Opinion
No. 2381 C.D. 2008.
Submitted: June 11, 2009.
Filed: July 24, 2009.
BEFORE: SIMPSON, Judge; LEAVITT, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
In this appeal, Dawn M. Lenhardt, L.P.N. (Licensee) petitions for review of an order of the State Board of Nursing (Board) revoking her practical nursing license. Licensee committed theft by taking $125 from an elderly patient's wallet; she was sentenced to placement in the Accelerated Rehabilitative Disposition (ARD) program, which she successfully completed. The Board determined Licensee's misconduct violated three provisions of Section 16(a) of the Practical Nurse Law (Act). Licensee contends the Board erred in relying on an expunged offense to discipline her. In addition, Licensee claims the Board violated her constitutional rights and abused its discretion by revoking her license where the hearing examiner recommended a six-month suspension with two years of probation. Upon review, we affirm.
Act of March 2, 1956, P.L. (1955) 1211, as amended, 63 P.S. § 666(a).
I. Background
Licensee obtained her license to practice practical nursing in 1997. In December 2004, Licensee worked two days a week as a private duty nurse at the residence of G. H. (Patient), a 75-year-old man who needed around the clock care. Licensee committed theft by taking $125 from Patient's wallet. Ultimately, Licensee was charged with theft by unlawful taking or disposition, a violation of 18 Pa. C.S. § 3921(a), and receiving stolen property, a violation of 18 Pa. C.S. § 3925(a). In June 2005, the Luzerne County Common Pleas Court sentenced Licensee to placement in ARD for 24 months, restitution, court costs, and 25 hours of civic duties.
In May 2006, the Bureau of Professional and Occupational Affairs (Bureau) filed a notice of disciplinary action against Licensee and an order to show cause why the Board should not suspend, revoke or otherwise restrict her license based on her misconduct. The Bureau brought the three-count disciplinary action under Section 16 of the Act, 63 P.S. § 666 (relating to grounds for refusal, suspension or revocation of license). Section 16 relevantly provides:
(a) The board may refuse, suspend or revoke any license in any case where the board shall find, that the licensee
. . . .
(3) Has willfully or repeatedly violated any of the provisions of this act or of the regulations of the board; []
The Board alleged Licensee violated 49 Pa. Code § 21.148(b)(4), which provides: "a licensed practical nurse may not . . . [m]isappropriate equipment, materials, property, drugs or money from an employer or patient."
(4) Has committed fraud or deceit in the practice of practical nursing or in securing his or her admission to such practice or to practical nursing school;
. . . .
(8) Has been guilty of unprofessional conduct or such conduct as to require a suspension or revocation in the public interest. . . .
63 P.S. §§ 666(a)(3), (4) and (8) (footnote added).
Licensee filed an answer and new matter. She admitted being charged with theft by unlawful taking and receiving stolen property. Licensee further admitted placement in ARD for 24 months. In her new matter, Licensee averred that over the nine years she worked as a licensed nurse she cared for hundreds of patients without incident. She claims the incident at issue was the first and only time she took money from a patient.
In December 2006, the Board held a formal administrative hearing. The Bureau submitted its order to show cause and Licensee's answer thereto, and then rested. The Bureau's order to show cause attached the police complaint, affidavit of probable cause and information as exhibits. Licensee did not object to their admission into the record.
Licensee testified in her defense. She admitted taking the money from Patient's wallet. She needed the money to pay her electric bill before the electric company turned off her power. As she left Patient's house, a police officer arrested Licensee and seized the $125. As part of her probation, Licensee made restitution in the amount of $600, including other money allegedly taken over several weeks. Closing arguments followed.
In July 2007, the Board's hearing examiner issued a proposed adjudication and order finding Licensee subject to disciplinary action for the three violations charged. He recommended a six-month suspension, followed by two years of probation and other conditions. The proposed order notified the parties they had 30 days from the mailing date of the proposed order to file exceptions in the form of a brief on exceptions. Neither party filed exceptions.
In August 2007, the Board filed a notice of intent to review the record, including the proposed sanctions, regardless of whether any party filed exceptions. The Board's notice indicated that under the Act and pertinent regulations the Board may substitute its own findings or impose a greater or lesser sanction.
The parties do not dispute that in April 2008 Licensee successfully completed ARD and that her criminal record was expunged.
In November 2008, the Board issued a memorandum and final order adopting the hearing examiner's proposed adjudication and substituting a new sanction. The Board revoked Licensee's license. In so doing, the Board reasoned:
[Licensee] contends that she was desperate to provide for her family, and did take the money from her patient in order to pay her electric bill. The Board finds that [Licensee] did violate the sacred trust that patients place in their caregivers, and that violation is exacerbated by the fact [Licensee's] actions constitute elder abuse. The Board determined that [Licensee] took advantage of her elderly patient for her own financial gain. Under professional licensing statutes such as the [Act], the Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. [Barran v. State Bd. of Med., 670 A.2d 765 (Pa.Cmwlth. 1996)]. The Board concurs with the hearing examiner that [Licensee's] conduct was willful and did breach the fundamental element of trust, which in turn taints the nursing profession. The Board further concurs that [Licensee's] conduct is deserving of a substantial sanction to protect the public health and safety.
Board's Mem. Final Order, 11/18/08, at 1-2. Licensee appeals.
Our review of a licensing board decision is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations.Barran v. State Bd. of Med., 670 A.2d 765 (Pa.Cmwlth. 1996). As a reviewing court, we may not reweigh the evidence presented or judge the credibility of the witnesses. Id.
II. Discussion
Licensee raises two issues. She asserts the Board erred in relying on her expunged offense as the basis for its disciplinary action. Additionally, Licensee asserts the Board erred in substituting its order permanently revoking her practical nursing license rather than adopting the hearing examiner's recommendation to suspend her license for six months, followed by probation for two years. Licensee urges the Board's order is inconsistent with other sanctions it imposed in similar cases.
A. Expunged Record
Citing the Criminal History Record Information Act, 18 Pa. C.S. §§ 9101-83, Licensee first contends the Board erred in relying on an expunged offense as the basis for its disciplinary action. Licensee's criminal record was expunged in April 2008. Licensee thus asserts the Board's November 2008 order violated 18 Pa. C.S. § 9124 (relating to use of records by licensing agencies), which provides in part:
( b) Prohibited use of information. — The following information shall not be used in consideration of an application for a license, certificate, registration or permit:
(1) Records of arrest if there is no conviction of a crime based on the arrest.
(2) Convictions which have been annulled or expunged.
Licensee argues the Board's revocation order is based on the hearing examiner's August 2007 findings and conclusions, which cited Licensee's criminal record. Thus Licensee asserts the Board violated 18 Pa. C.S. § 9124(b) and her right to be free from the difficulties and hardships of a criminal record. See Commonwealth v. Butler, 672 A.2d 806 (Pa.Super. 1996) (arrest record can be harmful to an individual's reputation and opportunities for advancement in life).
The Board counters Licensee waived this argument by failing to raise it either in her answer to the order to show cause or at any time before the Board's final order. Pa. R.A.P. 1551(a). In addition, Licensee did not file a brief on exceptions challenging the hearing examiner's proposed adjudication. Issues not raised in exceptions to the Board's proposed adjudication are considered waived. 1 Pa. Code § 35.213; Mostatab v. State Bd. of Dentistry, 881 A.2d 1271 (Pa.Cmwlth. 2005). See also Kindle v. State Bd. of Nursing Exam'rs, 512 Pa. 44, 515 A.2d 1342 (1986) (defense of laches must be raised at administrative level or it is waived).
Alternatively, the Board contends it did not rely on Licensee's expunged criminal record in determining the appropriate sanction to levy against her. Rather, the Board found Licensee committed fraud or deceit in the practice of nursing, engaged in unprofessional conduct and willfully violated a Board regulation. While on duty, Licensee committed theft by taking $125 from an elderly patient's wallet. In short, the Board did not charge Licensee with violating the Act due to her criminal conviction. The charges were based on Licensee's misconduct on the date in question.
In addition, Licensee did not dispute the fact of her conviction or object to this information being submitted into the record at the formal hearing. See Hr'g Tr. at 6. Moreover, because Licensee's criminal record was not expunged at the time of the hearing, it could be considered by the Board. Horvat v. Dep't of State Prof'l Occupational Affairs; 563 A.2d 1308 (Pa.Cmwlth. 1989). Karageorge v. State Dental Council Examining Bd., 458 A.2d 299 (Pa.Cmwlth. 1983).
The Board asserts Karageorge is controlling here. In Karageorge, a licensed dentist pled nolo contendre to four felony counts of selling or dispensing controlled substances without a prescription. Thereafter, the State Dental Council and Examining Board sought to revoke the dentist's license. At the board hearing, the dentist did not object to the admission of his criminal records into evidence. Also, at the time of the hearing, the dentist's criminal records were not yet expunged. This Court rejected the dentist's arguments that his nolo contendre plea to drug offenses did not constitute substantial evidence of immorality because his criminal record was expunged.
