November 7, 2013
Delaware Board of Nursing,
Date submitted: October 8, 2013.
Karen Decker, Pro Se.
Jennifer L. Singh, Esq. Patricia Davis Oliva, Esq. Deputy Attorneys General Delaware Department of Justice.
Dear Ms. Decker, Ms. Singh, and Ms. Oliva:
Before the Court is the appeal of Karen Decker ("Decker") from a decision of the Delaware Board of Nursing ("Board"). For the reasons that follow, the Court AFFIRMS the Board's decision.
Facts and Procedural Background
Decker held a practical nurse's license from 1982 to 2010, and a registered nurse's license from 2010 to 2013, when her license was suspended. In 2010, she practiced nursing at Beebe Medical Center ("Beebe") in Lewes, Delaware. In May of that year, over the course of three work shifts, Decker did not record sixteen separate drug withdrawals from Beebe's Accudose cabinet onto her patients' charts. During that time, Beebe's electronic recording system for tracking patients' drug intake was not functioning properly, but nothing prevented Decker from recording the drugs on her patients' charts manually, which she did not do. In June 2010, Decker removed a Vicodin pill, but neither distributed it to a patient nor recorded its removal or disposal. Decker placed the pill in her pocket. Decker admitted these incidents, which resulted in her termination from Beebe and issuance of a letter of reprimand from the Board in November 2011.
Decker then practiced nursing at Sussex Correctional Institute ("SCI") in Georgetown, Delaware. In June 2011, the prison pharmacy saw an exponential increase in the ordering of Soma, a muscle relaxant. This increase seemed odd because during that time, only two patients at the facility were prescribed the drug. Eventually, Jill Mosser ("Mosser"), the Health Services Administrator for Correct Care Solutions, SCI's health services provider, began an investigation. SCI kept Soma in a certain drawer. While Decker was on duty, two cards of Soma, each containing sixty pills, disappeared. Therefore, Decker became the prime suspect. Decker subsequently was captured on film opening the drawer and then closing it quickly upon Mosser's entrance, and then again opening the drawer and removing two cards containing Soma and another drug.
In a meeting with Mosser and SCI's Warden, Decker at first denied the theft, but then, according to Mosser, is claimed to have stated "I'm sorry. I took [the pills] for myself, not selling them or giving them to patients. I guess I have a problem and maybe I need to get out of nursing." Mosser offered Decker help with her drug issues, but Decker "stated that she would seek help on her own." Decker was then terminated from SCI. She requested that Mosser not report the incident to the Board, which Mosser did in July 2011. Mosser testified that the day after meeting with SCI's Warden and Decker, Mosser contacted Decker to check on her. Decker told Mosser that she was well, but "did not mention treatment."
Once Mosser reported the incident, David Tetrault ("Tetrault") began an investigation for the Division of Professional Regulation. Tetrault informed the hearing officer that, while questioning Decker in 2012, she at first denied both the Soma theft and having any issues with drugs. She also denied to Tetrault her statement to Mosser admitting her drug problem. Tetrault then stated that Decker eventually admitted to the theft. He also stated that "he ha[d] a 'sense' that . . . Decker [was] aware of her problems with drugs." According to Tetrault, Decker told him that she was not seeking professional drug treatment.
On September 11, 2012, the State filed a complaint against Decker. The State first cited the Board's November 2011 letter of reprimand regarding the May 2010 Acudose incidents and the June 2010 Vicodin incident, claiming that Decker's failure to properly record the medications constituted unprofessional conduct, in violation of 24 Del. C. § 1922(a)(8) and Board Rules 10.4.1,  10.4.2.4,  and 10.4.2.27. Second, the State cited the June 2011 SCI incident, claiming that Decker's diversion of Soma from the prison pharmacy for personal use also constituted unprofessional conduct, in violation of 24 Del. C. § 1922(a)(8) and Board Rules 10.4.1, 10.4.2.14, 10.4.2.15,  and 10.4.2.27. The State further contended that Decker's diversion of drugs for personal use and knowingly practicing nursing with a substance abuse problem constituted a violation of 24 Del. C. § 1922(a)(3) and (4).
