Opinion
DOCKET NO. A-3342-10T4
06-18-2012
IN THE MATTER OF THE LICENSE OF JEANETTE MARASCO, L.P.N., LICENSE #26NP05476000, TO PRACTICE NURSING IN THE STATE OF NEW JERSEY.
Matthew S. Connor argued the cause for appellant Jeanette Marasco (Carosella & Associates P.C., attorneys; Mr. Connor, on the briefs). Susan Carboni, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Nursing (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carboni, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Carchman.
On appeal from the New Jersey State Board of Nursing, Division of Consumer Affairs, Department of Law & Public Safety.
Matthew S. Connor argued the cause for appellant Jeanette Marasco (Carosella & Associates P.C., attorneys; Mr. Connor, on the briefs).
Susan Carboni, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Nursing (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carboni, on the brief). PER CURIAM
Jeanette Marasco appeals from a January 24, 2011 final agency decision of the State Board of Nursing (Nursing Board) in which the Nursing Board imposed a public reprimand. The disciplinary action was based upon findings that appellant violated a prior Nursing Board order, and engaged in professional misconduct by physically abusing a patient at Ancora Psychiatric Hospital (Ancora), and by misrepresenting her conduct during the incident in question. We reject appellant's contention that the Nursing Board acted in an arbitrary and capricious manner by imposing the reprimand without affording her a testimonial hearing, by improperly considering hearsay testimony adduced at the Ancora hearing, and by making factual findings that are unsupported by the record. We affirm.
I.
On July 23, 2007, at the request of the Department of Personnel, a hearing officer conducted a disciplinary hearing at Ancora to determine whether Marasco, a licensed practical nurse, had physically assaulted a patient at the hospital on May 3, 2007, and then falsified documents pertaining to the incident. Ancora officials alleged that the incident in question began when a psychiatric patient, L.M., punched appellant, knocked her to the ground and kicked her. At the hearing, Ancora management submitted a statement provided by nurse Josephine Roy indicating that when appellant and L.M. were separated, appellant kicked the patient. Roy's accusation was echoed by Faatima Zachary, also a nurse. Additional statements were submitted by nurses who were on duty at the same time, but they could not determine whether appellant had kicked L.M.
In her written decision, the hearing officer found that the statements provided by both Roy and Zachary established that "after being separated from [p]atient L.M., [appellant] continued to kick the patient in the back."
The hearing officer also found that the statements submitted by Roy and Zachary "clearly . . . contradict[ed]" the account of the incident provided by appellant on the day in question, which "would imply" that appellant committed an "intentional misstatement of material fact" when she filed the official report demanded by her supervisor. The hearing officer deemed the charges of physical abuse and intentional misstatement of material fact to be substantiated, and ordered that appellant be terminated from her position as a nurse at Ancora.
On August 31, 2007, in keeping with the hearing officer's report and findings, the Department of Personnel issued appellant a final notice of disciplinary action (FNDA), removing appellant from her position at Ancora, retroactive to May 8, 2007. When appellant appealed the FNDA, the matter was transferred on November 1, 2007 to the Office of Administrative Law (OAL), for determination as a contested case pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. However, on March 31, 2008, before the OAL hearing began, the parties reached a settlement that was ultimately approved by the Merit System Board. In return for appellant's agreement to never seek or accept employment from the Department of Health and Human Services in the future, Ancora agreed to "amend" appellant's personnel record "to reflect a resignation in good standing in settlement of the alleged charges." The settlement agreement also specified that appellant would receive no back pay, and that neither side was admitting any liability. However, all internal records of the Department of Human Services were to remain intact, and could be released to any prospective employer "consistent with the law."
The Nursing Board subsequently initiated disciplinary proceedings against Marasco based upon the May 3, 2007 incident and the hearing officer's report. No testimonial hearing was conducted by the Nursing Board. Rather, the Nursing Board conducted an investigative inquiry on October 17, 2008, which was transcribed. Appellant appeared and stated she would proceed without the assistance of an attorney. When asked her current place of employment, appellant initially responded that such material was irrelevant to the matter at hand, and later provided an answer "under duress." She described the May 3, 2007 incident at Ancora, and denied kicking L.M. Instead, she asserted that she had only "put [her] foot out to block" the patient, who was "on the ground, flailing and kicking."
The record does not specify how the Nursing Board became aware of the disciplinary proceedings or the settlement.
Appellant also asserted that Roy and Zachary had admitted that "the only reason why they wrote the statements [against appellant] is because they didn't like [her]." The investigator pressed appellant, asking her to prove her assertion that Roy and Zachary made false statements because they did not like her. Appellant responded that a nurse "she used to work with" told her. She refused to name the informant.
The Nursing Board asked appellant if she would submit to a psychological evaluation to determine whether she had anger management problems. Appellant responded that she did not have difficulty controlling her anger, but would consider allowing her psychiatrist to submit an evaluation to the Nursing Board. Although the Nursing Board asked her on October 17, 2008 to provide a report from her psychiatrist, and followed up with a written request on December 16, 2008, appellant never responded. As a result, on April 3, 2009, the Nursing Board issued a provisional order of discipline, in which the Nursing Board found that the incident at Ancora constituted professional misconduct within the meaning of N.J.S.A. 45:1-21(e), and that appellant's failure to respond to the December 16, 2008 letter requesting information, constituted a failure to cooperate with the Nursing Board investigation. See N.J.A.C. 13:45C-1.2, 1.3 and N.J.S.A. 45:1-21(e). The April 3, 2009 order stated that a provisional public reprimand would be issued against appellant in thirty business days.
Before the deadline was reached, appellant responded to the provisional order with a letter, which included a copy of a performance review from her current employer, and she also provided the name and address of her psychiatrist. Pursuant to a recommendation by the Deputy Attorney General, appellant enrolled in anger management classes.
On September 11, 2009, an interim consent order, signed by appellant, reiterated the previous finding of professional misconduct and required appellant to undergo a comprehensive mental health evaluation within thirty days. The consent order further stated that after completion of the evaluation, the Nursing Board would reevaluate its decision to issue a public reprimand. The Nursing Board referred appellant to the Recovery and Monitoring Program (RAMP), a program administered by the Institute for Nursing, for completion of the mental health evaluation. On November 5, 2009, RAMP notified the Nursing Board that appellant refused to undergo the mental health evaluation and was "angry and difficult" during the peer group meeting she attended. Two months later, the Director of RAMP notified the Nursing Board that in the two months that had elapsed since RAMP's November 5, 2009 letter, appellant had not changed her position, and was continuing to refuse to undergo a psychiatric examination.
After receiving the second report from RAMP on January 5, 2010, the Nursing Board issued an amended provisional order of discipline on January 8, 2010, which included the finding that appellant's failure to undergo her ordered mental health evaluation constituted professional misconduct within the meaning of N.J.A.C. 13:45C-1.4. The order stated that continued failure to cooperate would result in suspension of appellant's license until she complied. The amended order also reiterated the provisional public reprimand.
When appellant was notified of the Nursing Board's January 8, 2010 order, she scheduled a mental health evaluation with Phyllis Prekopa, M.S., an addiction specialist. As a result, the Nursing Board delayed the issuance of its provisional order pending receipt of Prekopa's report. Appellant also began attending anger management sessions at Serenity Counseling, L.L.C. (Serenity). The therapist at Serenity reported to the Nursing Board that appellant harbored considerable animosity toward the Nursing Board, accusing its members of treating her "disrespectfully" and "railroad[ing]" her. The therapist opined that appellant "would benefit from anger management therapy" to learn to manage her anger more appropriately; and reported that appellant agreed to attend eight to ten such sessions.
For her part, Prekopa reported substantial "concern[] about [appellant's] decision-making ability when dealing with patients," and she observed that appellant "exhibits a great deal of anger and a level of irritability when confronted with questions that make her uncomfortable." Prekopa recommended that appellant "not be permitted to return to nursing until she has completed at least ten sessions of anger management therapy and [has] continue[d] her weekly peer group meetings." Finally, Prekopa recommended that when appellant ultimately returned to a nursing position, she should be required to work in a facility where other nurses would be in a position to continually monitor her performance.
On January 24, 2011, the Nursing Board filed a final order of discipline that recognized appellant's ultimate compliance with the terms of the interim consent order but also recognized that appellant's initial refusal to comply with the terms of the consent order constituted a failure to comply with a Board order, in violation of N.J.A.C. 13:45C-1.4. For those reasons, the Nursing Board imposed a public reprimand based on the findings of patient abuse and misstating material information, as substantiated in the Ancora hearing officer's report.
On appeal, appellant maintains that the Nursing Board acted in an arbitrary and capricious manner by imposing the reprimand without affording her a testimonial hearing, by improperly considering hearsay testimony adduced at the Ancora hearing, and by making factual findings that lack support in the record.
II.
We start by acknowledging the longstanding and well-accepted principles of judicial review of administrative agency actions. "The scope of that review is limited." In re Herrmann, 192 N.J. 19, 27 (2007). As the Court observed in Herrmann, "[a]n administrative agency's final quasi-judicial decision will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Id. at 27-28. On appeal, our role is limited to the evaluation of three factors:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.When the agency's decision satisfies those criteria, we are obliged to afford substantial deference to the agency's expertise and superior knowledge of a particular field. Ibid. We are obliged to afford such deference even if we would have reached a different result from that reached by the agency. In re Taylor, 158 N.J. 644, 657 (1999).
[Id. at 28 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
The same deferential standard applies to our review of the particular disciplinary sanction the agency chose to impose. In re Stallworth, 208 N.J. 182, 195 (2011). This is particularly true in light of the agency's "special 'expertise and superior knowledge of a particular field.'" Ibid. (quoting Herrmann, supra, 192 N.J. at 28). Our scope of review of administrative sanctions is to determine only whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)).
Appellant argues that because this was a contested case, as defined by the APA, and because the enabling legislation of the Nursing Board requires a hearing before disciplinary action may be imposed, the Nursing Board committed reversible error when it denied her an evidentiary hearing. The Nursing Board responds that this was not an instance in which appellant's license was subject to revocation or suspension; therefore, pursuant to the APA, there was no requirement that she be afforded an evidentiary hearing.
When assessing the procedural adequacy of an administrative hearing, we recognize that administrative agencies are afforded significant "flexibility in selecting the proceedings most suitable to achieving their regulatory aims." In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, 330 N.J. Super. 65, 106 (App. Div. 2000) (internal quotation marks and citation omitted), aff'd, 167 N.J. 377, cert. denied sub nom. Co-Steel Raritan v. N.J. Bd. of Pub. Utils., 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001). In most cases, the APA does not create a substantive right to a hearing. In re Fanelli, 174 N.J. 165, 172 (2002). The right to a hearing must usually be grounded in another statute or based on constitutional requirements. Christ Hosp. v. Dep't of Health & Senior Servs., 330 N.J. Super. 55, 61 (App. Div. 2000).
The APA does specifically provide, however, that an agency shall not revoke a license or refuse to renew a license without first affording the licensee a hearing in conformity with the procedures dictated in the APA. N.J.S.A. 52:14B-11; Fanelli, supra, 174 N.J. at 172. Because N.J.S.A. 52:14B-11 does not require a hearing except in instances where the agency seeks to revoke a license, or refuses to renew one, we reject appellant's contention that she was entitled to an evidentiary hearing here, where the only penalty imposed was a public reprimand.
We recognize that portions of the APA provide that in a contested case, all parties are entitled to a hearing after reasonable notice. A contested case is "a proceeding, including any licensing proceeding, in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decision[,]" N.J.S.A. 52:14B-2(b), "[after] an opportunity for [an agency] hearing," N.J.S.A 52:14B-9.
