Opinion
No. 279 C.D. 2012
12-03-2012
Marie Fleming, Petitioner v. Department of State, State Board of Nursing, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Marie Fleming (Fleming) petitions this Court for review of the State Board of Nursing's (Board) February 1, 2012 order reaffirming its December 9, 2011 order adopting the hearing examiner's proposed order reinstating Fleming's nursing licenses subject to a three-year probation period and monitoring. The issues for this Court's review are: (1) whether the Board's decision was based on substantial evidence, and (2) whether the Board abused its discretion by determining that Fleming's license reinstatements should be subject to probationary monitoring requirements. We affirm.
Fleming held registered nurse License No. RN526447L (originally issued March 31, 1997) and licensed practical nurse License No. PN091392L (originally issued June 13, 1986).
On December 4, 2008, as a result of disciplinary action, Fleming and the Board entered into a consent agreement that imposed indefinite suspensions on her nursing licenses and set certain conditions for their reinstatement. In the consent agreement, Fleming acknowledged that she "is not able to practice both professional nursing and practical nursing with reasonable skill and safety to patients by reason of mental illness [bipolar disorder]." Certified Record (C.R.) Item 2 at ¶ 5a. According to the consent agreement, Fleming could apply for reinstatement after an evaluation and assessment from a Board-approved treatment provider acknowledging that she was fit to safely practice as a nurse, and "indicating any conditions for monitoring." C.R. Item 2 at ¶ 5d(1). The consent agreement also expressly stated that, after a hearing, Fleming "may be subject to an Order from the Board . . . granting her reinstatement request with probationary monitoring requirements." C.R. Item 2 at ¶ 5g. By December 4, 2008 order, the Board adopted the consent agreement and indefinitely suspended Fleming's nursing licenses.
By April 1, 2009 letter, Fleming informally began the reinstatement process. Documentation needed to support reinstatement was provided in October 2010. The reinstatement request and the supporting documents were filed with the Department of State on November 17, 2010. After being rescheduled numerous times, a hearing was held on June 16, 2011. At the conclusion of the hearing, the parties agreed that the record supported Fleming's reinstatement, and the record was left open for 30 days for the parties to submit proposed orders setting forth conditions. Neither party proposed conditions, and the record was closed. On August 31, 2011, the hearing examiner issued a proposed memorandum decision and order reinstating Fleming's licenses subject to a three-year suspension, which would be immediately stayed in favor of three years of probation with numerous conditions, including: monitoring by the Professional Health Monitoring Program's (PHMP) Disciplinary Monitoring Unit (DMU); submission to mental or physical evaluations and drug and alcohol testing requirements as required by PHMP; and the filing of treatment reports with PHMP at least every 90 days.
On December 9, 2011, the Board, noting that neither party filed exceptions thereto, adopted the hearing examiner's proposed decision and order. In a December 19, 2011 letter, Fleming stated that she had filed exceptions to the proposed order. On February 1, 2012, the Board issued a memorandum order addressing Fleming's issues, and reaffirming its December 9, 2011 order. Fleming appealed to this Court.
Fleming's objections were based upon the credibility determination of her witnesses, and her claim that the consent agreement did not provide for conditions on her license reinstatement. The Board denied Fleming's petition because it deemed her witnesses credible, and it found that the consent agreement did allow for conditions.
"This Court's scope of review is limited to determining whether there has been a violation of constitutional rights, errors of law committed, or whether findings of fact are supported by substantial evidence." Bethea-Tumani v. Bureau of Prof'l & Occupational Affairs, State Bd. of Nursing, 993 A.2d 921, 925 n.6 (Pa. Cmwlth. 2010).
Fleming argues that the Board's decision was not based on substantial evidence. She specifically contends that there was no basis for the Board's requirements that she, "[u]pon request of the PHMP, submit to mental or physical evaluation, examinations or interviews by a treatment provider approved by PHMP, or the PHMP," and that she
shall submit to random, unannounced and observed drug and alcohol tests, inclusive of bodily fluid, breath analysis, hair analysis, or another procedure as may be directed by PHMP for the detection of substances prohibited under this Order as recommended by a PHMP-approved provider and as directed by the PHMP.Proposed Order at ¶¶ 30, 37. We disagree.
The Board has the duty to "ensure safe nursing services for the citizens of this Commonwealth." Section 21.3 of the Board's Regulations, 49 Pa. Code § 21.3. To that end, Section 14(a) of The Professional Nursing Law (Law), 63 P.S. § 224(a), expressly authorizes the Board to "suspend . . . any license in any case where the Board shall find that . . . [t]he licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental . . . illness or condition . . . ." See also Section 16(a) of the Practical Nurse Law (Act), 63 P.S. § 666(a). Section 14(b)(6) of the Law, 63 P.S. § 224(b)(6), authorizes the Board to "[r]estore or reissue, in its discretion, a suspended license . . . and impose any disciplinary or corrective measure which it might originally have imposed." See also Section 16(b)(6) of the Act, 63 P.S. § 666(b)(6). As for the corrective measures the Board may have originally imposed, Section 14(b) of the Law states, in pertinent part:
Act of May 22, 1951, P.L. 310, as amended, 63 P.S. §§ 211-225.5.
Act of March 2, 1956, P.L. (1955) 1211, as amended, 63 P.S. §§ 651-667.8. --------
When the Board finds that the license of any nurse . . . may be . . . suspended under the terms of subsection (a), the Board may:63 P.S. § 224(b); see also Section 16(b) of the Act, 63 P.S. § 666(b).
. . . .
(3) Revoke, suspend, limit or otherwise restrict a license as determined by the Board.
(4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the Board.
(5) Suspend enforcement of its finding thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance.
. . . .
In the consent agreement, Fleming agreed that she would be subject to monitoring conditions set by Board-approved treatment providers. In addition, at Fleming's reinstatement hearing, Board-approved psychiatrist Robert Boyd (Dr. Boyd), who conducted an extensive 15-month evaluation of Fleming as part of the reinstatement process, diagnosed Fleming with Bipolar I Disorder, which was in remission. According to Dr. Boyd, Fleming had a history of self-medicating with alcohol and marijuana. Although Fleming's history reflected that she last used marijuana in 2003 and alcohol in 2005, such history together with her awareness that alcohol and marijuana are detrimental to her illness, fulfilled the criteria upon which Dr. Boyd also diagnosed her with Alcohol Abuse in Sustained Full Remission, and Cannabis Abuse in Sustained Full Remission. Because the last time Fleming went off her medications she suffered a manic episode, and becoming psychotic could endanger patients in her care, Dr. Boyd concluded that Fleming should continue the treatment and support she was receiving in case her condition became less well-controlled at any point. He recommended a treatment plan for her which included, inter alia, abstinence from drugs and alcohol because they do not mix well with her psychiatric medications, random drug and alcohol testing, active participation in Alcoholics Anonymous, as well as continued Pennsylvania Nurse Peer Assistance Program (PNAP) workplace and peer monitoring. Dr. Boyd concluded that if Fleming adhered to the treatment plan, she could practice nursing with the requisite skill and safety.
Licensed clinical psychologist Amy Wells (Dr. Wells), with whom Fleming met weekly from April 2010, after being referred by Dr. Boyd for neuropsychological testing, is an approved treatment provider for PNAP. She supplies quarterly reports to PNAP, as required by the Board's conditions, and she has conducted Fleming's random drug and alcohol testing, the results of which have all been negative. Relative to Fleming's reinstatement, she likewise recommended, inter alia, that Fleming continue to be monitored by PNAP, to be randomly tested, and to participate in individual and group therapies. Dr. Wells testified that, with the recommendations for her continued care in place, Fleming can safely return to nursing.
Fleming's PNAP case manager Dina Huth testified that she has monitored Fleming in the program since April 2010, when she was referred by Dr. Boyd. She confirmed that all of Fleming's random fluid tests have been negative. She testified that as long as Fleming maintains stability on her medications, her risk of relapse is low, and her prognosis for continued abstinence and recovery is good. She concluded that if Fleming continues to follow the recommendations made by Dr. Boyd and Dr. Wells, her licenses should be reinstated. PNAP will continue to monitor her.
Also entered into evidence at the hearing on Fleming's behalf was a June 7, 2010 letter from Dr. Yang Shan, Fleming's treating psychiatrist since June 2007. Fleming sees Dr. Shan monthly. According to the letter, Fleming is taking several medications to control her illness, she has taken them consistently, and she is not experiencing side effects. Dr. Shan opined that Fleming is capable of returning to nursing practice if she continues her current treatment.
Finally, Fleming specifically testified that she was willing to comply with all of the conditions imposed by Dr. Boyd, Dr. Wells and Ms. Huth, and any other conditions imposed by the Board, if the Board allows her to return to nursing.
"Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." City of Pittsburgh, Dep't of Pub. Safety v. Unemployment Comp. Bd. of Review, 927 A.2d 675, 676 n.1 (Pa. Cmwlth. 2007) (quotation marks omitted). The record evidence clearly supports that Fleming executed the consent agreement with the understanding that any reinstatement may include conditions. At the hearing, she agreed to comply with any conditions imposed by the Board on her reinstatement. The conditions recommended by Dr. Boyd and Dr. Wells, and supported by Ms. Huth, were consistent and made with a reasonable degree of medical certainty. Dr. Boyd and Dr. Wells agreed that Fleming should continue her medications, therapies and abstention from alcohol and drugs. Their recommendations were to insure that Fleming's condition is well monitored so as not to place her patients' safety in jeopardy. Because Fleming's submission to periodic mental or physical evaluations and drug and alcohol testing would serve those purposes, we hold that the conditions imposed by the Board's decision are based on substantial evidence.
Fleming also argues that the Board abused its discretion by determining that Fleming's license reinstatement should be subject to probationary monitoring requirements. Specifically, Fleming avers that, together with submitting to mental or physical evaluations and drug and alcohol testing requirements, the requirement that she "ensure that written treatment reports from all providers approved by PHMP are submitted to the PHMP upon request or at least every ninety (90) days after the effective date of this Order," is disproportionate, excessively harsh and unnecessary. Proposed Order at ¶ 16. We disagree.
The Pennsylvania Supreme Court has mandated: "In evaluating the 'reasonableness' of any discretionary agency action, appellate courts accord deference to agencies and reverse agency determinations only if they were made in bad faith or if they constituted a manifest or flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions." Rohrbaugh v. Pennsylvania Pub. Util. Comm'n, 556 Pa. 199, 208, 727 A.2d 1080, 1085 (1999). "Absent abuses of [this] sort . . . appellate courts should exercise judicial restraint in reviewing administrative orders." Slawek v. State Bd. of Medical Educ. & Licensure, 526 Pa. 316, 324, 586 A.2d 362, 366 (1991). "An abuse of discretion occurs when the findings are not supported by substantial evidence in the record." Airport Prof'l Office Ctr. 100 Condo. Ass'n v. Zoning Hearing Bd. of Moon Twp., 20 A.3d 649, 651-52 n.1 (Pa. Cmwlth. 2011) (quoting Coal Gas Recovery, L.P. v. Franklin Twp. Zoning Hearing Bd., 944 A.2d 832, 838 n.9 (Pa. Cmwlth. 2008). Here, the Board determined that Fleming's reinstatement should be subject to the conditions recommended by her care providers for the safety of her patients. As noted above, this finding was supported by substantial evidence. Thus, the Board did not abuse its discretion by determining that Fleming's license reinstatements should be subject to probationary monitoring requirements.
For the reasons stated herein, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 3rd day of December, 2012, the Department of State, State Board of Nursing's February 1, 2012 order reaffirming its December 9, 2011 order is affirmed.
/s/_________
ANNE E. COVEY, Judge