11-0904-9752-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA BOARD OF NURSING

 

 

In the Matter of Steve K. Levi, L.P.N. License No. 41737-6

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

            The above-entitled matter came on for a prehearing conference before Administrative Law Judge Barbara L. Neilson of the Minnesota Office of Administrative Hearings at 2:30 p.m. on Tuesday, August 15, 1995, at the Board of Nursing Office, Suite 108, 2700 University Avenue West, St. Paul, Minnesota.  Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103-2106, appeared on behalf of the Review Panel of the Minnesota Board of Nursing (“the Board”).  There was no appearance by or on behalf of the Respondent, Steve K. Levi.  The record closed on August 24, 1995, upon receipt of the last submission from the Board.

            This Report is a recommendation, not a final decision.  The Board of Nursing will make the final decision after a review of the record which may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations contained herein.  Pursuant to 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 Joyce M. Schowalter, Executive Director, Minnesota Board of Nursing, 2700 University Avenue West, Suite 108, St. Paul, Minnesota 55104, telephone number 612/642-0567, to ascertain the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUE

            The issue in this contested case proceeding is whether or not disciplinary action should be taken against the L.P.N. license of the Respondent on the grounds set forth in Minn. Stat. § 148.261 (1992). 

            Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.      The Notice of and Order for Prehearing Conference and Hearing in this matter was served upon the Respondent by first-class mail at 5650 Brandlwood Court, White Bear Lake, Minnesota 55110, on April 27, 1995.  That address was the last known address for the Respondent according to the records of the Board of Nursing.

2.      The Notice of and Order for Prehearing Conference and Hearing served on the Respondent contained the following informational notice in the paragraph ordering the prehearing conference:

Licensee is hereby urged to attend; failure to do so may prejudice his rights in this and any subsequent proceedings in this matter and may result in the allegations contained herein being taken as true, and may be the basis for the revocation, suspension, or imposition of other disciplinary action against Licensee’s license.

3.      Mr. Levi called counsel for the Board on May 30, 1995.  He informed counsel that his current address is P.O. Box 9491, Cedar Rapids, Iowa 52409, and that the White Bear Lake, Minnesota, address to which the Notice of Prehearing Conference and Hearing was sent is the home of his father-in-law.  He indicated to counsel that his father-in-law had sent him the Notice of and Order for Prehearing Conference and Hearing.  He also requested a continuance of the June 16, 1995, prehearing conference date and expressed a willingness to discuss possible terms of settlement with the Board.  He asked that the prehearing conference be rescheduled for August and that he be allowed to participate in the prehearing conference by telephone.  He further told counsel for the Board that he did not have a telephone but would provide counsel with a number where he could be reached.  Counsel for the Board agreed to forward Mr. Levi’s requests to the Administrative Law Judge.  Counsel for the Board then contacted the Administrative Law Judge.

4.      The Administrative Law Judge granted a continuance of the prehearing conference to August 15, 1995, at 2:30 p.m., and agreed to allow Mr. Levi to participate by telephone.  Counsel for the Board sent Mr. Levi a letter confirming the continuance and reminding him that he should provide counsel or the Administrative Law Judge with a telephone number where he could be reached that day.

5.      The Respondent did not file any Notice of Appearance with the Administrative Law Judge, provide his telephone number to counsel for the Board or to the Administrative Law Judge, or make any further prehearing request for a continuance or any other relief.  When the Administrative Law Judge contacted long distance information on August 15 in an attempt to ascertain Mr. Levi’s telephone number, the Administrative Law Judge was told that the number was unpublished.  The Respondent did not appear by telephone or otherwise at the prehearing conference scheduled for August 15, 1995, or have an appearance made on his behalf.

6.      Because the Respondent failed to appear at the prehearing conference in this matter, he is in default.  Pursuant to Minn. Rules pt. 1400.6000 (1993), the allegations contained in the Notice of and Order for Prehearing Conference and Hearing are hereby taken as true and incorporated into these Findings of Fact.

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

CONCLUSIONS OF LAW

1.     The Minnesota Board of Nursing and the Administrative Law Judge have jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50, 148.261, and 214.10 (1992).

2.     The Board of Nursing has given proper notice of the hearing in this matter and has fulfilled all relevant substantive and procedural requirements of law or rule.

3.     The Minnesota Board of Nursing has the authority to take disciplinary action against licensed practical nurses, including the Respondent, under Minn. Stat. §§ 148.261 and 148.262 (1992). 

4.     The rules of the Board of Nursing require licensees to maintain with the Board a correct mailing address for the purpose of receiving Board communications or notices.  Minn. Rules pt. 6310.2900, subp. 1 (1993). 

5.     Minn. Stat. §148.261, subd. 1 (1992), provides, in pertinent part, as follows:

The board shall have power to deny, revoke, suspend, limit, or condition the license and registration of any person to practice professional or practical nursing pursuant to sections 148.171 to 148.285, or to otherwise discipline a licensee or applicant as described in section 148.262.  The following are grounds for disciplinary action:

* * *

(5)  Failure to or inability to perform professional or practical nursing . . . with reasonable skill and safety . . . .

(6)  Engaging in unprofessional conduct including, but not limited to, a departure from or failure to conform . . . to the minimal standards of acceptable and prevailing professional or practical nursing practice . . . .

(7)  Delegating or accepting the delegation of a nursing function or a prescribed health care function when the delegation or acceptance could reasonably be expected to result in unsafe or ineffective patient care.

* * *

(17)  Violating . . . a state or federal law relating to the practice of professional or practical nursing . . . .

6.     Pursuant to Minn. Stat. § 148.265 (1992), “[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 and providing copies of patient or other records in the nurse’s possession, as reasonably requested by the board, to assist the board in its investigation and to appear at conferences and hearings scheduled by the board . . . .”

7.     The Respondent is in default herein under Minn. Rules pt. 1400.6000 (1993) as a result of his failure to appear at the prehearing conference.

8.     Under Minn. Rules pt. 1400 6000 (1993), the allegations contained in the Notice of and Order for Prehearing Conference and Hearing may be taken as true or deemed proved without further evidence when a party fails to appear at the hearing.

9.     Under Minn. Rules pt. 1400.7300, subp. 5 (1993), the Board of Nursing has the burden of establishing by a preponderance of the evidence the statutory violations charged.

10.     As a result of the Respondent’s default, the Board of Nursing has met its burden of proof.

11.     The Respondent’s conduct as set forth in the Notice of and Order for Prehearing Conference and Hearing and incorporated herein pursuant to Finding of Fact No. 7 violates Minn. Stat. §§ 148.261, subd. 1(5), (6), (7), and (17), and 148.265 (1992). 

12.     As a result of the statutory violations set forth in Conclusion No. 12, the Board of Nursing has the power to deny, suspend, revoke, or restrict the Respondent’s license, or to otherwise discipline him as set forth in Minn. Stat. §148.262 (1992).

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

RECOMMENDATION

IT IS HEREBY RESPECTUFLLY RECOMMENDED that the Board of Nursing take disciplinary action against the L.P.N. license of the Respondent, Steve K. Levi.

Dated this 29th day of August, 1995.

 

                                                                             

s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

Reported:  Default.

 

NOTICE

Pursuant to Minn. Stat. § 1462, subd. 1, the Agency is required to serve its final decision upon each party and the Administrative Law Judge by first-class mail.