We agree with the Board on the merits of this issue; therefore, we need not fully discuss whether the issue was waived. Licensee did not object to the admission of her criminal record into evidence. Also, at the time of the hearing, her criminal record was not expunged. Thus, the Board could consider it as evidence of the specific violations alleged in the disciplinary action: misappropriation of money from a patient; fraud or deceit in the practice of practical nursing; and unprofessional conduct. Horvat; Karageorge.
Also, the Board did not violate 18 Pa. C.S. § 9124(b)(2), which prohibits the use of expunged or annulled convictions "in consideration of an application for a license, certificate, registration or permit." The Board did not consider Licensee's now expunged conviction in the context of an application for a license. Rather, it properly considered documents from Licensee's criminal proceeding as evidence of her recent fraud, deceit and unprofessional conduct in practicing nursing. Horvat;Karageorge. The Board need not wait to see if Licensee successfully completed her ARD to determine whether her continued practice constitutes a danger to the public, and especially, elderly patients. Id.
B. Revocation
Licensee contends the Board abused its discretion and violated her constitutional rights by not adopting the hearing examiner's recommendation for a six-month suspension followed by two years' probation. Rather, the Board substituted its own sanction. Licensee asserts the revocation order is unduly harsh and inconsistent with the Board's previous decisions in similar cases.
In support, Licensee cites the following cases: Stephens v. Pa. State Board of Nursing, 657 A.2d 71 (Pa.Cmwlth. 1995) (practical nurse received a formal reprimand and $1,000 fine for permitting, in her presence, a nurse's aide under her supervision to on one occasion ingest part of a controlled drug intended for a patient and on another occasion abuse an elderly patient for approximately ten minutes before stopping him);Conlon v. State Board of Nurse Examiners, 449 A.2d 108 (Pa.Cmwlth. 1982) (registered nurse received a one-year suspension for misappropriating several vials of Demerol for her personal use and substituting water in the vials); and Tighe v. State Board of Nurse Examiners, 397 A.2d 1261 (Pa.Cmwlth. 1979) (nurse received one year suspension for tampering with tubexes of Demerol by removing the drug and substituting a saline solution).
Licensee also cites a memorandum opinion of this Court in an unrelated case affirming a Board order suspending a practical nurse for one year after she pled guilty to 23 counts of theft by unlawful taking; 23 counts of receiving stolen property (Vicodin pills intended for patients)). Pursuant to Section 414 of this Court's Internal Operating Procedures, our unreported opinions shall not be cited in any of our opinions, or in any brief or argument addressed to us, unless relevant under the doctrine of law of the case, res judicata or collateral estoppel. 210 Pa. Code § 67.55. See also Shenandoah Mobile Co. v. Dauphin County Bd. of Assessment Appeals, 869 A.2d 562 (Pa.Cmwlth. 2005) (this Court may strike a party's references to an unpublished opinion). None of the exceptions in Section 414 apply here. Therefore, we shall not cite the memorandum opinion.
Here, Licensee maintains, she took $125 from Patient's wallet, under unusual circumstances, with the intent to return it. Licensee, a single mother of two children at the time, underwent a medical procedure and was not working; she needed the money to pay her electric bill. Because of this single incident, the Board revoked her license. Licensee asserts this sanction is blatantly inconsistent with the Board's orders inStephens; Conlon; and Tighe. Licensee maintains this type of inconsistency constitutes an abuse of the Board's discretion and a violation of her right to equal protection under the Fourteenth Amendment.
The Board counters that absent bad faith, fraud, capricious action or a flagrant abuse of discretion, a reviewing court may not inquire into the wisdom of an administrative agency's discretionary action or into the details or manner of executing that action. Slawek v. State Bd. of Med. Educ. Licensure, 526 Pa. 316, 586 A.2d 362 (1991). InSlawek, the Commonwealth Court reversed a three-month suspension of a physician's license. The Court determined that although a licensing board did not abuse its discretion by suspending the physician's license based on his failure to maintain malpractice insurance, the revocation was unduly harsh under the facts of the case. In reinstating the revocation, the Supreme Court held that absent capricious action or a flagrant abuse of discretion, a reviewing court may not substitute its judgment of what is reasonable for that of the agency whose decision is being reviewed.
The Board also maintains it has the authority to regulate and license health professionals to protect the public. Barran. Further, the Board is entitled to disagree with the hearing examiner's proposed order and to impose its own sanction. Telang v. Bureau of Prof'l Occupational Affairs, 561 Pa. 535, 751 A.2d 1147 (2000) (medical board possesses full and final authority to determine what sanction, including revocation, to impose).
Finally, the Board maintains the sanctions it imposes depend on the facts of each individual case. Vogelman v. State Bd. of Funeral Dirs., 550 A.2d 1367 (Pa.Cmwlth. 1988). As such, the Board is not bound by decisions in prior cases. Id. Therefore, prior decisions dealing with misconduct of a different nature or license revocations under different statutes are irrelevant. Id.
Here, the Board states it agreed with its hearing examiner that Licensee's conduct breached a fundamental element of nursing, which is trust, and thus tainted the individual and the profession in the patient community. However, the Board found Licensee's misconduct also constitutes elder abuse, which exacerbates the gravity of the offense. What is more, Licensee's conduct demonstrated a severe lack of character. As a result, the Board maintains it did not abuse its discretion in revoking Licensee's license.
On review, we recognize the Board imposed a much harsher penalty than the one proposed by the hearing examiner. However, the Board is not bound by the hearing examiner's recommendation. Telang. Here, Licensee admitted taking money from an elderly patient who needed around the clock care. Although she testified she took only $125, which was seized, she was ordered to pay back an additional $600. Hr'g Tr. at 19.
According to the arresting officer's affidavit of probable cause, on December 14, 2004, Patient's daughter contacted police after noticing that large amounts of money were taken from her father's wallet and suspected the visiting nurses. See Board's Order to Show Cause, Ex. 1. Since Thanksgiving, over $600 was taken. Id. The police then marked the bills in Patient's wallet. Id. As Licensee left Patient's house on the morning of December 16, 2004, the arresting officer seized $125 in marked bills in Licensee's possession. Id.
Licensee testified she did not take the other $600. Hr'g Tr. at 19. Nevertheless, she repaid the extra $600 because her attorney told her to do so and did not tell her she could appeal that. Id. at 19-21. Accepting Licensee's testimony as truthful, she did not know there was $600 previously taken from Patient's wallet. Rather, she just happened to take the $125 that particular day out of desperation to pay her electric bill.
Our review of the record indicates there is substantial evidence supporting the Board's revocation decision. The Board found that Licensee's actions were willful and violated the sacred trust that patients place in their caregivers. The Board also determined Licensee's conduct constituted elder abuse and tainted the nursing profession as a whole. Although the Board imposed a severe penalty, we cannot conclude it acted capriciously or in bad faith, or flagrantly abused its discretion. The Board is responsible for ensuring the competency and fitness of its licensed professionals. Barran. It is also responsible for protecting the public health and safety. Section 16(a) of the Act authorizes the Board to revoke a practical nursing license if the licensee willfully violates Board regulations, commits fraud or deceit in the practice of nursing, or is guilty of such unprofessional conduct as to require revocation. 63 P.S. § 666(a). Here, the Board found Licensee engaged in such misconduct. For these reasons, we discern no error or abuse of discretion in the Board's revocation order. Slawek; Barran.
Licensee's equal protection argument also fails. First, other than asserting the Board violated the Fourteenth Amendment by imposing lesser penalties in other decisions involving different licensees, Licensee did not develop a cognizable equal protection argument. Licensee does not assert disparate treatment based on any arbitrary or improper classification. See Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986) (lack of equal protection is found in the actual existence of invidious discrimination, not in the mere possibility there may be similar cases where someone will be treated more leniently based upon prosecutorial or agency discretion). Here, Section 16(a) of the Act authorizes the Board to "refuse, suspend or revoke any license in any case where the [B]oard shall find, that the licensee [is guilty of conduct listed in Section 16(a)]." 62 P.S. § 666(a) (emphasis added).
In addition, Licensee did not cite any cases where the Board imposed a harsher penalty on a nurse who committed theft by taking money from an elderly patient. The sanctions the Board imposes depend on the facts of each individual case. Vogelman. Prior cases dealing with misconduct of a different nature are irrelevant. Id.
We note that any person whose license is revoked may apply for reinstatement after a five-year minimum period. Section 17.2 of the Act, added by the Act of December 20, 1985, P.L. 423, 63 P.S. § 667.2.
Accordingly, we affirm.
ORDER
AND NOW, this 24th day of July, 2009, the order of the Bureau of Professional and Occupational Affairs, State Board of Nursing, is AFFIRMED.