Appellant argues that hers was a contested case because N.J.S.A. 45:1-22 states that as an alternative to revoking a license, a board may, "after affording an opportunity to be heard . . . [i]ssue a letter of . . . reprimand." N.J.S.A. 45:1-22 further provides that "[a] board may, upon a duly verified application of the Attorney General that . . . alleges an act or practice violating any provision of an act or regulation administered by such board, enter a temporary order suspending or limiting any license issued by the board pending [a] plenary hearing."
Appellant's argument is unpersuasive for two reasons. First, the record is devoid of any evidence that appellant ever requested the right to present witnesses at the October 17, 2008 hearing. Second, N.J.S.A. 45:1-22 confers the right "to be heard." The statute does not specify the contours of such hearing. Nothing in the statute demonstrates that the right "to be heard" requires the agency to conduct the hearing in a different fashion than the hearing the Nursing Board conducted on October 17, 2008.
Moreover, the Nursing Board adhered to all of the requirements of administrative due process. Before the investigative inquiry began on October 17, 2008, appellant had notice of the Nursing Board's intention to inquire into the findings of the Ancora hearing officer, and appellant was afforded the opportunity to respond. In fact, when appellant asserted that the nurses who submitted statements against her did so because they did not like her, the Deputy Attorney General asked her to provide the name of any persons who could support such a claim, so that the Nursing Board could make an inquiry, but appellant refused to disclose her source.
Furthermore, appellant was asked by the Nursing Board to submit information from her doctor regarding the steps she was taking to resolve any anger management problems that could impede her ability to be an effective nurse, which indicates that appellant was afforded an opportunity to submit evidence in her defense. Perhaps most important, the record of the proceeding before the Nursing Board on October 17, 2008 reveals that appellant never requested the opportunity to present witness testimony. Under such circumstances, we reject her claim that her right to administrative due process was violated.
Appellant also contends that, at a minimum, she should have been permitted to submit a letter setting forth her position to the Nursing Board. This argument is meritless. The record demonstrates that appellant sent the Deputy Attorney General numerous letters and emails explaining her failure to comply with the Board's consent order. More importantly, appellant did submit a letter to the Nursing Board on January 19, 2010, in which she outlined her position. In addition, the Deputy Attorney General explained at the end of the October 17, 2008 investigative hearing that appellant could submit additional written materials if she wished, but appellant opted to make an oral statement at the time instead.
For all of these reasons, we reject appellant's claim that the October 17, 2008 proceeding suffered from procedural defects that rendered the public reprimand improper.
III.
Next, appellant maintains that the proceedings before the Nursing Board on October 17, 2008 were fatally flawed because the Nursing Board improperly considered hearsay evidence and other inadmissible evidence from the Ancora hearing, thereby basing its public reprimand on incompetent evidence. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comments. First, hearsay is admissible in administrative proceedings. Weston v. State, 60 N.J. 36, 50-51 (1972). Although the factual finding or legal determination of the hearing officer cannot be based solely on hearsay, so long as there is a residuum of legal and competent evidence in the record to support the hearing officer's findings, the use of some hearsay evidence is permissible. Ibid. Here, the hearing officer had the opportunity to hear appellant's own testimony, and rejected it as lacking in credibility. We are satisfied that the hearing officer's findings and report complied with the requirements of Weston.
Secondly, and more important, to the extent appellant argues that the Ancora hearing officer's reliance on Roy's and Zachary's written statements denied appellant the opportunity to cross-examine the witnesses against her, appellant waived that right. At the Ancora hearing, the management representative requested a postponement because his witness was not available due to a previously scheduled vacation. At the insistence of appellant's representative, the hearing went forward. By insisting that the hearing go forward on that date, appellant has waived the right to complain that she was denied the opportunity for cross-examination.
As for appellant's contention that the public reprimand was disproportionate to the offense she committed and was unduly harsh, we disagree. Although appellant ultimately complied with the RAMP recommendations, her obstinate and defiant behavior before the Nursing Board, combined with her physical assault on a psychiatric patient in her care, warranted the imposition of a public reprimand.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION