Opinion
C.A. No. 06A-04-003 (JTV).
Submitted: June 14, 2007.
Decided: September 28, 2007.
Upon Consideration of Appellant's Appeal From Decision of Department of Health and Social Services. AFFIRMED.
Ms. Cindy L. Bransfield, Pro Se.
Kevin R. Slattery, Esq., Department of Justice, Wilmington, Delaware. Attorney for Appellees.
ORDER
Upon consideration of the parties' briefs and the record of the case, it appears that:
1. Cindy L. Bransfield ("appellant") is appealing an order of Vincent P. Meconi ("appellee"), Secretary of the Department of Health and Social Services ("DHSS"), dated March 3, 2006. Appellant, a licensed Registered Nurse (RN) and Advanced Practice Nurse (APN), previously held a controlled substances prescriptive authority registration through the Delaware Office of Narcotics and Dangerous Drugs ("ONDD"), Division of Public Health ("DPH"), DHSS.
2. On December 16, 2005, Appellee issued an order to appellant requiring her to show cause why the renewal of her controlled substances registration should not be refused. The same letter notified appellant of an administrative hearing to be held on the order to show cause. The hearing was held on January 27, 2006 before a hearing officer. On March 3, 2006, Appellee signed a final order adopting the hearing officer's report and recommendation dated February 21, 2006, and ordered that appellant's 2005 renewal application be denied as untimely and incomplete.
3. Appellant now appeals Appellee's d ecision to this Co urt. She contends that DHSS' conduct violated her state and federal constitutional rights and deprived her of procedural due process. Additionally, she argues that DHSS abused its discretion. She contends that documents which she wished to have considered were treated with indifference and not given due consideration. The appellant also contends that the hearing officer improperly denied her continuance request during the administrative hearing.
4. Ordinarily, the scope of review for an appeal of an administrative agency decision is limited to examining the record for errors of law and determining whether substantial evidence is present on the record to support the agency's findings of fact and conclusions of law. However, there is a relevant statutory standard of review articulated in 16 Del. C. § 4735(d), which reads as follows:
Histed v. E.I. DuPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
Any party in interest aggrieved by a decision of the Secretary to deny, suspend, revoke or refuse to renew registration . . . may appeal such decision to Superior Court. Such appeal shall be on the record and the only question before said Court shall be whether the Secretary abused the Secretary's discretion.
"A discretionary ruling by . . . [an] administrative body on a motion for a continuance will not be set aside unless that decision is unreasonable or capricious."
Orona v. Little Sisters of the Poor, 2002 Del. Super. LEXIS 538, at *10.
5. Nurse practitioners with a controlled substances registration through ONDD may prescribe narcotic drugs if in compliance with statutory and regulatory provisions, including the "collaboration with a licensed physician . . . to cooperate, coordinate, and consult with each other as appropriate pursuant to a collaborative agreement." Rules and regulations promulgated by the Board of Nursing define collaborative agreement as "a written document that outlines the process for consultation and referral between an [APN] and a duly licensed Delaware physician." A controlled substances registration must be renewed biennially (every two years) upon application to ONDD. Any changes to the applicant's personal data or collaborator must be reported to ONDD in writing within ten (10) days.
24 Del. C. § 1902(b)(1); see also Del. Bd. of Nursing Reg. §§ 8.6.2.14, 8.11.3.
Del. Bd. of Nursing Reg. § 8.14.1.2.
24 Del. C. § 1918(a); see also Del. Bd. of Nursing Reg. §§ 8.6.2.14, 8.11.3.
6. Appellant's last valid collaborative agreement was with Dr. Margot Waitz in 2003. Dr. Waitz terminated said agreement in a letter dated January 22, 2004, and appellant failed to notify ONDD that her collaborative agreement with Dr. Waitz had been terminated. In October 2004, DHSS notified appellant that she should surrender her controlled substance registration certificates because she no longer had a valid collaborative agreement. Appellant refused.
