of Minn. Stat. §§ 148.261, subd. 1(23), and 148.265.
Based on the proceedings herein, the Administrative Law Judge makes the following:
1.
A Prehearing Conference was conducted by
telephone in this matter on February 22, 2008.
S.S. appeared at the Minnesota Board of Nursing in Minneapolis, and the
Administrative Law Judge and Assistant Attorney General Karen Andrews
participated by telephone conference call.
An Evidentiary Hearing was scheduled at that time, to convene at 10:00 a.m.
on Tuesday, April 8, 2008 at the Office of Administrative Hearings in
2. On February 27, 2008, the Administrative Law Judge issued a letter to S.S. at her last known address, 25 First Avenue Northwest, Rice, MN 56367, which letter reminded her that, if the parties were unable to resolve the matter through some form of alternative dispute resolution which would not require a hearing, that a hearing would convene at 10:00 a.m. on Thursday, April 8, 2008 at the Office of Administrative Hearings in St. Paul.
3. During the interim between the Prehearing Conference on February 22 and the scheduled Hearing on April 8, 2008, the review panel and S.S. arrived at a settlement of the matter, which settlement was to be finalized by a process that included the signing by S.S. of a proposed Stipulation and Consent Order that was mailed to her on March 28, 2008.[1] S.S. never returned a signed Stipulation and Consent Order to the Review Panel of the Board.
4. Kimberly S. Miller, a Nursing Practice Specialist on the staff of the Board of Nursing, and a member of the Board’s Review Panel in this matter, attempted to contact S.S. at the telephone number on file with the Board on eight occasions between March 28 and April 4, 2008. On all but one occasion the telephone rang for an extended time without being answered. On the other occasion, the line was busy. There was never an option to leave a message during any of these phone calls.[2]
5. On April 4, 2008, S.S. was mailed a letter from Ms. Miller, which letter reminded S.S. that she had not signed and returned to the Review Panel the proposed Stipulation and Consent Order that had been mailed to her earlier in an attempt to settle this matter. The April 4 letter reminded S.S. further that the hearing date and time of April 8, 2008 at 10:00 a.m. were still in effect, and that the Review Panel would be represented at the hearing if S.S. did not return the signed Stipulation and Consent Order by Monday, April 7, 2008. S.S. was mailed another copy of the proposed Stipulation and Consent Order to sign when she was mailed the letter of April 4, but never has returned a signed Stipulation and Consent Order to the Board Review Panel.
6. The Notice of and Order for Prehearing Conference and Hearing issued to the Respondent at the commencement of this contested case proceeding on January 18, 2008, included the following language, on page 3:
Respondent’s failure to appear at the prehearing conference, settlement conference, or hearing may result in a finding that Respondent is in default, that the allegations contained in this Notice and Order for Prehearing Conference and Hearing may be accepted as true, and its proposed action may be upheld.
7. The Respondent did not appear at the hearing, nor did she contact the Administrative Law Judge, the Office of Attorney General or the Review Panel of the Board of Nursing to seek a continuance or request for any other relief.
8. Because the Respondent failed to appear for the Hearing, she is in default.
9.
Pursuant to
Based on the Findings of Fact, the Administrative Law Judge makes the following:
1. The Administrative Law Judge and the Board of Nursing are authorized to consider the charges against the Respondent under Minn. Stat. §§ 14.50, 148.261, and 148.262.
2. The Respondent received due, proper and timely notice of the charges against her and of the time and place of the Evidentiary Hearing. All procedural requirements have been fulfilled.
3. Under Minn. Rule 1400.6000, a contested case may be decided adversely to a party who defaults. Upon default, the allegations set out in the Notice of and Order for Prehearing Conference and Hearing or other pleadings may be taken as true or deemed proved without further evidence.
4. The Respondent is in default as a result of her failure to appear at the Evidentiary Hearing. The allegations in the Notice of and Order for Hearing are taken as true and deemed proven.
5. It is appropriate to take disciplinary action against the practical nursing license of S.S., and to deny the Respondent’s application for registered nurse licensure, for engaging in unprofessional conduct, including failure to conform to minimal standards of acceptable and prevailing nursing practice, in violation of Minn. Stat. § 148.261, subd. 1(6), for 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 of Minn. Stat. §§ 148.261, subd. 1(9), and for failing to cooperate with an investigation of the Board in violation of Minn. Stat. §§ 148.261, subd. 1(23), and 148.265.
Based on the Conclusions, the Administrative Law Judge makes the following:
IT IS RECOMMENDED: that the Board of Nursing take appropriate disciplinary action against the Respondent’s license to practice practical nursing; and
IT IS RECOMMENDED FURTHER that the Board of Nursing DENY the Respondent’s application for Registered Nurse Licensure by Examination.
Dated this _30th_ day of April, 2008
/s/
Richard C. Luis
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RICHARD
C. LUIS Administrative
Law Judge |
Reported: Default
This report is a recommendation, not a final decision. The Commissioner of Labor and Industry will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner 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 Commissioner. Parties should contact
Shirley A. Brekken, Executive Director, Board of Nursing, 2829 University Avenue SE, Suite 200 Minneapolis, MN 55414, to learn the procedure for filing exceptions or presenting argument.
If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. In order to comply with this statute, the Commissioner must then return the record to the Administrative Law Judge within 10 working days to allow the Judge to determine the discipline to be imposed. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.
Under Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.