On January 24, 2013, the Chief Hearing Officer for the Division of Professional Regulation heard Decker's case. At the hearing, the State's evidence included, along with several documents, the testimony of Mosser, Tetrault, and Decker herself, who offered a letter from Fresenius Medical Care ("Fresenius") confirming Decker's employment, praising Decker's work quality, confirming Decker's admittance of her past problems, and stating that "[f]ew medications" were funneled through the facility. Decker also "admitted she ha[d] a substance abuse problem." She also described her one-year absence from nursing during which she utilized self-help tools, such as books and tapes, and was prescribed medications for her blood pressure by a doctor who was unaware of her drug incidents. Decker reiterated that Fresenius was aware of her past problems. Decker's evidence included the testimony of her former SCI supervisor Barbara Showell ("Showell"), who also sang Decker's praises. Decker stressed her readiness to be agreeable with the Board on anything short of "eliminat[ing] her from nursing." The State cross-examined Showell on issues such as Showell's own disciplinary issues at SCI and how Showell was not asked to renew her nursing duties when the prison's healthcare contract changed. Decker again admitted pilfering Soma pills, "but not the cards, " and admitted her dishonesty when Tetrault questioned her. Showell held firm to her admiration of Decker, but "admitted that effectively dealing with [substance] abuse usually involves more than simply talking with friends."
Factually, the hearing officer concluded that "Decker has admitted on more than one occasion that she has a drug problem. However, there is no evidence in this case that she has sought out professional assistance addressing the problem."Legally, the hearing officer concluded that it was "beyond dispute" that Decker's theft and use of Soma constituted legal and professional misconduct, and that "drug addiction and the practice of nursing in an impaired state" constituted endangering the public. These issues, he noted, were particularly problematic in that Decker continued to practice nursing while making no attempt to seek help. The hearing officer also found that Decker's theft and use equated to failing to protect her patients from substandard nursing practices. Additionally, the hearing officer found Decker's "presumed impairment while practicing" equated to practicing as a nurse while dependent on drugs. He also ruled that Decker violated the rules of her employment because, "[alt]hough not in evidence, " the officer inferred that both SCI and the pris on's healthcare contractor maintained rules prohibiting drug diversion, practicing while impaired, or not seeking drug abuse treatment. Lastly, the officer concluded that, based on the SCI incident alone, Decker's habits made her unfit to be a nurseand that Decker was a drug addict. Thus, the hearing officer recommended that the Board susp end Decker's nursing license for a period of two years, with no subsequent reinstatement until Decker could prove that she had been evaluated by and fully complied with an approved substance abuse entity, all subject to any rehabilitative measures the Board might impose.
Decker excepted from the hearing officer's recommendation by issuing to the Board a letter which she authored, an intake assessment note from Brandywine Counseling & Community Service, Inc. ("Brandywine") regarding a February 13, 2013 substance abuse evaluation performed on Decker, and the results of a random drug test from Brandywine, which came back negative. Decker's letter requested that the Board place her license on probation, rather than suspension, so as to allow her to continue working. It also stated that after the hearing officer made his recommendation, Decker received a drug and alcohol evaluation, and conferred with a counselor who decided that Decker "did not need to be placed in a treatment program, " but felt rather that she was appropriately handling her issues on her own.The letter additionally discussed the hardship that resulted from Decker's termination from Beebe and how she "felt defeated" while working at SCI, which led to her Soma use, and how she utilized self-help during her sabbatical from nursing and "learned to forgive [her]self for the mistakes that [she] ha[d] made and move forward."
The Brandywine note concluded that Decker did not require any further assistance. It also stated that Decker was "seeking treatment as a result of the advice from the Board of nursing." For "substance use" history, the only notation that appeared was "[a]lcohol, has not drank alcohol in over 2 years. Age of first use was 17." For "[a]ttitude toward AOD[, ]" the only notation that appeared was "I don't have any reason to drink." For "previous TX" history, two periods of counseling were recorded, one in 1999 and another in 2000, along with the notation of "[d]ischarged successfully." For "medical issues, " the note reported "high blood pressure, seasonal allergies." The note also reported two prior DUIs. Additionally, it commented on Decker's general status:
At this time [Decker] is not in need of any further services. [Decker] has not drank alcohol for over 2 years and has no desire to do so. [Decker's] strengths are good mom, strong willed and good worker. Her goals are to keep doing things the way she has been. She stated there are no limitations. [Decker] does have a believe (sic) in a Higher Power.