7. Appellant's 2005 biennial registration/renewal application was due on June 30, 2005; however, it was not received until July 5, 2005. The application was returned to appellant as incomplete because it lacked a collaborating physician's signature. In August 2005, appellant submitted another registration renewal application. The word "attached" was written in the signature line for the collaborating physician. A document entitled "Advanced Practice Collaborative Agreement" was attached to the application with the signature of Dr. David Cloney and the initials "DK." This second application was returned as incomplete for lack of a collaborative physician's signature in the designated portion of the application (Section D). Subsequent investigation by DHSS revealed that neither Dr. Cloney nor Dr. Delbert Kwan intended to serve as appellant's collaborator.
Dr. Kwan wrote appellant on October 21, 2005 stating that he has never had a collaborative agreement with her. Similarly, in a letter dated November 7, 2005, Dr. Cloney informed appellant that "It was not [his] intention that the statement [he] signed in June 2005 be considered in any way a `collaborative agreement.' . . . I want to be certain it is understood that I have not now nor have I ever had any collaborative agreement with you."
8. Thomas May, an employee of DHSS, informed appellant of the incompleteness of her controlled substances application in a letter dated August 10, 2005. He informed appellant that her registration expired and she no longer had prescriptive authority.
9. Appellant sent Appellee a letter dated October 18, 2005 requesting a hearing to contest the proposed denial of her registration renewal application.
10. In the rule to show cause order, which was issued December 16, 2005, appellant was informed that ONDD proposed to deny her registration renewal on the following grounds: (1) the application was not timely submitted and her registration lapsed; and (2) the application did not contain the signature of a collaborator in Section D as required. Appellant was informed of her rights, including the right to present her case or be represented by counsel and the right to present evidence. The letter specifically stated: "The hearing officer must reach [her] decision in this matter based upon the evidence re ceived at the hearing . No evidence other than that [which] is presented at the hearing will be considered in rendering the decision."
11. The hearing officer concluded that appellant did not have a valid controlled substance registration after October 2004. The hearing officer further concluded that even if there were some question or uncertainty concerning the status of her registration after October 2004, she clearly had no registration after its June 30, 2005 expiration date. The hearing officer further reasoned that the July 2005 and August 2005 submissions by appellant should be regarded as new applications rather than renewals of registration which would trigger the procedural safeguards of 16 Del. C. § 4735(a). Nevertheless, ONDD did follow the § 4735(a) hearing process. On the record of this case, the appellant's contention that her procedural due process rights were violated is unpersuasive and is rejected.
12. Appellant alleges that she possessed a letter and signed application from collaborator Dr. Cloney that was ignored by the hearing officer. In reviewing the hearing officer's report and recommendation, there is no mention of said documents. Appellant was advised in both the November 2, 2005 letter and December 16, 2005 letter from DHSS that she was entitled to present evidence. The latter letter specifically advised appellant that only evidence received at the hearing would be considered. Despite appellant's contention, there is no evidence in the record that appellant introduced either the letter or signed application into evidence as an exhibit. This Court finds that it was not an abuse of discretion for the Secretary to fail to consider documents not in evidence. If appellant does in fact possess a valid collaborative agreement, future applications for prescriptive authority will be accepted if in compliance with the requirements and restrictions set forth in Appellee's order.
13. Appellant argues that the hearing officer's denial of her continuance request was improper. Approximately four-and-one-half hours into the hearing, and after appellant completed her case-in-chief, appellant requested a continuance. Appellant offered multiple reasons for her request, including "to go and get some money and get an attorney," illness, and the fact that the subject matter of the hearing "was about her license not unsigned renewal application." The hearing officer stated that she did not feel comfortable granting appellant's continuance because appellant continued to prescribe narcotic drugs even after she was told that she did not have a current registration and may continue to do so if the hearing is continued. Appellant was advised in two letters dated November 2, 2005 and December 16, 2005 of her right to appear with counsel at the hearing. Appellant had almost three months to obtain counsel. Instead, she chose to appear on her own behalf. Under these circumstances the hearing officer's decision not to grant a continuance was not an abuse of discretion.
14. Accordingly, for the reasons stated above, the order of Appellee is affirmed .
IT IS SO ORDERED.