Colorado State Bd. of Nursing v. Lang
Decision Date | 18 June 1992 |
Citation | 842 P.2d 1383 |
Docket Number | 91CA0114 |
Parties | COLORADO STATE BOARD OF NURSING, Petitioner-Appellee, v. Fred LANG, Respondent-Appellant. . IV |
Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol.Gen., Kathie A. Clinton, Asst. Atty. Gen., Denver, for petitioner-appellee.
Patricia A. Coan, P.C., Patricia A. Coan, Denver, for respondent-appellant.
Opinion by Judge MARQUEZ.
Respondent, Fred Lang, appeals the order of the Colorado State Board of Nursing(Board) revoking his licenses to practice professional and practical nursing.We affirm in part, reverse in part, and remand for further proceedings.
Respondent's license to practice practical nursing lapsed on July 1, 1978.His license to practice professional nursing was first revoked on November 20, 1981.Respondent was on probation at that time for having taken narcotic drugs from a hospital and administering them to himself.Pursuant to a stipulation, respondent admitted that, during the pendency of that probation and while employed as a professional nurse at a different hospital, he took narcotics belonging to the hospital for his own use and benefit.
On March 26, 1987, respondent's professional nursing license was reinstated.However, respondent later admitted violating the 1981 stipulation by failing to obtain random urine screens and by having his wife monitor his urine samples.In August 1988, respondent entered into another stipulation agreeing to the suspension of his license for at least six months.It contained the following provision:
This Stipulation and Order shall become an Order of the Board when accepted by the Board and signed by an authorized Board member.
Under the signature line for the Board member there appeared the terms "Effective Date:" with blank lines to enter a day and month of 1988.
On August 16, 1988, an assistant attorney general representing the Board wrote a letter to respondent's counsel stating that she had forwarded the stipulation to a board member for signature and "the effective date of the stipulation should be within the next few days."On the same day, the stipulation and order was signed by a member of the Board.It was undisputed that respondent ceased working as a professional nurse on August 20, 1988, and that he did not receive the fully-executed stipulation until August 26, 1988.
The present charges against respondent arose from his care and treatment of three patients on August 17 and 18, 1988.Alleging inconsistencies in charting, including assertions that those patients had not received narcotic analgesics as charted by respondent, the Board brought the following charges against him: (1) practicing as a professional nurse during a period when his license had been suspended, (2) negligently or willfully practicing nursing in a manner which failed to meet generally accepted standards for such nursing practice and falsely or negligently making incorrect entries or failing to make essential entries on patient records, and (3) diverting meperidine (Demerol) to his own possession and being addicted to or dependent on habit-forming drugs or an habitual user of controlled substances.
Pursuant to respondent's motion for summary disposition, the Administrative Law Judge (ALJ) dismissed the first charge against him, ruling that respondent's suspension was not effective until he received notice that the Board had accepted the stipulation and order.
Following hearing conducted pursuant to §§ 12-38-120, C.R.S. (1991 Repl.Vol. 5B) and 24-4-105, C.R.S. (1988 Repl.Vol. 10B), the ALJ found that, as to the second charge, respondent did obtain and record the administration of Demerol to two patients to whom that drug had not been administered.He also found that respondent was not, as of the time of hearing, the time of filing of the notice of charges, or any other time material to the proceeding, addicted to or dependent on Demerol or any other habit-forming drug.The ALJ concluded that, based on the second charge, respondent's license to practice nursing should be permanently revoked.
On review, the Board reversed the ALJ's dismissal of the first charge, adopted his findings of fact and conclusions with regard to the second charge, but set aside the ALJ's conclusion that the respondent was not addicted to or dependent upon Demerol or any other habit-forming drug at the time of hearing.The Board revoked respondent's license to practice professional nursing and license to practice as a practical nurse.
Respondent initially contends that the Board acted arbitrarily and capriciously and exceeded its jurisdiction in finding that he practiced nursing while his license was suspended.Asserting a violation of his rights to due process, respondent argues that, as a matter of law, he was not required to comply with the stipulation and order until he received notice that the Board had accepted and signed it.We conclude that the Board erred in reversing the ALJ's dismissal of this charge.
The Board, noting that the stipulation was effective August 16, 1988, concluded that respondent had violated § 12-38-123(1)(c), C.R.S. (1991 Repl.Vol. 5B) which makes it unlawful for any person to practice as a practical or professional nurse during the period when his license has been suspended or revoked.The Board observed that that section of the statute contains no requirement of notice concerning a stipulation and order for suspension, nor does it require any specific intent to be proved regarding working after a suspension.The Board further concluded that, by practicing as a professional nurse on August 17 and 18, 1988, respondent had demonstrated grounds for discipline under § 12-38-117(1)(e), C.R.S. (1991 Repl.Vol. 5B) by violating a provision of that article and had violated the Board's order of suspension in contravention of § 12-38-117(1)(g), C.R.S. (1991 Repl.Vol. 5B).The latter section provides that the Board has the power to suspend any license on proof that such person has negligently or wilfully violated any order, rule, or regulation of the Board pertaining to nursing practice or license.
Here, respondent submitted an affidavit with his motion for partial summary judgment in which he stated that he signed the stipulation sometime between August 8 and August 11, 1988.
The affidavit also stated that respondent had a conversation with an assistant attorney general for the State Board of Nursing at some time between August 8 and August 20, 1988, and that during that conversation respondent specifically asked the assistant attorney general what the effective date of his license suspension would be and that he"was told that it would be when I receive notice."
Also, an exhibit to the motion for summary judgment was a letter dated August 11, 1988, from respondent's counsel to the attorney general's office forwarding the proposed stipulation.The letter included a statement that: "As soon as I've received notice from you that the suspension is in effect, Mr. Lang will forward his professional nurse license to the Board."Another exhibit, a letter dated August 16, 1988, from the attorney general's office to respondent's counsel indicated that: "The effective date of the stipulation should be within the next few days."Although respondent ceased practicing professional nursing August 20, 1988, he did not receive notice that the stipulation had been signed until August 26, 1988.
The Board's response to the motion for summary judgment included a copy of the fully executed document indicating that it had been signed on August 16, 1988, a copy of the letter dated August 11, 1988, from respondent's counsel to the attorney general's office, a letter indicating dates respondent worked during August 1988, and exhibits pertaining to other issues.However, the response contained no affidavit or other material refuting the statements allegedly made by the attorney general's office concerning notice.
Once a party moving for summary judgment has met its initial burden of production, the burden shifts to the non-moving party to establish that there is a triable issue of fact.Churchey v. Adolph Coors Co., 759 P.2d 1336(Colo.1988).
The essence of procedural due process is fundamental fairness.This embodies adequate advance notice and an opportunity to be heard prior to state action resulting in deprivation of a significant property interest.City & County of Denver v. Eggert, 647 P.2d 216(Colo.1982).
Section24-4-104(10), C.R.S. (1988 Repl.Vol. 10A) provides:
Written notice of the revocation, suspension, annulment, limitation, or modification of a license and the grounds therefore shall be served forthwith on the licensee personally or by mailing by first-class mail to the last address furnished the agency by the licensee.
In our view, the administrative procedure act ordinarily requires notice before suspension of a license would be effective.Here, the terms of the stipulation which indicate that it "shall become an Order of the Board when accepted by the Board and signed by an authorized Board member" do not eliminate a requirement for notice.
Further, the correspondence exchanged in connection with the stipulation, the unrebutted statement that the attorney general had advised respondent that the effective date of the license suspension would be when he received notice, and the hearing officer's finding that respondent had accepted single-shift assignments before he knew the suspension had become effective, reinforce the concept that, under these circumstances, due process required that respondent be provided notice that the stipulation had been accepted before he could be charged with a violation of the terms of that stipulation.
Accordingly, we conclude that the Board's order on this issue is both contrary to the evidence and contrary to law and must therefore be set...
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...such findings of evidentiary fact are contrary to the weight of the evidence. (Emphasis added); see also Colorado State Bd. of Nursing v. Lang, 842 P.2d 1383, 1387 (Colo.App.1992). Evidentiary facts are the historical facts underlying the controversy. Federico, 788 P.2d at 1272; Lee v. Stat......
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