On June 12, 2013, the Board rendered its decision. The Board first rejected two of the hearing officer's conclusions as unsupported by the evidence: that Decker presumptively practiced nursing while impaired on drugs and that Decker violated certain policies her employer presumptively had in place requiring her to seek help for any substance abuse problems and refrain from working while impaired. Next, the Board found that while Decker's work at Fresenius allowed little contact with drugs, Decker's "substance abuse evaluation report only indicate[d that] . . . Decker reported a problem with 'alcohol.'" The Board also found troubling the fact that "this [was] . . . Decker's second time before th[e] Board regarding issues surrounding medication use and/or abuse." Therefore, in order "to properly protect the public, " the Board concluded that it would modify the officer's recommended discipline, imposing a two year suspension of Decker's license, which could be lifted if, at the end of that period, Decker could establish that she received a substance abuse evaluation specifically geared towards "poly-substance abuse, " and followed all counseling advice. If the Board lifted the suspension, Decker then would serve a probationary period of three years, during which she would be prohibited from working around controlled substances. During her probation, Decker also would be required to meet certain obligations such as taking random drug tests, attending classes on proper nursing and substance abuse, and submitting both self-evaluations and evaluations performed by any nursing supervisors.
Decker appealed the Board's decision. She also procured for this Court an additional note from Brandywine dated June 19, 2013, in which a counselor clarified that the February 13, 2013 substance abuse assessment discussed in the Brandywine note which the Board examined in making its decision included an alcohol and drug assessment. The counselor stated that Decker "did not meet [the] criteria for drug or alcohol abuse or dependence. As a result of the findings of the assessment no further services are being recommended."
Standard of Review
When reviewing an administrative agency's decision, this Court reviews questions of law de novo. All other determinations are examined to determine whether they are free from legal error and supported by substantial evidence. In order for evidence to be considered "substantial, " it should be sufficient enough to allow a reasonable person to reach a certain conclusion. The Court does not weigh the evidence, determine questions of credibility, or make its own factual findings.It merely determines if the evidence is legally adequate to support the agency's factual findings.
Despite vigorous briefing, the parties ' contentions can be whittled down to two principal arguments: whether the record supports the Board's conclusion that Decker had an untreated drug problem, and whether the Board abused its discretion choosing a two-year suspension followed by probation as the appropriate sanction for Decker.
In determining whether the Board erred in rendering its decision, the Court examines only the reasons articulated in the Board's decision. Therefore, it is imperative in this case to understand exactly what the Board held. Other than the hearing officer's presumptions that Decker committed misconduct by practicing nursing while impaired and violating certain employment policies, the Board accepted the hearing officer's factual and legal conclusions, all of which seemed to be based on one overarching premise: Decker was an untreated drug addict. Regarding an appropriate sanction, with protection of the public as its only goal, the Board fashioned a particular discipline because it found that Decker's Brandywine note referenced only alcohol, and that this was Decker's second time appearing before the Board for issues surrounding medication use and/or abuse.
The Board's opinion illuminates the issues to be decided by the Court. The first is whether Decker committed conduct in this case warranting sanctioning, as determined by whether the record factually supports with substantial evidence that Decker had an untreated drug problem during the relevant time period. The second is whether the Board abused its discretion in choosing suspension as Decker's sanction based on her substance abuse evaluation and the fact that this was her second time before it regarding medication use and/or abuse. For this issue, the Court must determine whether Decker could have modified the Brandywine note with the counselor's June 19, 2013 note and whether the Board could infer a medication use and/or abuse problem based on Decker's disciplinary record.
The record contains substantial evidence that at the time the hearing officer made his recommendation, Decker had an untreated drug problem. As this Court has stated time and time again, "[i]t is the function of the [Board] to sit as the trier of fact with the authority to weigh the evidence, determine issues of credibility and make its own factual findings and conclusions." If nothing else, the State produced Mosser to the hearing officer, who testified as to Decker's drug problem:
Q. Did [Decker] make any other admissions at [the] time [of the SCI incident]?
A. She said that [the Soma] was not for anyone else or she wasn't giving it to any patient, that she wasn't selling them, that she was indeed taking – took them for herself.
Q. Did . . . Decker ever make any admissions or comments to you about whether or not she had a substance abuse problem?
A. Only at the very end after we talked about, she said that she may have . . .
Q. Page 11 seems to contain the information about your confrontation with Karen about the missing Soma. Is that the case?
A. Yes, she did she sa[id], "I have a problem and maybe I need to get out of nursing."
Q. What was your reaction to [Decker's] admission that she had a problem?
A. I offered a – I suggested that she would attend Narcotics Anonymous meetings, to get signed slips if she would go there. I offered to go with her. I offered to help her get substance abuse treatment if she so desired. And she felt she could do it herself.
Q. Since . . . [Decker] was terminated from her employment in the summer of 2011, have you had contact with her?
A. I contacted her once after the initial confrontation, and she said she was doing fine and that she was getting treatment.
Q. Did she give any specifics about where was getting treatment?
Q. And since June 15th of 2011, have you had any additional contact with . . . Decker?
A. No, I haven't.
Q. Do you know whether or not she has undergone any substance abuse treatment?
A. I do not know.
The Board determines which witnesses it chooses to believe. In this case, the hearing officer, and by reference the Board, believed Mosser, and articulated as such, albeit in a less than precise manner.
The Court finds unavailing Decker's reliance on this Court's decision in Ferguson v. Delaware Board. of Nursing. In particular, the Court rejects Decker's claim that the Board ignored evidence that she did not have a drug problem without providing concomitant specific relevant reasons. In Ferguson, the Court reversed the Board's decision because, inter alia, the Board rejected the nurse's expert witness based on the factual conclusion that the nurse, after yielding a drug test that came back positive for marijuana, did not dispute that she had marijuana in her system. This Court invalidated that factual conclusion as not supported by substantial evidence. Thus, Ferguson stands for the proposition that, when choosing to credit or not credit certain pieces of evidence, a Board does not satisfy its obligation to articulate specific relevant reasons for doing so by ignoring pertinent evidence which counters a false factual conclusion. Ferguson does not assist Decker because in that case, the factual conclusion which the Board reached was indeed false; conversely, the factual conclusion which the Board reached in this case, via the hearing officer's opinion, was true, as explained above. Thus, the Board, by adopting the hearing officer's finding that Decker had an untreated drug problem, did properly articulate specific relevant reasons for disciplining her.
The record contained substantial evidence that Decker had an untreated drug problem. Thus, conduct warranting sanctioning occurred because an established untreated drug problem, coupled with admitted theft of drugs, seems, at the very least, to fit exactly within the definition of "fail[ing] to conform to legal and accepted standards of the nursing profession and . . . thus . . . adversely affect[ing] the health and welfare of the public."
Decker cannot modify the Brandywine note with the June 19, 2013 note. The June 19, 2013 note constitutes additional evidence not before the Board in rendering its decision; as such, the Court cannot consider it in rendering its decision.
The Board permissibly inferred that this was Decker's second time before it regarding medication use and/or abuse. Decker's argument that her first time before the Board involved failure to document drug distributions and that her second time involved drug diversion, neither of which equates to "medication use and/or abuse, " must fail. The facts support the Board's conclusions.
Thus, the Board was left with a substance abuse evaluation that did not discuss drugs,  and a permissible inference that this constituted Decker's second instance of discipline for medication use and/or abuse. From this, the Board chose the sanction of the two year suspension. The Court cannot find that this shocks its sense of fairness.
Decker's attempt to cast her suspension as a punishment rather than as a method to protect the public also holds no merit. The Court finds impermanent removal of a nurse with an untreated drug problem for a period of time, coupled with a chance to re-enter the profession once certain conditions are met, serves the public interest and attempts to forgive and rehabilitate past misdeeds. Based on the foregoing, the Court AFFIRMS the Board's decision.
IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes